The Abbott government wants to repeal a section of our national environmental laws that gives environmentalists and environment organisations “standing” to challenge the Environment Minister’s decisions in court.
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As you will have heard in the news, the Abbott government wants to repeal a section of our national environmental laws that gives environmentalists and environment organisations “standing” to challenge the Environment Minister’s decisions in court.
The Bill is currently before the House of Representatives, and it has been referred to a Senate Committee for further consideration. The Senate Committee is calling for submissions from the public.
The Bill proposes to repeal section 487 of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). This is one more terrible attack in a long line of terrible attacks on our national environmental laws in recent years.
“Standing” refers to the right to bring a court challenge. In legal terminology, those without standing have no right to go to court, even if they have a well founded complaint about the law not being followed. These “standing” provisions contained in section 487 have been a feature of the EPBC Act since it was first introduced under John Howard in 1999.
Our legal system readily accommodates grievances from those whose property rights or personal interests are at stake. Historically at least, the law has been far less accommodating of those seeking to enforce something in the public interest, and if you read the law reports you will come across references to the need to keep out “busy bodies” or those with “mere intellectual and emotional concerns”.
Statutory standing laws, like the one that the government is proposing to repeal here, remedy the law’s narrow focus by ensuring that environmentalists and environment groups can go to court and enforce the law.
Section 487, says that provided they can establish their bona fides by having engaged in some relevant environmental activities in the past two years, an individual environmentalist or an environment organisation can challenge the legality of a decision under the Act.
In practice, what this means is that the issue of standing to bring a case (a rare occurrence anyway) can be dealt with quickly and with a minimum of fuss. This ensures the court is free to focus on the real substance of the issue rather than having to deal with procedural questions’ which only add expense and delay to court processes – something which is in no-one’s interest.
Standing provisions like Section 487 are found in a range of environmental laws (although not all – many Australian governments have been reluctant to include them). The existence of such provisions is recognition of the desirability of decision making under environmental laws like the EPBC Act being open to scrutiny, and the need to provide an avenue to ensure that Ministers charged with the responsibility of administering such laws are accountable for their actions.
It’s simply outrageous for Attorney General George Brandis to describe Section 487 as a “red carpet for vigilantes”. This extreme language reflects the government’s attempt to exploit the issue for short term political gain, and also a deep hostility to the idea that individual citizens and non-government organisations could possibly have a role in defending the public interest in ensuring compliance with laws like the EPBC Act.
A government that believes that it in effect ought to be above the law and above scrutiny can only be bad for democracy. Section 487 is a key accountability mechanism in what is an already heavily compromised and relatively weak national environmental law. It needs to be strengthened and extended, not repealed.