Banning environmental appeals will protect illegal government moves, rights group warns

Liberty Victoria today warned against moves to wind back access to the courts for environmental groups.

The attack on access  follows  a successful challenge by a Queensland conservation group in the Federal Court that stopped Adani's Carmichael coal mine in central Queensland.

Liberty believes that removing the right of judicial review undermines government accountability and threatens the rule of law.

“The process of judicial review involves asking a court to determine whether a government decision-maker has followed the law,” said George Georgiou SC, President of Liberty Victoria. 

“Far from being ‘activists exploiting loopholes’ or ‘vigilante litigants’, applicants in judicial review cases are merely raising questions of whether the government has acted according to its laws. If the government has acted lawfully, the case will be dismissed and the government has nothing to worry about,” Mr Georgiou said.

In most areas of government decision-making, the right to seek judicial review of a decision, known as “standing”, is granted to a person who is aggrieved by the decision. Just who qualifies as a person aggrieved depends on the decision being challenged.

The Environment Protection and Biodiversity Protection Act says that for decisions made under that Act, a person aggrieved will include a person or organisation engaged in protecting the environment – the very thing that the legislation is supposed to protect. It is this subsection that the government is proposing to repeal.

The Federal Court found that the Environment Minister had not followed the Environment and Biodiversity Protection Act. This came after a judicial review initiated by environment groups, and so the decision has been set aside to be remade, this time following the law.

“Liberty Victoria believes that governments must be transparent and accountable in their decision-making. Courts need to be allowed to check whether government decisions have been legally made, and that is best done by making access to the courts for judicial review as broad as possible ,” said Mr Georgiou. 

“Closing the door to applicants for judicial review simply makes it easier for the government to make illegal decisions without fear of intervention by the courts.”