Water Journal : Water Journal November 2015
6My Point of View WATER NOVEMBER 2015 IMPLICATIONS OF ABOLISHING THE REPRESENTATIVE STANDING PROVISION UNDER THE EPBC ACT Professor Samantha Hepburn -- Director of Research, Deakin Law School Samantha Hepburn is a Professor in the Law School at Deakin University and Director of EMI Partners. Samantha is one of Australia's pre- eminent legal scholars whose research involves the examination of a range of different energy, natural resource, property and land law issues. Her career highlights for 2015 include the publication of her book with Cambridge University Press, Mining and Energy Law, working with the Victorian Auditor General to prepare the terms of reference paper for the Victorian Parliamentary Commission into Unconventional Gas, and being a keynote presenter at the 2015 Sydney ATSE Unconventional Gas Conference and the 2015 Sydney Carbon Abatement Conference. The Federal Government wants to repeal Section 487(2) of the Environmental Protection Biodiversity Conservation Act 1999 (Cth)(EPBC) and rely on the common law provisions that govern standing to seek judicial review of a decision under the Act. Section 487(2) is the representative standing provision in our national environmental legislation. It provides environmental and conservation groups with the ability to seek review of decisions made under the EPBC Act without having to establish that their private interests have been directly affected. In this respect, the provision is known as the 'representative standing' provision. The direct effect of the amendment will be, henceforth, to prevent environmental and conservation groups from having any capacity to seek judicial review because they will not have standing. This, in turn, will reduce the incidence of judicial oversight of decisions made under the EPBC Act. BACKGROUND The common law test for standing in Australia requires an applicant to establish a 'special interest' in the subject matter of the action. This is particularly dif cult for environmental groups. This was clearly apparent from the decision of the High Court in Australian Conservation Foundation v. Commonwealth, where the ACF failed on the facts to gain standing to challenge actions taken under the national legislation preceding the EPBC Act, namely, the Environment Protection (Impact of Proposals) Act 1974 (Cth). In that case, Gibbs J held that the interests of the ACF, as re ected in its objects, were primarily intellectual or emotional and such interests were insuf cient to satisfy the 'special interest' for standing as it existed under common law. This precluded the ACF from seeking judicial review of any decisions made under the legislation. Subsequent courts have con rmed that environmental groups are unlikely to satisfy the special interest test for standing as it exists under common law.1 Following this decision and the recommendations of two Australian Law Reform Commission Reports, when the EPBC Act was eventually introduced, Section 487 was added with the explicit aim of ensuring that environmental and conservation groups were able to satisfy standing requirements. 1 See: Onesteel Manufacturing Pty Ltd v. Whyalla Red Dust Action Group Inc (2006) 94 SASR 357; Animal Liberation Ltd v. Department of Environment and Conservation  NSWSC 221. 2 Government Report to the Senate Environment, Communications, Information Technology and the Arts on Commonwealth Environment Powers, Response to Recommendations (1999).
Water Journal September 2015
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