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picture of Professor Samantha Hepburn

Professor Samantha Hepburn

Samantha Hepburn is a Professor at the School of Law, Deakin University. She teaches and researches in the area of property and land law, as well as mining, energy and environmental law and has published books and articles in these areas.

Originally published in The Conversation on 19 August 2015.

Federal Attorney-General George Brandis yesterday announced plans to change the national environmental legislation to stop green groups seeking judicial review of environmental approvals.

Brandis argues that this significant change in the scope of the Environment Protection and Biodiversity Conservation Act (EPBC Act) is necessary to protect Australian jobs from 'radical activists' who bring 'vigilante litigation' against the government.

He is seeking to repeal section 487 of the EPBC Act, arguing that it 'provides a red carpet for radical activists wanting to use aggressive litigation tactics to disrupt and sabotage important projects'.

But what does section 487 of the EPBC Act really do, and how will its removal affect the operation and effect of our national environment legislation?

Standing order

Section 487 was designed to address issues of 'standing' – a legal term that broadly means an individual or group’s right to challenge an approval on the basis that they are either affected by it or have a special interest in the outcome.

This section works to prevent environmental groups' standing from being disputed in judicial reviews of approvals under the EPBC Act, thereby ensuring that organisations such as the Mackay Conservation Group, which brought a successful action against the approval of Adani’s Carmichael coal project, can challenge approvals where they see fit.

Section 487 (2) of the Act says:

An individual is taken to be a person aggrieved by the decision, failure or conduct if:

(a) the individual is an Australian citizen or ordinarily resident in Australia or an external Territory; and

(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 or an external Territory for protection or conservation of, or research into, the environment.

This passage therefore removes the need for an applicant to prove that they have been adversely affected by an approval decision or that they have a special interest in it. The group’s status as an established Australian conservation organisation is enough to satisfy the court that they have the right to mount a challenge.

This extended standing, which allows conservation organisations to seek judicial review, is the basis of Brandis’s objection to the legislation’s current form, which in his view facilitates 'aggressive litigation tactics' by these groups.

Giving green groups the right to act

Section 487 was initially implemented to overcome the problem of environmental and conservation groups being unable to bring actions on behalf of affected communities if they are not part of that community themselves. To activate section 487, the environmental group must have engaged in environmental research or activities in the previous two years, and have environmental research or protection included in its objects of association.

Section 487 does not advocate 'open standing', whereby anyone can bring an action for review, but it does authorise 'representative standing', in which groups can act on behalf of an affected community. This is a crucial component of a national environmental act which seeks to promote rigorous and effective environmental review for approvals that potentially affect matters of national environmental significance – such as the development of Queensland’s Galilee Basin coal deposits.

Removing section 487 and abolishing this extended standing will effectively preclude environmental groups from acting on behalf of affected communities and from performing their important function as a watchdog.

This would take Australia’s national environmental legislation all the way back to its 1974 predecessor, a piece of legislation that was expressly designed to minimise judicial review by environmental groups.

Such an move is contrary to the express recommendations of two former Australian Law Reform Commission proposals (see here and here), and inconsistent with the altered landscape that we find ourselves in today – where resource conflicts, heightened environmental risks, climate change, and technological advancements such as fracking pose enormous threats to the environment.

Robust environmental review by focused, engaged, representative organisations has never been more important. Rolling back the legal provisions that allow this to happen would be a backward step.