Extended Standing — Enhanced Accountability? Judicial Review of Commonwealth Environmental Decisions
| Published date | 01 September 2011 |
| Date | 01 September 2011 |
| DOI | 10.22145/flr.39.3.4 |
| Subject Matter | Article |
JUDICIAL REVIEW OF COMMONWEALTH
ENVIRONMENTAL DECISIONS
Andrew Edgar*
1
INTRODUCTION
The general test for standing in Australia requires an applicant to have a 'special
interest' in the subject matter of the action.1 It is well known that under this test
environmental groups face challenges in being granted standing. So what happens
when legislation extends standing to allow these groups to bring judicial review
proceedings? The cases and academic literature suggest that there may be a number of
consequences. It may be that other aspects of the litigation process such as costs, non-
justiciability, or powers to stay proceedings for being an abuse of process operate to
curb inappropriate proceedings.2 It is also possible that standing-related issues are
handled by the grounds of judicial review, such as procedural fairness or failure to
consider a relevant matter. This could occur in two different ways. Judges may be
wary of being drawn into what they regard as political disputes3 and take a restrained
approach to the grounds of review that emphasises orthodox limitations. Or, they may
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*
Lecturer, Sydney Law School. Thanks to Peter Cane, Helen Irving and Leighton McDonald
for their comments on drafts of this article and to the anonymous referees for their
comments. Thanks also to Jessica Radburn for research assistance. Of course, I am solely
responsible for any errors and omissions. The research was funded by the University of
Sydney, Legal Scholarship Support Fund.
1
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, 527 (Gibbs J).
Technically there are separate tests for standing in Australian law for different remedies.
However, it is also recognised that there is 'broad agreement' or, at least, a tendency
towards 'convergence' between the different tests: Australian Institute of Marine and Power
Engineers v Secretary, Department of Transport (1986) 13 FCR 124, 132 (Gummow J);
Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action
(Lawbook Co, 4th ed, 2009) 745.
2
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247, 263 [39] (Gaudron, Gummow and Kirby JJ).
3
Henry Burmester, 'Limitations on Federal Adjudication' in Brian Opeskin and Fiona
Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, 2000) 227,
228–9, 252; Peter Cane, 'Open Standing and the Role of Courts in a Democratic Society'
(1999) 20 Singapore Law Review 23, 29; Richard B Stewart, 'The Reformation of American
Administrative Law' (1975) 88 Harvard Law Review 1667, 1670.
436
Federal Law Review
Volume 39
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see extended standing as a sign that legal accountability is to be enhanced and that a
progressive approach to the grounds of review is warranted.4
This article examines the consequences of extended standing with reference to cases
determined under the primary Commonwealth environmental legislation, the
Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the 'EPBC Act').
Section 487 of this Act extends standing under the Administrative Decisions (Judicial
Review) Act 1977 (Cth) (the 'ADJR Act') to environmental groups. The EPBC Act judicial
review cases are suited to a study of standing for two reasons.
The first is that Commonwealth environmental litigation has been the site of many
of the major battles in the development of Australian standing rules and a study of
cases that would not have been permitted under the general rules, or would at least
have been uncertain, can inform administrative lawyers about the consequences of
extended standing. Modern Australian standing law starts with the case that
established the special interest test, Australian Conservation Foundation v
Commonwealth.5 The environmental group in that case failed to gain standing to
challenge actions taken under the prior Commonwealth environmental legislation, the
Environment Protection (Impact of Proposals) Act 1974 (Cth). Some of the later cases that
liberalised the special interest test also involved challenges by environmental groups to
actions under the 1974 Act.6 While the standing of environmental groups is still tested
in contexts in which standing has not been extended,7 s 487 has largely stopped
standing being disputed in judicial review proceedings under the EPBC Act. This raises
a question about the consequences of this change — that is, whether the substance of
standing tests, namely that the applicant's rights or interests are directly affected by the
decision, has merely moved to other elements of judicial review.
The second reason that the EPBC Act cases are relevant to a study of standing is that
they highlight the significance of standing to the limits of judicial review.
Environmental groups criticised judicial review in submissions to the recent 10 year
review of the EPBC Act (the 'Hawke Review').8 They submitted that judicial review is
an inadequate accountability mechanism for decisions made under the Act primarily
due to the 'tick-a-box' approach to whether relevant matters are considered by the
decision-maker and the limited nature of procedural fairness in environmental
decision-making processes.9 If the cases support these criticisms, which is examined in
Part IV below, they raise an interesting question — why extend access to an
accountability institution that cannot adequately review the decision?
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4
See Oshlack v Richmond River Council (1998) 193 CLR 72, 90–1 [47]–[49] (Gaudron and
Gummow JJ), 114–5 [116]–[119] (Kirby J); Humane Society International Inc v Kyodo Senpaku
Kaisha Ltd (2006) 154 FCR 425, 431–2 [18]–[22] (Black CJ and Finkelstein J).
5
(1980) 146 CLR 493.
6
Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200; North Coast
Environment Council Inc v Minister for Resources (1994) 55 FCR 492; Tasmanian Conservation
Trust Inc v Minister for Resources (1995) 55 FCR 516.
7
Empirical research into Australian standing cases has found that environmental groups are
the type of public interest organisation whose standing is most often challenged in the
cases: Roger Douglas, 'Uses of Standing Rules 1980–2006' (2006) 14 Australian Journal of
Administrative Law 22, 28.
8
Allan Hawke, Independent Review of the Environment Protection and Biodiversity Conservation
Act 1999: Interim Report (June 2009).
9
Ibid 314 [20.34]–[20.37].
2011
Judicial Review of Commonwealth Environmental Decisions
437
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This article examines these questions in the following manner. Part II sets out the
extended standing provision in the EPBC Act and discusses its historical context. Part
III examines whether alternative filtering mechanisms, such as non-justiciability, have
been employed to deal with issues that would otherwise have been dealt with under
standing. Part IV analyses Federal Court cases involving review of decisions made
under the EPBC Act in order to gauge how the grounds of judicial review have been
applied and to see whether environmental groups' criticisms of the Federal Court's
application of the grounds of review are valid.
My conclusion is that extended standing has not resulted in other mechanisms
being used to filter out inappropriate proceedings. The burden has instead fallen onto
the grounds of review. The grounds have been applied in an orthodox, restrained
manner that substantially limits the effectiveness of judicial review proceedings
brought by environmental groups for decisions made under the Act. In the
terminology commonly used for the elements of accountability,10 extended access to
the courts may have expanded the range of persons and groups 'to whom' the Minister
and delegates are accountable11 but the standards by which their decisions are tested,
the 'for what' dimension, lack purchase in review of EPBC Act decisions.
II
HISTORY AND CONTEXT OF THE EPBC ACT STANDING
PROVISION
The extended standing provision in the EPBC Act should be contrasted with the
general standing test that was established in Australian Conservation Foundation v
Commonwealth.12 Although the High Court in that case expanded the test, by changing
the terminology from 'special damage' to 'special interest',13 the environmental group's
interest in enforcing environmental impact assessment provisions was insufficient.
Gibbs J referred to its interest as 'a mere intellectual or emotional concern'.14 The
group's environment protection objects and the fact that it had made submissions in
the decision-making process were thought to be irrelevant to whether it had a special
interest sufficient to be granted standing.15 This approach to the special interest test
seems necessarily to exclude environmental groups from bringing public interest-
based proceedings.16
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10 Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies (Palgrave
McMillan, 2003) 22–3. See also Jerry L...
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