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REvIEW MECHANISMS uNDER THE EPBC ACT

Chapter Twenty

Independent Review of the ENvIRONMENT PROTECTION AND BIODIvERSITy CONSERvATION ACT 1999 310

Chapter 20: Review Mechanisms under the EPBC Act and Access to Courts

Chapter 20: Review Mechanisms under the and Access to Courts

Key points

Review of administrative decisions ■ An outline of the internal review mechanisms (reconsiderations) available under the Act.

■ The function of judicial review as an avenue of external scrutiny under the EPBC Act.

■ The application of merits review to decisions made under the EPBC Act.

■ The limited scope of decisions made under the EPBC Act that are subject to merits review.

■ The issue of standing for administrative review of decisions made under the EPBC Act, whether or not the expanded definition under the Act is sufficient, and whether further expansion of the definition is warranted.

Access to courts ■ The importance of public interest litigation to community engagement in EPBC Act processes.

■ The issue of standing, whether or not the expanded definition under the EPBC Act is sufficient, and whether further expansion of the definition is warranted.

■ The perceived hurdles in commencing public interest litigation including undertakings as to damages and security for costs.

■ The application of costs protection measures to reduce the burden for public interest litigants.

■ Discussion of options to reduce perceived obstacles regarded as disincentives to public interest litigation.

Review of administrative decisions20.1 Administrative review refers to the process by which a person whose interests are adversely affected by

government decisions can challenge those decisions. The failure of a government official to make a decision required to be made under legislation can also be challenged. Administrative review is designed to safeguard the rights and interests of people who interact with government agencies.

20.2 There are two types of administrative review, judicial review and merits review, both of which are available under the EPBC Act. As there are fundamental differences between the two processes, a brief explanation of the processes follows.

20.3 It is important to mention, for the sake of completeness, that the EPBC Act, in common with other legislation, contains mechanisms for internal merits review of some decisions made under the Act. Before proceeding with the discussion on external review, it is appropriate to mention those internal review mechanisms that exist under the Act. These are referred to as reconsiderations.

311 Chapter Twenty REvIEW MECHANISMS uNDER THE EPBC ACT AND ACCESS TO COuRTS


Internal review mechanisms

Current provisions of the Act – reconsiderations20.4 There are two internal review or reconsideration mechanisms under the EPBC Act. These are:

■ Reconsideration of clearly unacceptable referral decisions; and

■ Reconsideration of controlled action decisions.

reconsideration of clearly unacceptable referral decisions

20.5 Reconsideration of clearly unacceptable referral decisions is contained in s.74C(3)(c) of the EPBC Act. This subparagraph provides that when the Minister makes a referral decision that is it is clear that the action would have unacceptable impacts on matters of NES, a proponent may request a reconsideration of that decision.

20.6 Section 78D outlines the procedure to be followed in this event. The Minister is required to publish a notice on DEWHA’s website providing the details of the decision and the reasons for decision. The public is invited to comment within 10 business days on the impacts that the action would have on matters of NES and also on the Minister’s proposal to refuse to approve the taking of the action.1

20.7 Within 10 business days after the end of the public comment period, the Secretary must prepare a report which details the impact the proposed action has, will have, or is likely to have on matters of NES and include reference to (and a copy of) the public comments received.2

20.8 The Minister must reconsider the decision within 20 business days after receiving this report. The Minister must then notify the proponent of the reconsidered decision.3

reconsideration of controlled action decisions

20.9 Section 78 of the EPBC Act relates to reconsideration of decisions made under s.75(1) about an action, that is, a decision on whether the action is a controlled action.

20.10 The Minister may revoke a decision (the first decision) made under s.75(1) if satisfied that the revocation and substitution of a new decision is warranted because:

■ substantial new information has become available, or there is a substantial change in circumstances that was not foreseen at the time the first decision was made which relate to the impact that the action has, will have or is likely to have on matters of NES;

■ the Minister believed the action would be taken in a manner identified under s.77A(1) and set out in the notice given under s.77, and the Minister is satisfied that the action is not being, or will not be taken, in the manner so identified; or

■ the action was not a controlled action because of a provision in a bilateral agreement or a declaration under s.33 or s.37 of the Act under an accredited management arrangement or authorisation process, and the relevant provision no longer operates in relation to the action.

20.11 Section 78A sets out the procedure for a request for reconsideration of a decision. Subsection 78A(2) provides that the request must be in writing and set out the bases on which the person thinks the decision should be reconsidered.

20.12 If a request for reconsideration is made by the proponent, then the assessment process is suspended until the Minister has made a decision on the request. If the Minister affirms the decision, the assessment process resumes.

1 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.74D(2) and (3).2 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.74D(3).3 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.74D(4).



20.13 If the request for reconsideration is made by any other person, the assessment continues but is subject, of course, to the outcome of the reconsideration process. under s.78B, the Minister must inform the proponent of any request for reconsideration that has been made, and invite comment on the request within 10 business days. The Minister must give the proponent such information relating to the request as he or she considers appropriate. This does not necessarily include the identity of the person seeking the reconsideration.4

20.14 Pursuant to s.78B(6), the Minister must publish on DEWHA’s Internet site the request and an invitation to comment within 10 business days as to whether any of those matters referred to in s.78(1) has any application to the action.

20.15 As soon as practicable after the end of the time in which comments can be made, the Minister must make a decision on the reconsideration request. He or she must notify both the person who made the request and the proponent of the outcome of the request together with reasons for the outcome. The Minister must also publish the outcome of the reconsideration on the Internet and provide reasons upon request.5

Key points raised in discussions – reconsiderations20.16 The reconsideration of EPBC Act decisions was raised during the face-to-face public consultations.6 It was

raised by stakeholders in the wind farming industry where the reconsideration provisions under s.78A had been used in respect of controlled action decisions for proposals.

20.17 The concern was the absence of any time limits on the reconsideration process and, therefore, the uncertainty in mitigating against the risk of reconsideration in proposal planning. There was also concern that this uncertainty could unduly delay projects.

20.18 vesta Wind Systems queried the necessity for this provision given the external review processes available under the Act (i.e. judicial review). Its view was that the section amounted to a low-cost review avenue that did not preclude a formal review application being made subsequently. This created a ‘double jeopardy’ situation in that two reviews could be undertaken about the same decision.

20.19 Babcock & Brown took issue with the open standing provisions and suggested that some limitation needed to be introduced.

Discussions of key points – reconsiderations

reconsideration of clearly unacceptable referral decisions

20.20 As mentioned earlier, reconsideration under s.74C of the Act relates to ‘clearly unacceptable’ referral decisions under the Act. The provisions relating to these decisions were inserted as a result of the 2006 amendments. They established a new process that allowed the Minister to make a prompt refusal for an action that would have unacceptable impacts on matters of NES.

20.21 Section 74D provides transparency in the reconsideration process by including procedural fairness to the proponent and public engagement in the process. It is noted, however, that there are no provisions relating to the preparation of a report by the Secretary, or to the matters the Minister must take into account in reconsidering the decision, including the public comments received.

20.22 The time limits contained in these provisions provide certainty for proponents and the public.

4 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.78B(2) and (3).5 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.78C.6 Public consultation - Clean Energy Council; Babcock & Brown Australia; vestas Wind Systems pers. comm. (Melbourne, 7-8 May 2009)



reconsideration of controlled action decisions

20.23 Section 78 reconsiderations deal with decisions on whether an action is considered to be a controlled action. Sections 78A, 78B and 78C were inserted in the Act as part of the 2006 amendments.

20.24 The Explanatory Memorandum relating to the Environment and Heritage Legislation Amendment Bill 2006 states:

This item inserts new sections … into the Act to provide a process for handling requests by persons, … for the reconsideration under section 78 of a decision by the Minister under section 75 whether or not an action is a controlled action. The purpose of this amendment is to provide greater transparency in relation to the reconsideration of section 75 decisions, by including formal consultation requirements.7

20.25 There are no limitations on the ‘standing’ of a person to request a reconsideration under this section and no time limits within which a reconsideration request is required to be made.

20.26 The absence of timeframes creates uncertainty for proponents and the public. The issue of standing is not limited to this particular provision and is dealt with in detail elsewhere in this chapter.

20.27 The call for fixed time limits to be included in this provision has been noted. However, consideration needs to be given to the establishment of a separate mechanism to cover the situation where new or unforeseen circumstances have arisen that were not considered at the time the first decision was made, which might occur outside any tight timeframe that may be imposed by the Act in the future. Any comments or observations on this particular issue are invited.

20.28 In relation to reconsiderations where an action is not being taken in the manner specified in a s.77 notice, it seems that a more appropriate mechanism should be developed to address this issue rather than using an internal review process. Any comments and observations on this point would be welcome.

Judicial review20.29 All administrative decisions made under the EPBC Act are subject to judicial review by the Federal Court

of Australia. Judicial review is the process whereby a person aggrieved by a decision made by a government official can have that decision scrutinised by an independent reviewer. The reviewing body is concerned only with whether there has been an error of law in the making of the decision, or whether there has been breach of procedural fairness.

20.30 In Australia, this common law right is also enshrined in legislation, namely the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and in s.39B of the Judiciary Act 1903.

20.31 In undertaking judicial review, the court does not examine the merits of the decision. The purpose of judicial review is to ensure that the decision-maker acted lawfully by not exceeding their authority and has followed correct legal procedures. The court will also examine whether, in making a decision, the decision-maker took into account all relevant considerations, and did not take into account irrelevant considerations. The court may also consider whether a decision is manifestly unreasonable given the matters that were available for consideration by the original decision-maker. This is not a reconsideration of the merits of the decision, but remains part of a process-oriented review.

20.32 In determining a judicial review case, the court examines the statement of reasons for decision and the material that was before the original decision-maker. If due process has not been followed, the options available to the reviewer are generally limited to setting aside the decision and referring the matter back to the decision-maker for reconsideration according to law.

20.33 An application for judicial review must usually be made within 28 days of the date of receipt of the document notifying of the reasons for the decision, the prescribed period under the ADJR Act.8 In appropriate cases, extensions of time can be sought.

7 Explanatory Memorandum, Environment and Heritage Legislation Amendment Bill 2006, para [198].8 Administrative Decisions (Judicial Review) Act 1977 (Cth) s.11(3).



Key points raised in public submissions – judicial review20.34 In those submissions that commented on this issue, the effectiveness of judicial review as an avenue for

independent scrutiny of decisions made under the EPBC Act was generally regarded as inadequate. As the Wilderness Society stated, ‘[I]n practice this means that as long as the reasons for a decision are carefully written so that they tick all boxes and are not irrational, decisions are very difficult to challenge – even where they may lead to major environmental damage’.9

20.35 Lawyers for Forests stated:

The accountability provided by allowing judicial review under the Act is useful in the sense of ensuring that decisions under the Act are made in accordance with the law. However, the fact is that this accountability is limited only to whether the decision is formally and procedurally correct admits the possibility that the wrong bases may underlie decisions without being subject to challenge. Judicial review does not require the Minister to make the best decision in the situation, or even to make a good or sensible decision.10

20.36 The limits of judicial review were given a different focus by other submitters whose views were expressed succinctly by the Wilderness Society as follows:

Given that the Federal Court has found that the public has no right to procedural fairness beyond the processes mandated in the Act, there is a need to increase the mandatory public consultation periods. This is particularly important where community groups and individuals may be vitally interested in actions under the EPBC but work and business commitments limit their time – eg. a 10 day consultation period may only give people who are not professional environmentalists a few late nights and a weekend to get all the information and make a submission. 11

20.37 The Wilderness Society recommended that the EPBC Act ‘should explicitly recognise the right to procedural fairness for the community, and ensure that timelines are adequate to enable meaningful community participation’.12

Discussion of key points – judicial review20.38 As a process, judicial review plays an important role in ensuring procedural fairness in decision-making. It is

not to be regarded as a back-door means of re-examining the merits of decisions, or an attempt to get around the process prescribed under the Act. Its purpose is clear, that is, to ensure that decisions that are made are made within confines of the decision-making process specified in the legislation and that the requirements for the making of decisions (whatever those processes might be), are observed.

20.39 It is interesting to note that since the commencement of the EPBC Act there have only been 20 judicial review cases. Of these, three have been successful, one was successful in part, ten applications were unsuccessful and six were discontinued.

20.40 The time limits for the commencement of judicial review applications have been noted above, however, it is unclear whether the EPBC Act could be amended specifically to reduce these timeframes for the purpose of promoting certainty and avoiding delay particularly in the EIA process.

9 Submission 153: The Wilderness Society, p.18.10 Submission 202: Lawyers for Forests, p.16.11 Submission 153: The Wilderness Society, p.17.12 Submission 153: The Wilderness Society, p.17.



Merits review20.41 unlike judicial review, which is governed by common law principles of natural justice as well as being given

legislative status under the ADJR Act, merits review is generally provided for in the legislation under which the relevant decisions are made.

20.42 Section 303GJ of the EPBC Act sets out those limited decisions that may be referred to the Administrative Appeals Tribunal (AAT) for merits review. In summary, the types of decisions made under the Act currently subject to merits review are:

■ permits for activities affecting protected species;

■ permits for the international movement of wildlife; and

■ advice about whether an action would contravene a conservation order.

20.43 In 2006, s.303GJ(2) was inserted into the EPBC Act. The effect of this amendment confined merits review to decisions made by a delegate of the Minister (that is, a bureaucrat, not an elected representative). Prior to this amendment, merits review was also available in respect of decisions made by the Minister.

20.44 The AAT performs the function of an independent, external reviewer of administrative decisions made under the EPBC Act. The AAT conducts a full merits review and, for the purposes of that review, exercises the same statutory powers and discretions as the original decision-maker, and is subject to the same limitations.

20.45 In undertaking a merits review, the AAT may have regard to the evidence that was before the primary decision-maker as well as any additional evidence that the parties put before it, either in documentary form or orally at a hearing.

20.46 It is open to the AAT as the reviewing body to affirm, vary or set aside the original decision; to remit it for reconsideration by the original decision-maker (with any directions or recommendations considered necessary); or to dismiss the application for review.

20.47 Section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT) Act provides that an application for review of a decision must be made to the AAT within 28 days after the day on which the person is given the reviewable decision (although leave may be sought to commence proceedings after this time limit in appropriate circumstances). However, this time limit can be varied, most often by the enactment pursuant to which the reviewable decision is made.

Key points raised in public submissions – merits review20.48 The issue of merits review was discussed by many submitters, most of whom were environmental non-

government organisations (NGOs), including the WWF, Humane Society International (HSI) and the National Parks Australia Council. However, a few individuals, academics and industry groups such as BP Australia also entered into the debate on this topic.

20.49 Overall, there was disappointment that merits review was only available for certain types of decisions. The consensus was that the EPBC Act required amendment to increase the scope of decisions subject to merits review, and especially, to include key decisions made under the EPBC Act.

20.50 There was support for the view that decisions relating to the referral and assessment process, and nomination and listings processes, regarded as the centrepiece of the Act’s regulatory regime, should be subject to merits review. It was also noted that decisions relating to matters of NES were not subject to merits review. The general view expressed by submitters commenting on this issue was that such decisions (for example, decisions whether to list a species on the threatened species list) should be subject to review on their merits.

20.51 There was considerable criticism of the 2006 amendment to the EPBC Act which removed decisions made by the Minister from the scope of merits review. Submissions called strongly for this amendment to be repealed, effectively re-subjecting Ministerial decisions to merits scrutiny. However, it should be noted that the scope of the earlier provisions for merits review was limited.



20.52 Merits review was viewed as a means of ensuring that administrative decisions were correct and that there was an appropriate level of consistency. It was considered critical to the openness, accountability and transparency of decisions made under the EPBC Act. As the National Parks Australia Council stated:

Without a proper merits review process, the operation of the Act is beyond the capacity of the legal system to ensure that administrative decisions are correct and the best that could have been made on the basis of the relevant facts. Coupled with the level of Ministerial discretion in the current Act, it is no surprise that the Act is seen so generally to be failing in its purpose.13

20.53 In relation to the costs and delays associated with expanded merits review for decisions made under the EPBC Act, some regarded possible delays as an integral part of the decision-making process, but which could be mitigated by strict timeframes for review.

20.54 Others, such as the Property Council, voiced concern, particularly about the delays that could be expected relating to development proposals, which might be considered contrary to the Government’s own policy of supporting development that is both sustainable and affordable.14

20.55 Some of the submissions focused on the body that was suitable to conduct merits review. While some thought that the AAT was the appropriate body and had demonstrated its ability to do so in deciding a number of significant environmental cases, this was not a view held by all. Other submitters regarded the AAT as too ‘generalist’ and advocated, instead, for the creation of a specialist environmental tribunal or the establishment of an Environmental Division of the Federal Court, both of which would recognise the importance of a thorough knowledge and understanding of environmental law and of the merits review process in achieving the objects of the Act.15

senate inquiry into the operation of the ePBc act

20.56 The debate about merits review was a significant theme in submissions made to the Senate’s Committee Inquiry into the operation of the EPBC Act.

20.57 In relation to the 2006 amendment revoking merits review for Ministerial decisions, the Senate Committee noted:

At the time the amendments were being considered, the then Minister justified the removal of merits review of decisions made personally by the Minister on the grounds that ‘where decisions are sufficiently important to be taken by the Minister as an elected representative, those judgment should not be overturned by an unelected tribunal such as the AAT. Despite this explanation, the Senate Scrutiny of Bills Committee expressed concern, remarking that it ‘finds the explanation that such important and complex decisions “should not be able to be overturned by an unelected tribunal such as the AAT“ obscure’. 16

20.58 The conclusion of the Senate Committee in relation to the issue of merits review is encapsulated in the following extract of the report:

… The committee is of the opinion that greater access to merits review for decisions taken under the Act may be appropriate in certain cases as it could have the overall impact of improving the quality of decision making under the Act.

The committee recognises that increasing the number of decisions under the Act that are subject to merits review could have resource implications both for the department and the AAT. The committee notes that the AAT already employs a range of specialists, including those with environmental qualifications or experience. It also notes that the Tribunal organises its work into Divisions that both reflect areas of significant workloads and which allow the Tribunal members to develop specialist expertise. 17

13 Submission 161: National Parks Australia Council, p.19.14 Submission 176: Property Council of Australia.15 Submission 153: The Wilderness Society.16 The Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and Biodiversity Conservation

Act 1999 (Cth): First report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 4 May 2009, para [6.63].17 Senate Committee Report, paras [6.74-6.75].



20.59 The Senate Committee made a recommendation in relation to merits review under the EPBC Act, suggesting that there was scope for the expansion of the types of matters subject to merits review under the Act, as follows:

Recommendation 10

The committee recommends that consideration be given to expanding the scope for merits review in relation to ministerial decisions under the Act, particularly in relation to:

■ whether an action is a controlled action;

■ assessment decisions; and

■ decisions on whether a species or ecological community is to be listed under the Act.

The committee recommends that the independent review examine this possibility in the first instance, and that the process of consideration should include consultation with the Administrative Appeals Tribunal. 18

20.60 The Coalition Senators’ Additional Comments expressed concern about the impact of expanding the scope for merits review as recommended by the majority report. The Coalition Senators stated that they ‘would encourage moves towards greater transparency in decision making rather than avenues that could increase the potential for appeal and therefore the delays that may be experienced’.19

20.61 The Australian Greens’ Additional Comments expressed particular concern about the 2006 amendments, and recommended the need to reinstate and expand the right to appeal the merits of key ministerial decisions under the Act.

Discussion of key points – merits review20.62 The submissions contained considerable criticism of the 2006 amendments which removed the right to merits

review for certain decisions made by the Minister under the Act.

20.63 The Coalition Government justified this decision on the basis that where decisions ‘are sufficiently important to be taken by the Minister as an elected representative, those judgment calls should not be able to be overturned by an unelected tribunal such as the AAT’. The Administrative Review Council (ARC) has argued cogently that ‘the fact that the decision-maker is a Minister … is not, of itself, relevant to the question of review. Rather, it is the character of the decision-making power … that is relevant’.20

20.64 As noted by Jason Cabarrús, there was also no evidence that these provisions had been abused or misused.21 There appears to be no reason why this legislative change should not be reversed.

20.65 The current provision, s.303GJ, which lists the categories of decisions subject to merits review, is very circumscribed given the multitude of decisions made under the EPBC Act. The list does not include most of the key decisions under the Act. In this regard, it should be noted, importantly, that those categories of decisions that are subject to merits review do not include any decisions which provide for public comment in the decision-making process.

20.66 There is a range of arguments against extending the provision for merits review. The referral, assessment and approval (EIA) process includes a number of decisions, including from whether a decision is a controlled action, to the type of assessment that should be undertaken, to an approval decision (which often has conditions attached). To permit merits review at each stage of this process would result in significant delays and costs to Government, to proponents, to the applicants for review (assuming any expanded standing provisions – see later for details), as well as to others involved in the development proposal. This would include local communities and, should merits review be made available at all or even some of the stages of the EIA process, could amount to these communities spending a considerable period of time (even years) in a state of uncertainty about their futures.

20.67 Key issues revolve around the level of judgment required to be applied in arriving at a decision (including the

18 Senate Committee Report, para [6.76].19 Senate Committee Report, Additional comments from the Coalition Senators, p.9620 Administrative Council, What Decision should be subject to Merit Review? (1999) para [5.21].21 Jason Cabarrús ‘Merits Review of Commonwealth Environmental Decision-Making’ (2009) 26 Environmental and Planning Law Journal 113, p.125.



application of any decision-making criteria or guidelines) and the transparency of the process in terms of how the decision is made. Other issues include permitting the public to test the correctness of decisions and, as mentioned above, the delays and uncertainty that can be involved in the merits review process, particularly when one considers that merits review decisions themselves can be appealed.

20.68 Notwithstanding the argument noted by ARC above, one view is that it is appropriate that major decisions impacting on the community at large should be made by the elected Government representative (i.e. the Minister) in whose judgment the electorate places trust that the right decisions will be made, and who can be held accountable by Parliament and at election time.

20.69 However, there are also arguments for the provision for merits review under the Act to be significantly extended. As Dr Chris McGrath has observed:

If the Minister or their delegate has ‘ticked all the right boxes’ and been careful in writing their reasons for decision under the EPBC Act, then what is essentially a very poor decision allowing highly damaging development may not be challenged. This leaves enormous room for political decision-making about a project, resulting in short-term, economic decision-making rather than the promotion of sustainable development. Decision-making subject to merits review would be expected to be less influenced by short-term, political considerations and more strongly based upon the evidence supporting or opposing a proposed development. Simply the existence of a right of merits review (as opposed to its exercise) can have a positive effect on the integrity of administrative decision-making, as decision-makers will act knowing of the potential that they may be required to justify their decision based on evidence in an independent court or tribunal.22

20.70 Some options for consideration when deliberating on any expanded merits review for decisions made under the Act include:

■ option 1: Better and more substantive criteria for decision-making should be developed to increase public confidence that decisions are made on the basis of the best evidence. This may involve an expanded role for advisory bodies.

■ option 2: Removal of certain discretionary powers which exist under the Act. For example, by replacing the test of ‘significant impact’ and the Ministerial determination of whether an action is a ‘controlled action’ with a list of designated developments following the example of Part 4 of the New South Wales Environmental Planning and Assessment Act 1979.

■ option 3: An increase in the public participation process as an alternative to merits review of decisions made under the Act by engaging the public in primary decision-making functions, would increase the transparency of the process, and may reduce the need to ‘test’ these decisions. While timelines would no doubt be extended in terms of decision-making under such a regime, the lack of control over the timeliness of the process that would result from merits review of all decisions made under the Act would be avoided.

■ option 4: Limited merits review as the appropriate model. For example, in the EIA process one possibility is to make merits review available for approval decisions (including conditions) made under the Act.23 Another possibility is to make merits review also available to decisions relating to determinations of whether or not actions are controlled actions for the purpose of the EPBC Act and the appropriate level of assessment.24

20.71 There may be other options that also warrant exploration.

20.72 The time limits for commencing applications for merits review set out in the AAT Act have been noted above. However, as mentioned, this time limit can be varied by amendment to the EPBC Act. It may be worth while considering whether this time limit should be reduced if merits review is expanded for the purpose of alleviating the undue delays.

22 Chris McGrath ‘Flying Foxes, Dam and Whales: using Federal Environmental Laws in the Public Interest’ (2008) 25 Environmental and Planning Law Journal 324, p.353.

23 Jason Cabarrús ‘Merits Review of Commonwealth Environmental Decision-Making’ (2009) 26 Environmental and Planning Law Journal 113, p.126.24 Chris McGrath ‘Flying Foxes, Dam and Whales: using Federal Environmental Laws in the Public Interest’ (2008) 25 Environmental and Planning

Law Journal 324, pp.353-5.



20.73 If merits review is expanded, the complexity of the environmental decisions that become subject to review is likely to increase, as well as the numbers of applications for review. This raises the issue (as discussed in the submissions) of whether or not the AAT is the appropriate body to deal with merits reviews of decisions made under the EPBC Act, or whether a specialist body should be created to hear and determine environmental merits review applications. It is noted that the ‘central purpose of the system of merits review is improving agencies’ decision-making generally by correcting errors and modelling good administrative practice’.25 This is also a matter that warrants further deliberation before production of the final report.

Legal standing

judicial review

20.74 under s.3(4) of the ADJR Act, only persons aggrieved by a government decision have a legal right to challenge that decision (known as standing). That is, any persons whose interests are adversely affected by the decision. This requires a person to show a special interest above and beyond that of the general public.

20.75 However, s.487 of the EPBC Act extends standing for the purposes of judicial review of administrative decisions made under the Act. Relevantly, s.487(2) provides that:

An individual is taken to be a person aggrieved by the decision, or failure or conduct if … (b) at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia an external Territory for protection or conservation of, or research into the environment.

20.76 Section 487(3) makes similar provision for organisations. The practical effect of these provisions is to make clear that individuals and organisations who fall within them are able to challenge decisions made under the Act.

merits review

20.77 It is important to note that the expanded standing provision contained in s.487 of the Act applies only to judicial review of decisions made under the Act. There is no equivalent provision relating to merits review and therefore, merits review is open only to those with appropriate standing under the AAT Act.

20.78 Section 27 of the AAT Act provides who may commence applications under that Act:

(1) Where this Act or any other enactment … provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.

20.79 This section goes on to provide that an organisation is taken to have its interests affected if the decision relates to a matter that is included in the pre-existing objects or purposes of the organisation.

Key points raised in submissions – legal standing

judicial review

20.80 The category of persons who have standing for the purposes of judicial review of administrative decisions made under the EPBC Act has been expanded by s.487(2) of the Act. While this increased standing was recognised as a significant reform when it was introduced, some commentators have suggested that it should be further extended to all persons, or those, who, at the very least, made submissions during the decision-making process.26 The argument for increased standing was put forward as providing a greater level of scrutiny by the public in decision-making affecting environmental matters.

25 Australian Government Administrative Review Council, Decision-Making: Accountability ‘Best Practice Guide 5, August 2007.26 See e.g. Submission 161: National Parks Australia Council.



merits review

20.81 The support for the expanded standing provisions referred to above was not limited to judicial review, but was also promoted for the purposes of merits review.

20.82 The Conservation Council (ACT Region) considered that the position relating to standing generally (including merits review) needed to be clarified and expanded. Its recommendation was that:27

For all challenges arising under the EPBC Act standing should be extended to all those who have made submissions during the decision making process or have a demonstrable interest or involvement in the protection or conservation of the environment, heritage or the specific area alleged to be threatened by the action. (Recommendation 37)

Discussion of key points – legal standing

judicial review

20.83 While the provision for standing in s.487(2) of the EPBC Act was an advance on the old Environment Protection (Impact of Proposals) Act 1974, as discussed below there are good reasons for the legislation to be amended through the adoption of an ‘open standing’ provision. The practical effect of this would be to permit any person who considers that a decision was not made in accordance with procedural requirements to bring an application to Court to have the decision-making process scrutinised and the validity of the decision determined.

merits review

20.84 As indicated earlier, the standing provisions set out in the AAT Act require a nexus between the decision under review and persons affected by that decision. This is the usual standard that applies to merits review of Government decisions. It affords appropriate protections to persons who are affected by Government decisions.

20.85 One view is that an individual or organisation who has made a submission during the decision-making process falls within this class and should be afforded standing. NSW environmental legislation makes such provision. The NSWEnvironmental Planning and Assessment Act 1979 provides for a defined category of persons referred to as ‘objectors’ who are permitted to make merits review applications in relation to development application decisions. under that Act, ‘objector’ means a person who has made a submission under s.79 (5) by way of objection to a development application for consent to carry out designated development.

20.86 If standing were to be expanded under the Act, there may be some value in considering whether a provision similar to that referred to above should be included in the EPBC Act in terms of those persons who made public comment during the EIA process.

27 Submission 055: Conservation Council (ACT Region), p.7.



Access to courts

Current provisions of the Act – access to courts

Public interest litigation

20.87 Public interest litigation involves members of the public commencing legal proceedings that will determine an important right or obligation affecting the community as a whole, or a significant part of it. Often they are ‘test’ cases, concerning questions of law that have not previously been considered judicially.

20.88 Public interest litigation is an important means of enforcing environmental law. It is regarded as having a vital role in the administration of the EPBC Act and in enhancing the transparency, integrity and rigour of government decision-making about activities which impact on the environment.

20.89 The issue of judicial review which is one aspect of public interest litigation has been discussed at length earlier in this chapter. It is appropriate to deal separately with access to courts as a second aspect of public interest litigation.

20.90 Environmental actions have a tendency engender a high level of interest and can involve complex issues of law. The parties are usually polarised in their beliefs and entrenched in their views. These factors, in addition to the public nature of the litigation, do not readily lend these types of actions to settlement by assisted dispute resolution methods, such as mediation. These factors can lead to the litigation taking an extended period of time to be disposed of by the courts and involving substantial costs.

20.91 A number of issues relating to public interest environmental litigation need to be referred to in general terms prior to commencing discussion of the submissions received on this topic.

legal standing – injunctions

20.92 Section 475 provides that if a person has engaged, or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of the Act, or the Regulations, the Minister or an interested person, may apply to the Federal Court for an injunction.

20.93 Subsections 475(6) and (7) deal with the issue of who has standing to commence such actions, and defines an ‘interested person’ in connection with individuals and organisations. Subsection 475(6), provides that an individual is an interested person if:

■ the individual’s interests have been, are or would be affected by the conduct or proposed conduct; or

■ the individual has engaged in a series of activities for the protection or conservation of, or research into the environment, at any time in the 2 years immediately before the conduct, or in the case of proposed conduct, before the making of the application for the injunction.

20.94 A similar definition is contained in subsection (7) relating to organisations which may also be deemed to be interested persons for the purposes of s.475.



undertaking as to damages

20.95 As a general rule, a person wishing to restrain the activities of another by way of an interim or interlocutory injunction (i.e. an injunction granted by a court after a preliminary hearing only) must provide what is referred to as an undertaking as to damages. This means that the person seeking the injunction agrees to submit to any order the court may make for the payment of compensation to persons who may have been adversely affected by the operation of the interim injunction at the conclusion of the legal proceedings.

20.96 Previously, that rule was expressly excluded in the EPBC Act by s.478 which provided:

The Federal Court is not to require an applicant for an injunction to give an undertaking as to damages as a condition of granting an interim injunction.

20.97 Section s.478 was repealed by amendment to the Act in 2006. This means that potential applicants are now exposed to the payment of potential damages consequent upon the granting of an interim injunction.

security for costs

20.98 This issue is relevant when the party instituting the proceedings has limited funds which is often the case in public interest litigation. The respondent to the claim may make an application to the court for what is referred to as security for costs.

20.99 This means that the court may order an applicant to provide security in some manner or form of an amount to offset the costs likely to be incurred by the respondent to the action to cover the event that the respondent is awarded costs.

20.100 The court takes into account a number of factors before making an order for security for costs apart from the financial position of an applicant, to ensure that applications for security for costs cannot be used as a means to stifle legitimate litigation.

costs

20.101 In legal proceedings, generally, costs ‘follow the event’. This means that as a general principle, a successful party is entitled to an order that the unsuccessful party will pay the legal costs they have incurred in running or resisting the court proceedings.

20.102 Of course, the award of costs is at the discretion of the courts, and if the specific circumstances of the case warrants it, alternative costs orders may be made.

Key points raised in public submissions – access to courts20.103 The role played by the public in challenging decisions under the EPBC Act and in enforcing breaches of

the Act was recognised in the submissions. It was thought that the Act must contain robust provisions that enshrine these third party rights to challenges.

20.104 A strong view came through that significant barriers make it difficult for the public to play this important ‘watchdog’ role. The clear message was that the rights of third parties to challenge decisions under the Act must be improved and protected.

20.105 The submissions highlighted a number of perceived obstacles to public interest litigation. These are dealt with separately below.

legal standing – injunctions

20.106 The issue of a person’s right to commence legal proceedings relating to decisions made under the EPBC Act was identified as a significant issue by many environmental NGOs. They suggested that all restrictions on third party actions should be removed by broadening the standing provisions.

20.107 A few considered that the provisions contained in s.475 of the Act operated to allow sufficient interest groups to commence public interest litigation.




20.108 In the submissions dealing with this topic, the 2006 repeal of s.478 of the EPBC Act was regarded as a retrograde step. This section prohibited the making of an undertaking as to damages as a condition of granting an interim or interlocutory injunction under the Act. Its removal has left public interest litigants (mainly environmental NGOs) exposed to an order for damages (which could be significant) in the event that their litigation is unsuccessful.

20.109 The generally accepted view among submitters was that this protection should be reinstated.

security for costs

20.110 Another factor seen as a hurdle to public interest litigation was the risk of an application for security for costs being made by opposing parties. The effect of this type of application was seen as an impediment to individual litigants and community organisations who had little resources to fund their actions without the added obstacle of having to find funds to secure the costs of opposing parties.

20.111 While the law provides existing protections, the possibility of having to resist a security for costs order was perceived as an added burden on public interest litigants. It was considered that public interest litigants required legislative protection from applications for security for costs.28

costs

20.112 The threat of court costs on individuals and community organisations was seen as a disincentive to commencing public interest litigation. Pro bono assistance is limited and the costs of briefing a properly resourced team are significant. Added to this is the risk of exposure, potentially, to the costs of opposing parties if the litigation is unsuccessful.

20.113 The Conservation Council (ACT Region) in their submission examined in detail the costs issue in respect of several recent public interest environmental cases. It noted by way of conclusion that:

These cases illustrate that there is no clear rule about when costs will follow or the quantum of those costs. yet all the judgements recognise that these cases are brought in the public interest on issues that a significant section of the community supports, and that have an important role in defining the application of the Act and merited judicial consideration. 29

20.114 In a recent letter written to the Environment Minister by The Australian Network of Environmental Defender’s Offices (ANEDO), the issue of costs in public interest litigation was also raised:

[T]he significant benefits of public interest litigation mean it should not be impeded by the costs allocation rules.

Despite the broad standing provisions incorporated into the Act, the financial consequences associated with the litigation process equate to an obstacle that many environmental, public interest and community oriented parties are unable to surpass.

The situation that currently exists in federal public interest environmental litigation in regard to costs, is one where costs follow the event; i.e. in addition topaying their own legal costs, an unsuccessful litigant is additionally required to pay the legal costs incurred by the opposing party. This concept is generally accepted as being a fair and rational approach to managing the issue of costs where the matter is between two parties having individual and typically financial interests to advance, but is thoroughly inadequate when dealing with the issue of public interest litigation. 30

28 Submission 202: Lawyers for Forests.29 Submission 055: The Conservation Council (ACT Region), p.43.30 Letter from the Australian Network of Environmental Defender’s Offices to the Minister for the Environment, Heritage and the Arts, 5 March 2008.



20.115 The ANEDO suggested that avenues to ‘rectify the current inadequacies relating to costs that exist within the Act’ might include the inclusion of an own costs order rule into the Act, whereby both parties to a proceeding are liable solely for their own costs such as that contained in s.4.1.23 of the Integrated Planning Act 1997 (Qld). In this regard, the ANEDO noted that the enactment of this provision had not resulted in an ‘opening of the floodgates’ response which was often tendered as a potential consequence of actions that facilitate public access to the litigation process.31

20.116 The Conservation Council (ACT Region) agreed that reform of the EPBC Act was necessary:

to address the costs issue and it is appropriate that a limitation on costs be inserted into the Act particularly in respect of cases brought against the Minister. At the very least the Act should set out the criteria and weight to be accorded to the various factors that must be considered when deciding costs orders for actions brought under the EPBC Act. 32

20.117 The submissions raised a number of specific suggestions going to the issue of costs, including:

■ An amendment to the EPBC Act or the Federal Court Rules to insert a provision allowing public interest litigants to apply to the Court at the beginning of a case for a public interest costs order to avoid the usual rule as to costs as recommended by the Australian Law Reform Commission in 1995 or modeled on s.49 of the Judicial Review Act 1991 (Qld);33

■ Legal aid for public interest environmental litigation at a federal level should be reestablished for cases having substantial legal merit and administered in a similar manner to the existing New South Wales legal aid scheme;34

■ the incorporation of a protective costs order in the Act, which enables a court to make an order affirming that the claimant will not (regardless of the outcome) be required to pay the costs of other parties to the proceedings;35

■ amendment to the EPBC Act, or the Federal Court Rules to allow the Court to grant orders that each party to a proceeding bear its own costs;36 and

■ the provision of explicit recognition for maximum costs orders under which a public interest litigant can apply to the Court for an order prescribing the maximum costs exposure of the parties.37

senate inquiry into the operation of the ePBc act

20.118 The report of the Senate Committee’s inquiry into the operation of the EPBC Act deals with the issue of public interest litigation. The Committee summarised the main issues relating to costs as follows:

The committee heard evidence that the costs associated with litigation, most notably the threat of adverse costs order, orders for security for costs and undertakings as to damages, are a prohibitive barrier to those wishing to challenge or seeking to enforce decisions made under the Act. 38

20.119 The Senate Committee also noted the 2006 amendment which repealed the former s.478. The Committee commented that this amendment, which now allows for undertakings as to damages to be ordered by the court upon the hearing of applications for interlocutory injunctions, has increased the exposure of public interest litigants to the risk of having to pay damages should damages flow from the court’s grant of that interim injunction.

31 Letter from the Australian Network of Environmental Defender’s Offices to the Minister for the Environment, Heritage and the Arts, 5 March 2008.32 Submission 055: The Conservation Council (ACT Region), p.44.33 Submission 017: Dr Chris McGrath.34 Submission 017: Dr Chris McGrath.35 Submission 190: Friends of the Earth (Australia).36 Submission 190: Friends of the Earth (Australia).37 Submission 190: Friends of the Earth (Australia).38 Senate Committee Report, para [6.35].



20.120 In the Additional Comments appended to the Senate Committee’s report, the Australian Greens commented that in their view, a matter for particular concern was the disincentive to public participation caused by the risk of orders for security costs and the threat of costs following a court action.

Discussion of key points – access to courts

legal standing

20.121 The expanded standing provisions set out in s.475 of the EPBC Act allow greater scope for public interest litigation than many other Acts.

20.122 The provisions contained in the EPBC Act allow many interested persons (which includes both individuals and organisations) whose interests would be affected by the conduct or proposed conduct to commence proceedings, as well as those individuals and organisations that have a proven interest and involvement in the protection of the environment through either conservation or research.

20.123 yet some legislation, both Commonwealth and State, goes further by containing ‘open standing’ provisions. The Trade Practices Act 1974 (Cth) is one example. Most NSWs environmental legislation is similar – most notably, section 123 of that State’s Environmental Planning and Assessment Act 1979. These provisions have proved effective and there is no evidence of these provisions being abused. There is therefore reason for the EPBC Act to follow suit, as several submitters have called for.


20.124 The removal of s.478, that is, the prohibition on the granting of an undertaking as to damages on the making of an interim injunction, produced a strong response from many of the submitters dealing with this issue of access to the courts.

20.125 The Explanatory Memorandum published in relation to the Environment and Heritage Legislation Amendment Bill (No. 1) 2006 mentioned the repeal of this section. It states:

This amendment brings the Act into line with other Commonwealth legislation where the Federal Court has the discretion whether or not to require an application for an injunction to give an undertaking as to damages as a condition of granting and interim injunction.39

20.126 Dr Chris McGrath considers this argument disingenuous. ‘While it is true that the Federal Court has a discretion not to require an undertaking as to damages from an applicant for interlocutory relief, in practice that discretion is illusory as the Court will invariably require such an undertaking.’40

20.127 The argument in the Explanatory Memorandum was, more generally, unconvincing. The fact that only one Commonwealth Act contains a certain type of legislative provision is no reason for it to be repealed if the provision is a useful one.

20.128 While there has been no legislative equivalent to s.478 in other jurisdictions, it is noted that it has been the general practice of the NSW courts not to require undertakings for damages. The courts have done so out of recognition of the importance of public interest litigation and how the ordering of undertakings for damages can stymie such litigation. For this reason, there is a case for s.478 to be reinstated.

39 Explanatory Memorandum, Environment and Heritage Legislation Amendment Bill 2006 (Cth), para [763].40 Chris McGrath ‘Flying Foxes, Dam and Whales: using Federal Environmental Laws in the Public Interest’ (2008) 25 Environmental and Planning

Law Journal 324, p.352.



security for costs

20.129 The submissions call for inclusion of a provision in the Act to provide protection from security for costs applications in challenges and enforcement actions brought under the EPBC Act.

20.130 A major concern in the submissions was that such applications may be used as part of a litigation strategy of attrition to ‘wear down’ public interest litigants. In this respect, there are already significant inbuilt protections in the Federal Court Rules and in judicial precedent designed to prevent the inappropriate use of security for costs applications. Whether these existing protections are sufficient is a matter for due consideration.

costs

20.131 The submissions identified the risk of potential costs orders as major concern in public interest litigation. To alleviate these concerns, it may be that certain protections could be incorporated in the EPBC Act to ensure that meritorious litigation is not discouraged. Any such amendment to the Act would need to be balanced with protections against frivolous or vexatious applications.

20.132 The expanded standing provisions are directed to engaging the community in the decision-making process. That objective should not be ameliorated by inadequate costs protections in cases where there is a legitimate public interest claim.

20.133 A number of suggestions raised in the submissions would require amendment to the EPBC Act or the Federal Court Rules. They are:

■ allowing public interest litigants to apply to the court at the beginning of a case for a public interest costs order;

■ introducing a specific provision allowing the court to grant orders that each party to proceedings bear their own costs;

■ introducing a ‘cap’ or limit on the amount of costs public interest litigants would have to pay in the event that they were unsuccessful;

■ establishing a litigation fund to fund important legal challenges under the Act; and

■ re-establishing Commonwealth-funded legal aid for public interest environmental litigation.

20.134 Of these proposals, the second appears to have most merit in that it allows the Court the discretion to make whatever it considers is the most appropriate costs order in all the circumstances of a particular case. However, comments or observations on all these proposals is invited and would be appreciated.

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