Restricting environmental lawfare is a good and necessary first step to achieving prosperity
The purpose of this letter is to share research and analysis conducted by the Institute of Public Affairs (the IPA) with the Environment and Communications Legislation Committee (the committee) as it conducts its inquiry into the Environment Protection and Biodiversity Conservation Amendment (Reconsideration of Decisions) Bill 2024 (the bill).
The bill aims to amend section 78 of the Environmental Protection and Biodiversity Conservation Act 1999 (“the EPBC Act”) to:
- limit the time frame in which a person other than a minister can request a reconsideration of a decision taken under the EPBC Act; and
- restrict ministerial requests for reconsideration to a minister of a state directly affected by the previous approval decision.
This bill has been introduced against the backdrop of a section 78 reconsideration of a decision in November 2023 by the current federal environment minister in relation to a salmon farming proposal that was originally approved eleven years earlier. The request was made by activist green groups, specifically the Bob Brown Foundation, the government-funded Environmental Defenders Office (“the EDO”), and the Australia Institute.
The IPA supports the bill in principle. Timeline rights to challenge an approval by uninvolved third parties exposes all projects to costly green lawfare. However, the IPA is concerned that the bill would unintentionally have the effect of closing off legal rights for landowners who are directly impacted by an approval decision. For this reason, the IPA recommends that the bill be clarified so that ‘a person other than a minister’ who can make a section 78 reconsideration request is a person directly affected by an approval decision and does not include a person whose interest in a matter is merely ideological (such as environmental organisations). In other words, the scope of who has standing under section 78 should be limited to only those who are directly affected by a project approval.
Additionally, the IPA endorses the bill as an important step to curtail activist lawfare. The most effective reform available to the parliament would be to repeal section 487 of the EPBC Act, which would have the effect of limiting the ability of actors to challenge projects, without limiting the standing of actors with legitimate grounds to challenge projects.
