Law Reform · Energy & Climate

Explainer: why we need public standing

20 August, 2015

The Productivity Commission has noted that ‘there is a public interest in allowing third parties to bring judicial review applications’

Background on community access to the EPBC Act

A lot of discussion at the moment is about who should be able to challenge the lawfulness of federal environmental decisions in Court.  Lawyers often call the ability to sue ‘standing’ or ‘Locus standi’.

Prior to the introduction of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), it was difficult for individuals or community groups to protect Australia’s precious environment and heritage.  To bring a proceeding to court they had to show either a private right or a ‘special interest in the subject matter’, that is, damage greater than that suffered by an ordinary member of the public[1].

The case law gave rather narrow definition to ‘special interest’, for example:

  • "The courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings"[2]
  • "likely to gain some advantage, other than the satisfaction of righting a wrong’,[3] adding that a group needs something more than ‘a mere intellectual or emotional concern."[4];

However “The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest”.[5]  As such there were some ambiguous boundaries to the definition and sometimes conflicting judgements, for example: whether objects of the organisation must be consistent with the subject matter;[6] or whether the organisation can show a commercial interest, like being able to sell T-shirts with pictures of species to raise funds.[7]

When the Howard Government introduced the EPBC Act in 1999, section 487 extended the standing to include an organisation or an individual that has undertaken a series of conservation or environmental research activities at any time in the last two years.[8]

The Senate Committee reviewing the EPBC Bill heard from industry, including the Minerals Council of Australia, which stated that the standing was too wide and "would increase the likelihood of frivolous and vexatious litigation, thereby delaying environmental assessment and approvals".  It also heard from community groups that the standing was too narrow, but the Committee ultimately concluded: "the standing provisions of the Bill reach a fair balance between enabling public involvement in enforcement of the Bill and ensuring that decisions under the Bill are not unnecessarily delayed or impeded by vexatious litigation."[9]

Operation of the standing provisions so far

An independent review of the EPBC Act in 2009 found that the standing provisions should be expanded in order to further promote the sustainability of Australia’s economic development.[10]

The restrictive nature of the current standing provisions is demonstrated by the recent report which shows that third party appeal rights have only affected 0.4% of all projects governed by the EPBC Act.

Why We Need Public Standing

The Productivity Commission has noted that ‘there is a public interest in allowing third parties to bring judicial review applications’.[11]

If you would like more information about standing, please see an article by Chief Judge Brian Preston here, and a factsheet prepared by QPILCH here.

If you want to ask the government to preserve your rights to protect the environment sign our petition here.

You can find out more at our public interest environmental litigation seminar on 6 October 2015 at Banco Court.

 


[1] Cheatley v R (1972) 127 CLR 291

[2] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35.

[3] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530.

[4] Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552.

[5] Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552.

[6] Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 70, 73; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250Allans v Transurban.

[7] Central Queensland Speleological Society Incorporated v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512.

[8] Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 487.

[9] The Senate Committee’s comments on the EPBC Act’s standing provisions can be found here.

[10] The article can be found here.

[11] The Productivity Commission’s November 2013 Research Report can be found here.