- The Government has decided to protect Australian jobs by removing from the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) the provision that allows radical green activists to engage in vigilante litigation to stop important economic projects.
Section 487 of the EPBC Act provides a red carpet for radical activists who have a political, but not a legal interest, in a development to use aggressive litigation tactics to disrupt and sabotage important projects.
That strong language comes from a Government media release.
What is at issue is the question of “standing”. Samantha Hepburn at The Conversation explains that section 487 of the EPBC Act virtually guarantees the standing of environmental groups. It:
- 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.
Under the changes proposed anyone contemplating legal action will have to show that they are a “person aggrieved by the decision”.
Hepburn thinks we need more scrutiny rather than less and cites two former Australian Law Reform Commission proposals in support.
Andrew Robb says the current situation adversely affects our trade relations and has been muttering about “sovereign risk”. Ministers generally are not impressed that something as trivial as a couple of vulnerable reptiles, the yakka skink and the ornamental snake, should affect the development of a coal mine.
Apart from making the Government obey its own laws (Greg Hunt failed to consider the reptiles) Christy Clark says that the public interest in preserving the environment is at stake.
I seem to remember farmers being upset about moves by the Queensland Newman Government to restrict their rights to have an interest in mining developments. Nevertheless I’m sure Nationals will behave. So it’s up to Labor and the Senate cross bench. I think the Government may struggle to get the numbers.
I believe the current section 487 was introduced during the time of that raving greenie, John Howard!
Michael Bradley at The Drum says ‘Vigilante litigants’ didn’t stop the Carmichael mine, the law did.
He also worries about the ranting George Brandis:
Bear in mind, this guy is our chief law officer, protector of the rule of law and the integrity of our courts.
- If you want to find the real vigilantes, look no further than the federal government.
He worries that there is a clear pattern of the Government undermining the rule of law. He looks at several cases and:
- in each case, the government has aggressively attempted to disparage or silence its critics. These are all examples of a government which believes that it inhabits a national emergency, a “state of exception”, in which the normal rules of legal conduct and rational debate do not apply.