Samantha Hepburn writes in The Conversation (31.10.16) about how Prime Minister Malcolm Turnbull's proposed changes to Australia's national environment act will significantly reduce judicial oversight on environmental decisions.
'Prime Minister Malcolm Turnbull is seeking changes to Australia’s national environment act to stop conservation groups from challenging ministerial decisions on major resource developments and other matters of environmental importance.
'Turnbull is reviving a bid made by former Prime Minister Tony Abbott to abolish Section 487 of the Environment Protection and Biodiversity Conservation Act (EPBC Act) - a bid rejected in the Senate in 2015. If it goes ahead, the change will significantly diminish the functionality of the act.
'The EPBC Act, introduced by the Howard government in 1999, has an established record of success. Judicial oversight of ministerial discretion, enabled by expanded standing under Section 487, has been crucial to its success.
'Section 487 allows individuals and groups to challenge ministerial decisions on resources, developments and other issues under the EPBC Act. An organisation can establish standing by showing they have engaged in activities for the “protection or conservation of, or research into, the environment” within the previous two years. They must also show that their purpose is environmental protection.
'Repealing this provision would remove the standing of these groups to seek judicial review of decisions. Standing would then revert to the common law position. That means parties would need to prove they are a “person aggrieved” by showing that their interests have been impacted directly.
'Many environmental groups will be unable to satisfy the common law test, leaving a very small group of people with the right to request judicial review – essentially, the right to check that federal ministerial power under the EPBC Act has been exercised properly.
'This is likely to have a devastating impact on fragile ecological systems and biodiversity conservation strategies. This is particularly concerning given the dramatic changes affecting the environment from the expansion of onshore resource development and the acceleration of climate change.'