The Commonwealth government can be congratulated for introducing new legislation to create an Administrative Review Tribunal to replace the Administrative Appeals Tribunal. In doing so, it has affirmed the importance of providing a practical, accessible means of reviewing government decisions. Yet some of the most consequential government decisions - approving actions with potentially significant environmental impact - are currently excluded from this straightforward means of review.
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The decision to repeal the AAT rather than amend the existing Act governing the Tribunal is a clear indication of starting afresh. Establishing a new tribunal is a trust-restoring initiative following years of governments stacking the AAT with politically appointed members, undermining the impartiality of its decision-making. Former High Court Justice Ian Callinan had directly censured the extent to which former politicians and staffers qualified largely by their Liberal Party connections were chosen as AAT members in his 2018 review of the Tribunal. With that in mind, the current government committed itself to an appointment process which is merit-based and transparent. Indeed, much attention since the Bill's introduction has been placed on the appointment process for members of the Tribunal. Due to concerns from key members of the Senate, affirming fears of the cross bench in the House of Representatives about whether the merit-based process in the new legislation was strong enough, the Bill was sent to the Senate Legal and Constitutional Affairs Committee for review, with its report due on July 24.
What is not being changed in the new legislation is the basis upon which a person can apply to the Tribunal to review a government decision. That is determined by the Act under which a decision is made, rather than through the Act which creates the tribunal. The primary Commonwealth environmental approvals legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth), does not currently provide for merits review of approvals (save for a very limited few categories).
Review of administrative decisions by an independent tribunal has become a common feature of the public law landscape in Australia since the 1970s. This review process has several benefits: it gives access to administrative justice to those affected by government decisions, it improves government decision making and it builds and maintains confidence in government decision making.
The absence of merits review for approval decisions under the Environment Protection and Biodiversity Conservation Act has been considered by two statutory review processes. The Hawke Review in 2009 recommended merits review for some decisions leading up to approvals. The 2020 Samuel Review recommended 'limited' merits review of approval decisions. In each case, they recommended that third parties, with standing to object to decisions, should be able to apply for merits review. The Commonwealth Government has, notwithstanding these recommendations, indicated that it will not be legislating for broader merits review rights.
In our report released today, we set out the benefits of merits review for environmental decision making and address concerns that merits review might be misused, and might lead to long delays in projects commencing. We explain the number of matters liable to be the subject of application for merits review is likely to be relatively low, and that many will not involve substantial public controversy.
We demonstrate that the Administrative Appeals Tribunal framework has a strong track record of dealing with complex matters, including complex environmental matters. It has ample powers to ensure that merits review cases proceed without delay, and that vexatious matters are quickly disposed of. There is every reason to think that its successor body, the Administrative Review Tribunal, will also have that capacity.
We recommend the extension of merits review rights to include approval decisions under the Environment Protection and Biodiversity Conservation Act. We consider that the 'limited' merits review proposed by the Samuel Review, if implemented, risks jeopardising the advantages provided by merits review. If there are to be limitations on merits review, we set out a number which would, in our view, be more appropriate than the 'limited merits review' proposed by the Samuel Review.
In our view, however, no such limitation is necessary. Merits review has stood the test of time as an important and efficient means of scrutinising government decisions. The government has recognised this, in strengthening merits review in creating the Administrative Review Tribunal. That same recognition should spur the government to amend the Environment Protection and Biodiversity Conservation Act to extend merits review of environmental approval decisions.
- Joel Townsend is an associate professor at Monash University and director of Monash Law Clinics.
- Kim Rubenstein is a professor in the faculty of business government and law at the University of Canberra.
- The authors were commissioned by Lock The Gate to write an independent report on merits review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
