Managing the risk from development opponents

The Federal government has introduced a Bill which aims to prevent conservation organisations (and individuals) from commencing appeals against developments. Despite the amendments, project proponents are still at risk from third party appeals.

Will it reduce appeals by conservation groups?

On 20 August, the Federal government introduced the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 into the House of Representatives. The proposed amendments to the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) include the repeal of section 487 which allows persons involved in conservation to apply for judicial review of the Minister’s decision. It extends ‘standing’ for applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to include a person aggrieved as:

  • An individual who lives in Australia and who has been engaged in environmental protection during the previous two years;
  • An organisation or association whose objects and purposes include environmental protection and which has been actively engaged in protection or conservation of, or research into, the environment during the previous two years.

This proposed amendment came as a result of the recent decision of the Federal Court to overturn the Federal Government’s approval of Adani’s Carmichael coal mine in central Queensland. The decision sets aside the Carmichael mine’s EPBC Act approval because the Minister failed to have regard to conservation advices for two Federally-listed vulnerable species, the Yakka Skink and Ornamental Snake.

If the legislation passes it will remain to be seen if conservation organisations (and individuals) would still be able to seek judicial review of decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth). A recent decision of the High Court of Australia seems to indicate that the Court is unwilling to take a narrow view on who is considered a person aggrieved.

The amendments would not impact section 475 of the EPBC Act which allows conservation organisations (and individuals) to seek injunctions to prevent contraventions of the Act.

The Bill has been referred to the Senate Environment and Communications Legislation Committee for review and report on 12 October 2015.

If you have any questions about these issues, please contact Sarah Wilson or Anthony Spence on (03) 6235 5176.

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