Andrew Edgar photoBY ANDREW EDGAR

As has been widely reported in recent weeks, in the wake of the successful Federal Court challenge to the Commonwealth government’s approval of the Adani Coal mine, the Government is proposing the repeal of s 487 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the ‘EPBC Act’). That provision extends standing for judicial review challenges to administrative decisions made under the Act. This post explains the significance of s 487 and the principles of standing law that would apply if it is repealed.

Why was s 487 included in the EPBC Act?

The EPBC Act replaced the Commonwealth’s initial form of environmental impact assessment legislation, the Environment Protection (Impact of Proposals) Act 1974 (Cth). The 1974 Act is significant for several reasons.

First, it was consciously designed to discourage litigation challenging the administration of its provisions. The Minister for Environment and Conservation in his second reading speech recognised that similar legislation in the United States, the National Environmental Policy Act 1969, had been the subject of substantial litigation. The then Commonwealth Government’s primary solution was to make the environmental impact assessment system discretionary. The Government was largely successful in achieving this aim. Very few cases were brought challenging decisions made under that Act, although some of the cases that were litigated became landmark constitutional and administrative law cases.

The second reason is that one of the landmark administrative law cases, Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, established the modern principles for standing. That case established the ‘special interest’ test. The High Court determined that the Australian Conservation Foundation did not have standing to challenge an apparently straightforward breach of the 1974 Act. Justice Gibbs gave the primary judgment. In his explanation of the traditional rules of standing, he stated:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.

The message was clear. At common law, applicants must have a personal interest affected by the decision to have standing and if not, courts are willing to accept an administrator’s non-compliance with legislation.

The 1999 EPBC Act transformed Commonwealth environmental law in numerous ways, including changing the approach to judicial review. Rather than seeking to deter judicial review, s 487 was specifically enacted to extend standing and accordingly facilitate judicial review. Section 487 does so by enabling individuals and groups (who have objects concerning the conservation of, or research into, the environment) to bring proceedings if they have engaged in research or conservation activities in the previous two years. The Parliamentary Committee reports prior to the enactment of the EPBC Act highlight that open standing was suggested but the government thought the breadth of the extended standing provision was appropriate. Extended standing provisions were familiar at the time, having been included in prior legislation, Endangered Species Protection Act 1992 (Cth) s 131 and the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 58A.

The picture presented so far of the Australian Conservation Foundation case representing general standing law and the EPBC Act providing an extension does not fully reflect the legal landscape at the time the EPBC Act was enacted. The reality was in fact more complex due to a series of Federal Court cases that liberalised the ‘special interest’ test established in Australian Conservation Foundation but without changing its primary language. The most well-known of these cases was Justice Sackville’s decision in North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492. Environmental groups may be granted standing under this liberal approach when they satisfy the court of particular matters — such as recognition by governments, the nature of their membership, and the relevance of their prior activities. Like s 487 of the EPBC Act, the liberalisation cases provide a qualified pathway for environmental groups to bring judicial review challenges to administrative decisions.

Reasons for extending standing: rule of law and litigation expertise

There have been a very small number of judicial review challenges to decisions made under the EPBC Act. My count is 22 cases but barristers Stephen Keim and Chris McGrath calculate them to be approximately 30. In research published in 2011, I found that challenges to administration of the EPBC Act based on breach of its provisions were much more likely to be successful than challenges claiming breach of procedural fairness, challenges claiming that there was a failure to consider relevant matters, or claims of inadequate application of the Act’s ecologically sustainable development principles. My research confirmed submissions by environmental groups to a review of the EPBC Act in 1999 that although judicial review may have been facilitated by s 487, such review is a relatively limited accountability mechanism.

Yet judicial review by individuals and groups with environmental interests nevertheless plays an important role in holding officials accountable. In administrative law scholarship, extending standing to allow such litigation is justified on rule of law principles. Extended standing broadens the range of persons who may bring proceedings to ensure, at the minimum, that there is compliance with particular provisions of legislation. Environmental legislation such as the EPBC Act contains provisions designed to ensure consideration by officials of various aspects of the environment. Environmental groups and like-minded individuals are likely to be the only persons with an interest in ensuring compliance with such provisions. The developer’s interest, on the other hand, will be to reduce the cost and delay of seeking the required approvals and to limit any regulatory restrictions on the scope of their development. Accordingly, their interests will focus on minimising the effectiveness of environmental legislation rather than the rule of law goal of ensuring compliance with statutory requirements.

This rule of law significance of standing has been acknowledged by the United Kingdom Supreme Court. In the 2012 case, Walton v Scottish Ministers [2012] UKSC 44 at 94, Lord Reed observed:

In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.

Courts in the United Kingdom have also supported standing for environmental groups for reasons relating to the technical nature of environmental litigation. For example, in R v Inspectorate of Pollution; Ex Parte Greenpeace (No 2) [1994] 4 All ER 329 Otton J accepted that Greenpeace should have standing due to its capabilities as a litigant relative to other potential litigants such as local residents. Justice Otton stated that Greenpeace’s expertise in environmental matters, such as having access to scientific and technological experts, enabled it to ‘mount a carefully selected, focused, relevant and well-argued challenge’.

The principles that would apply if s 487 is repealed

What standing law principles would apply if s 487 is repealed? Specifically, would the courts apply the special interest test as in the Australian Conservation Foundation case to exclude standing for environmental groups, or would they apply the liberalised version reflected in the North Coast Environmental Council case?

It is highly likely that the liberalised version would be applied. It has been accepted by courts in South Australia, Queensland, Victoria, and New South Wales. It was also recently confirmed by the Full Court of the Federal Court in Animals’ Angels e. V. v Secretary, Department of Agriculture [2014] FCAFC 173. In that case the Full Court accepted that an animal welfare organisation had standing to challenge decisions concerning a licence to export livestock. The Full Court’s reasons for making this finding included that it had been recognised by the relevant Commonwealth department, had devoted financial resources to animal welfare in Australia, that its activities in Australia intersected with its objects as an association, and that its objects related directly to the nature of the decision under challenge (para [120]). The Full Court also stated that this approach to the special interest test is consistent with the High Court’s recent decision in Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50.

The likely consequence of the liberalised approach to the special interest test for standing being applicable if s 487 is repealed, is not that environmental groups will necessarily be excluded from challenging decisions made under the EPBC Act but that courts will have to make the complex, multifaceted, assessments required by such tests. I agree with Stephen Keim and Chris McGrath that this is likely to tie up courts in technical disputes rather than issues concerning compliance with legislative provisions.

Conclusion

The extended standing provision of the EPBC Act provides a clear test for environmental groups and like-minded individuals to be granted standing. Repealing that provision may result in a less clear test being applicable but will not necessarily exclude environmental groups from challenging decisions made under the EPBC Act. In their own way, Australian courts have developed a test for standing that enables public-interest groups to challenge government action that does not comply with the relevant legislation. This development is unlikely to now be regarded as a radical step but as representing a modern understanding of the rule of law.

Dr Andrew Edgar is a Senior Lecturer at the Sydney Law School, University of Sydney.

Suggested citation:  Andrew Edgar, ‘Proposed repeal of s 487 of the EPBC Act: the end of litigation by environmental groups?’ on AUSPUBLAW (7 September 2015) <https://auspublaw.org/2015/09/proposed-repeal-of-s-487/>.

 

The Senate Committee on the Environment and Communications is currently conducting an inquiry into the Environmental Protection and Biodiversity Conservation Amendment (Standing) Bill 2015. Submissions are due on Friday 11 September.