In the media

Media release, 16 April 2024

Enshrining communities’ right to challenge the merits of large, environmentally destructive projects in law would drastically improve integrity in decision making, restore the public’s faith in a broken system, and lead to better outcomes for nature, according to a groundbreaking new expert report.

The independent report (available here), commissioned by Lock the Gate Alliance, includes a supporting foreword from renowned former Chief Justice of the High Court of Australia Robert French.

Its release today comes as the Federal Government prepares to make changes to the Environment Protection and Biodiversity Conservation Act (EPBC Act), Australia's main national environmental legislation.

The new report builds on Samuel Review recommendations that communities should have the legal right to challenge the merits of a wider range of environmental decisions. While commonplace in most other areas of law, these “merits review rights” currently only apply to an extremely limited number of situations in federal environmental law, leaving the Australian public with few avenues to challenge decisions that impact the plants, animals, and natural areas that belong to us all.

The Albanese Government currently has no plans to expand merits review rights. However, report authors, community and environmental advocates argue that the EPBC law reforms now underway present a once-in-a-generation opportunity to address this gap and repair the declining levels of trust in government decision making.

The report finds that should merits review rights be expanded to include large projects, like coal mines for example, it would not only improve the public’s trust in decision making, but improve the integrity and quality of the decisions themselves.

The report references a previous review by the NSW Independent Commission Against Corruption which found that community merits review on major environmental decisions provided a “a safeguard against biassed decision-making’ and a ‘disincentive for corrupt decision-making.”

The report’s authors, Professor Kim Rubenstein (University of Canberra) and Associate Professor Joel Townsend (Monash University) explain how the introduction of merits review rights is likely to lead to a more efficient assessment process. This is because both project proponents and decision makers would be held to a higher standard in order to avoid triggering community challenges in the first place.

Independent Federal Member for North Sydney Kylea Tink MP said: “In almost every other aspect of our day to day lives, Australians have the right to appeal the decisions that affect us: both on the basis of whether the decision was 'technically' or 'legally' correct and also whether it was morally sound.

“To exempt environmental laws from an equivalent process is to miss this once-in-a-generation opportunity to fundamentally increase people’s confidence in the decision-making processes in this area.

“Importantly, this report moves beyond supposition and provides the evidence that shows how the public’s confidence in environmental decision making would vastly improve, should merits appeal rights be expanded.

“With so much talk about a commitment to doing politics differently, this is an opportunity for the Federal Government to strengthen integrity protections by providing these rights in national environment laws.

“Australians have already waited too long for the government to act on the recommendations of the Samuel Review, with aspects of the reform held back by years of politicking and delay. The Albanese Government will need to have the courage to deliver the full package of reforms in order to live up to its election promises and show us what it means to be working both for and with the community to create the country we all wish to live in."

Report author Professor Kim Rubenstein said: “With the new Administrative Review Tribunal soon to begin reviewing Commonwealth government decisions, now is the moment for the Commonwealth to reassess the right of the community to seek merits review of environmental decisions.

“Merits review improves the quality and integrity of decision making and gives the public access to justice.

“The mere presence of review rights is likely to lead to better, more informed decisions made not just by the government, but by companies when proposing new, potentially environmentally damaging projects.”

Lock the Gate Alliance spokesperson Han Aulby said: “Minister Plibersek has said that restoring integrity to environmental decision making is one of the Albanese Government’s priorities under these reforms. But draft reforms fail to do this.

“Giving the public the right to appeal the merits of decisions would restore trust in environmental decision making because it would improve the quality of decision-making, and lift the integrity of the whole system.

“Two separate reviews of the EPBC have recommended merits appeal rights in some form. It is widely available at a state level. But the Albanese Government continues to deny Australians this basic access to justice. “

ENDS

Background:

The new report by Professor Kim Rubenstein (University of Canberra) and Associate Professor Joel Townsend (Monash University) shows that the full application of community merits appeal rights to environmental decisions would benefit the Australian public.

Key points from the report:

• Merits review of law making is commonplace. The public can already appeal many federal decisions that affect them through the former Administrative Appeals Tribunal (now Administrative Review Tribunal).
• Merits review rights currently apply to most state-level environmental decisions, but only an extremely limited number of situations in federal environmental law. For example, under the current federal law, members of the public may appeal decisions that lead to the direct killing of endangered species, but not the removal of habitat — say, for a coal mine — that leads to the deaths of endangered species.
• The Samuel Review, and the Hawke Review before it, both recommended an expansion of merits appeal rights to include environmental decisions in some form. But at the moment, the Albanese Government has no plans to expand merits review rights.
• Merits review improves the quality and integrity of decision making and gives the public access to justice. The mere existence of review rights is likely to lead to better, more informed decisions made not just by the government, but by companies when proposing new, potentially environmentally damaging projects.
• The new Administrative Review Tribunal is well equipped to deal with merits appeals. It would ensure that only legitimate community challenges against projects with serious environmental impacts were heard.