Senator Linda Reynolds

Coalition senators on a committee investigating the government’s planned repeal of laws allowing environmental groups to mount legal challenges against ministerial approval of development projects has backed the views of the minority of submissions endorsing the repeal.

As Crikey reported earlier this month, Prime Minister Malcolm Turnbull is still planning to forge ahead with changes to the Environment Protection and Biodiversity Conservation Act. The amendment currently sitting in the Senate is designed to prevent anyone not directly affected by a major project from having legal standing to challenge the ministerial approval of the project. It is specifically targeted at “green lawfare” – to use the words of Attorney-General George Brandis – by groups like the Australian Conservation Foundation, which this week brought another challenge to the approval of the Carmichael coal mine to the Federal Court. But in the 15 years since the provision was put in to allow environmental groups to have standing in such cases, only two such challenges under the EPBC Act have been successful.

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The Environment and Communications Committee in the Senate, which recently replaced all of its Coalition members because the old ones were all moved into the Turnbull cabinet, reported back on the legislation yesterday, and lo and behold, the three Coalition senators backed the government’s legislation in the face of significant opposition in submissions to the inquiry.

The three senators — Linda Reynolds and Chris Back both from the mining state of Western Australia, and Victorian Michael Ronaldson — quoted from just four submissions in support of repealing the legislation: the Business Council of Australia, the Minerals Council of Australia, South Australian Chamber of Mines and Energy, and Ports Australia.

The Business Council of Australia claimed that while, to date, cases that had been brought against project were not necessarily “vexatious”, the current definition could allow vexatious claims in the future. Minerals Council of Australia claimed, in spite of evidence to the contrary, that environment groups challenging projects in court were a “campaign of economic sabotage”, stating that delays brought about by legal action could add costs of $46 million per month to major mining projects.

The three senators noted that there were “many” submissions against changing the legislation, citing limited evidence that there had been vexatious or frivolous litigation — 0.4% of the 5500 projects referred to the Department of Environment had ever been subject to a legal challenge.

The report admitted there had only been three court cases, out of 37 challenges, where a decision had been overturned.

Nevertheless, the three Coalition senators stated they backed the repeal of the legislation because reviews of the decision were still be possible through the Administrative Decisions (Judicial Review) Act and the Judiciary Act.

This view was not supported by the Labor or Greens senators on the committee, who stated that the entire basis of the repeal was in response to an “administrative error” made by the government in the process of the first — now overturned — approval of the Adani Carmichael coal mine in Queensland. Labor senators stated that using the ADJR Act and the Judiciary Act to review decisions would lead to lengthier delays, and more costs.

Labor senators also criticised how the committee was run, noting there were four hearings scheduled, given there were 291 submissions, but after postponing the first hearing and agreeing to report back in February 2016, the government used its numbers to bring forward the reporting date to yesterday, before any hearings could take place.

The Greens said the legislation was a test for Turnbull:

“The decision for the Prime Minister is: will he continue the ideological attacks of the Abbott government, or will he listen to the voices of ordinary Australians defending their precious environment?”

Now that the committee has reported back, the debate on the legislation in the Senate could commence as soon as next week.

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Peter Fray
Peter Fray
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