No leg to stand on: legal changes test true conservatives Opinion Article

Oct 31, 2016 - 5:28pm

This article was originally published in Crikey on Monday 31 October 2016.

John Connor   
CEO, The Climate Institute

The Attorney General George Brandis, is the father of the law and should determine who gets access to stand before the courts to enforce public laws to protect the environment and consumer protection.

At least that was the approach up until the latter part of last century. The broadening of persons with “standing” to challenge government decisions to include environmental organisations has been as much a victory for conservatives supporting the rule of law and seeking a check and balance on executive power as it has been for consumer or environmental campaigners. It has broken, albeit partially, a monopoly over access to the law.

But such gains have caused discomfort and unwanted scrutiny for government approval authorities, government forest, water and similar agencies and for project developers. The revitalised frothing in relation to the scrutiny on the approval process for the proposed Queensland Adani coalmine is just the latest exhibit of some seeking to limit scrutiny and wind back recent gains. Now Prime Minister Malcolm Turnbull and Attorney General George Brandis are considering winding back Section 487 of the Environment Protection and Biodiversity Conservation Act, which allows environmental groups to challenge decisions made in relation to the Act.

So much dross from left and extreme right has been written on the subject of the broadening of standing to enforce public laws that the real story about standing has been obscured.

This should not be a question on whether trees or ecosystems have standing to bring a court action — as some have argued. It is also should not be about whether anyone deserves such a right, are sufficiently aggrieved by a decision, or have a sufficient “special interest” in the case.

It should be about why there are any restrictions on an Australian citizen’s ability to see governments properly enforce public duties.

Before you, rightly, express concerns about “vexatious” or “frivolous” litigation, you should know that all courts from the High Court to local courts have powers to dismiss such actions. In reality, the expense and hassle of such litigation also acts as a significant brake.

This is about a monopoly over access to the courts to review government decisions that draws from deep historic traditions within our Westminster system of government which is, of course, still a constitutional monarchy. These traditions view individuals more as subjects, or mere recently consumers, rather than citizens. In a convenient protection from external scrutiny, elected executive governments closely guarded this monopoly through the best part of the twentieth century.

As first law officer of The Crown and parens patriae (father of the law) Attorneys General were given the job to sue wherever the criminal law or the civil law, which is designed to protect the public, was breached. They could grant access to others, as was begrudgingly the case for an appeal regarding Canberra’s Black Mountain Tower. Or they could refuse it, as in a case regarding the flooding of Tasmania’s Lake Pedder.

This was based on a notion that the position of Attorney General was especially independent and above day to day party politics. This evaporated long before George Brandis. And through the latter part of the twentieth century there was recognition of the civic and other benefits of greater participation of citizens and communities in planning, consumer and environmental protection.

Standing was broadened to enable more citizens access to enforce review of administrative decision, trade practices, environmental and planning decisions. In many instances, some restrictions continued to apply but the trend was clear.

The current dispute focuses on the use of section 487 of the Howard Government’s Environment Protection and Biodiversity Conservation Act 1999, particularly in relation to legal challenges to approvals for the proposed Adani Coal Mine. As much focus has been on those with the temerity to challenge the government as on the section itself. Yet in that case such action has forced the government to concede an error of law had been made and to restart parts of the approval process. At no time have available provisions against frivolous litigation been used.

The hassle, expense and rules available to courts are a sufficient barrier to frivolous litigation. Indeed, the recent Senate Inquiry into a recent attempt to repeal s.487 noted that just 0.4% of the decisions made under the EPBC Act had been challenged using that provision.

The Law Council of Australia’s submission to that inquiry joined others in noting the broadening of standing is a bulwark for the rule of law, ensuring that lawful government decisions are made. The NSW Independent Commission against Corruption also noted the absence of such rights “creates an opportunity for corrupt conduct to occur”.

Others have written on the gross hypocrisy of those attacking s.487 and the citizens who have used it. Others have noted that all Australians should have a right to see laws enforced that are designed to protect environmental places and species of nationally significance.

But standing is an issue of deeper importance. It is an issue of meaningful checks and balances, of the rule of law, of busting a monopoly on access to justice and of enabling individuals to act as citizens exercising civic responsibility.

True conservatives would support broadening standing. Some who probably describe themselves as such are piling in, but in truth their interests are more opportunistic, short term or reactionary.

John Connor

John Connor was CEO of The Climate Institute from 2007 to March 2017. Whilst qualified as a lawyer, John has spent over twenty years working in a variety of policy and advocacy roles with organisations including World Vision, Make Poverty History, the Australian Conservation Foundation and the NSW Nature Conservation Council. Since joining The Climate Institute in 2007 John has been a leading analyst and commentator on the rollercoaster that has been Australia’s domestic and international carbon policy and overseen the Institute’s additional focus on institutional investors and climate risk. John has also worked on numerous government and business advisory panels.

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