Tink insists environmental merits reviews would not mean 'green lawfare'

A new report, commissioned by Lock the Gate Alliance and written by Professor Kim Rubenstein and Associate Professor Joel Townsend, recommends giving groups and communities the right to challenge, on their merits, large projects approved under the Environment Protection and Biodiversity Conservation Act (EPBC) Act.

It is an intervention in wide and lengthy consultations over Environment Minister Tanya Plibersek's yet-to-be-introduced "Nature Positive Plan" legislation, a long-awaited response to the Samuel Review into the EPBC Act. The landmark environmental reforms were originally expected to be introduced into the Parliament before the end of 2023.

Ms Tink, the member for North Sydney, has told The Canberra Times that the current system lacks integrity and she believes the public wants it to change.

"They feel that they can't trust it and they feel like they're not engaged deeply enough," she said. "All the science tells us, all the data tells us the more engaged people are upfront in decision-making processes, the smoother the decision execution will become."

"There is absolutely room for merits review in our national environmental laws and that's what the government should be prioritising, is actually building environment merits review into our systems to ensure that we get better quality decisions."

Under the EPBC Act, projects or developments such as mines, land clearing and forestry that might impact "animals, plants, habitats and places" of national significance require federal assessment and approval.

The label "lawfare" has been used to describe environmental court action over major developments, but ANU research in 2020 found that environmental cases made up a "negligible portion" of the federal court's workload.

"The argument that lawfare is the thing we need to be concerned about is a red herring. It's being used as a way to try and discourage this course of action," Ms Tink said.

"Better quality decisions are made because those making the decisions are forced to consider them on a broader scale far earlier in the decision making process."

Professor Graeme Samuel's independent review of the EPBC Act, released in October 2020, made 38 recommendations to fix and strengthen the laws he blasted as "ineffective", "outdated" and not fit for purpose.

But a legal fix by the Albanese government, a mission Ms Plibersek describes as "sensible updates to national environment law so the system works better for both business and nature" is taking longer than expected.

"To date, there have been hundreds of hours of consultations with over 100 groups and over 2,000 individuals on environmental law reform," the minster said in a statement.

"We've said from the beginning consultation will occur on a rolling basis so we can get the detail right, and that will continue."

With consultation still underway, report author and constitutional expert Professor Rubenstein argues the time is right to add merits review rights and give the public "access to justice" which is commonplace in most other areas of law.

"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," she said.

The Samuel Review, itself, recommended a "refined, limited merits review mechanism" so stakeholders will be "less likely, and have less justification, to resort to legal challenge."

It also dismissed the use of the phrase "lawfare."

"The ability of the public to hold decision-makers to account is a fundamental foundation of Australia's democracy and improves the performance of law over time," the Samuel Review stated.

"To characterise legal review as 'lawfare' is artificial and misrepresents the importance of legal review in Australian society".

The Lock the Gate Alliance is urging action.

"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," spokesperson Han Aulby said.

"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. "