Legal remedies

Internal review (or review within the agency)

If you are unhappy with a government or agency response or decision, the first step is usually to contact the decision-maker and the relevant department for the agency seeking reconsideration of a decision. Generally a member of staff will be in contact and an interview may be established or discussions may take place through written correspondence. A formal investigation will follow this and the internal review is done by someone other than the original decision-maker in the department.

The relevant legislation will set out which decisions are subject to internal review. For example, under the Tree Protection Act 2005 (ACT) a decision by the Conservator of Flora and Fauna to approve or refuse a tree management plan, or to approve or refuse a tree damaging activity, or to cancel such an approval, may be internally reviewed by the applicant or approval holder. In such a case the internal review must reconsider the conservator’s original decision, having regard to any advice from the advisory panel (Tree Protection Act 2005 (ACT) s 106) (see Chapter 6 in this Handbook for more information on tree protection law). If you are still dissatisfied with the outcome, you can take steps to launch an external review.

Asking for reasons

It is possible to obtain a written statement of reasons for some government decisions. A statement of reasons is important to enable you to make an informed decision as to whether to take the matter further, for example, by making representations to a Member of Parliament, complaining to an ombudsman, seeking internal review or review by a tribunal, or commencing proceedings in a court.

For certain decisions, government agencies are required to provide a person with a statement of reasons for their decision. For example, if ACTPLA approves a development application under sections 162(1)(a) or (b) of the Planning and Development Act 2007 (ACT), then they must provide the applicant and anyone who has put in a submission relating to the development application, a notice setting out the reasons for the approval (s 170(3)(c)). If a statement of reasons for a decision is not required by legislation, then it is at the discretion of the decision-maker to provide the reasons.

Under section 13 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ‘ACT ADJR Act’) an ‘eligible person’ - defined in section 4A (see below) - who is eligible to apply for judicial review - can apply in writing for a written statement of reasons for certain government decisions. For Commonwealth decisions, section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the Commonwealth ADJR Act’) allows an 'aggrieved person' who is eligible for judicial review the same right. According to section 3(4)(a) of the Commonwealth Act, a ‘person aggrieved’ includes a person whose interests are adversely affected by the decision; or whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation.

Finding the right lawyer

When dealing with a legal issue it is important to find a lawyer who specialises in the particular area of law with which you are concerned. If you do not know a specialist lawyer then the ACT Law Society can be a good first port of call. For example, the Environmental Defenders' Office (EDO) specialises in public interest environmental law and is a good starting point for getting assistance in environmental matters. If the EDO cannot assist you, they will refer your matter to an appropriate lawyer.

Legal actions and barriers to pursuing them

…to assume that competitive instincts are aroused only by concern for material wealth would be to ignore history. Much of the progress of mankind has been achieved by people who have sacrificed their own material interests in order to champion ideals against fierce resistance. The recent Australian experience is that, in cases where ideologues have been able to gain access to the court, cases have been hard fought and professionally conducted.

Ogle v Strickland (1987)13FCR36 (Federal Court of Australia)

Legal actions are one strategy for achieving better environmental outcomes, and while they should not be ignored, they should also not be seen as a silver bullet. A decision on the most appropriate judicial venue needs to be made on a case by case basis after considering the nature of the decision, what legislation is involved, the level of potential cost, and the expected outcome and respective jurisdictions of the venues. This chapter covers the different types of legal action available to parties, and the forums where these can be pursued.

Merits review involves reviews of the merits of a decision, rather than its lawfulness. That is, the tribunal ‘stands in the shoes’ of the original decision maker and decides the matter de novo or afresh, according to the facts and circumstances as they exist as at the date of the tribunal’s review, that is, not at the date of the original decision. In the ACT, merits review is available through ACAT.

Judicial review is the process of considering the lawfulness of the decision that has been made, that is, whether the requirements and procedures of the law were followed. This process is undertaken by a court, under the Administrative Decisions (Judicial Review) Act 1989 (ACT) in the ACT and the Administrative Decisions (Judicial Review) Act 1977 (Cth) at the Federal level.

It is important to note that there are a number of ‘procedural barriers’ in pursuing legal redress to achieve an environmental outcome. Procedural barriers are hurdles you must jump before the substance of your legal arguments can be heard. While this chapter outlines some of the procedural barriers below, it is beyond the scope of this Handbook to provide detailed information. Typical procedural barriers include standing and security for costs.

Standing

Standing is the right to have an issue heard before a court or tribunal. Standing is often only available to a ‘person aggrieved’ or an ‘eligible person’ whose interests have been affected. Traditionally this has meant that only persons directly affected by a decision or an action have a right to take legal action. However, the different forums for legal actions all have different tests for standing, which will be discussed below. Standing is often an issue for environmental groups pursuing a legitimate public interest goal, and a long line of cases have involved groups having to justify that they are a ‘person aggrieved’. Whether an individual or an organisation has standing may also be regulated by the legislation under which a particular decision was made (see below).

Security for costs

Even if a group can establish standing to bring an action they may be prevented from doing so if security for costs is required by the court. Security for costs is where a party to the proceeding, when challenged, must provide evidence that it has sufficient funds to cover costs in the event that it loses. It can be argued that the ordering of security for costs should be waived in public interest matters where an order would stop or prohibit the progress of the proceeding, however in many jurisdictions this is a matter for judicial discretion. In Truth Against Motorways v Macquarie Investments 2000 FCA 918, the Federal Court decided that TAM had to provide a security for costs and Justice Hely rejected the argument that the public interest nature of the litigation meant that the Court should not require security.

Merits review in the ACT

The ACT Civil and Administrative Tribunal Act 2008 (ACT) amalgamated the Administrative Appeals Tribunal (AAT) and establishes the ACT Civil and Administrative Tribunal (ACAT).

ACAT provides the means to review the merits of some ACT government decisions, but it is important to be aware that not all decisions of all government agencies or authorities are subject to an ACAT review. The decision must be a ‘reviewable decision’ as stated in the relevant legislation and the applicant must be ‘eligible’ (in other words, have standing) to bring the proceedings which is also defined in the relevant legislation. What constitutes a reviewable decision is commonly listed in a Schedule located towards the end of the legislation that conferred the decisionmaking power in question. For example:

• Environment Protection Act 1997 (ACT) (s 135, Sch 3)—a decision to grant an environmental authorisation
• Water Resources Act 2007 (ACT) (s 94, Sch 1)—a refusal to issue licence to take water
• Planning and Development Act 2007 (ACT) (ss 407- 410, Sch 1)— a decision to approve or refuse a development application
• Tree Protection Act 2005 (ACT) (s 107A, Sch 1)— a decision to refuse or approve the registration of a tree
• Heritage Act 2004 (ACT) (ss 111-114, Sch 1)—a decision to register or not register a place or object.

If the decision is not specified in the relevant Schedule, then it is excluded from a review in ACAT (see Chapter 3 in this Handbook for more information on challenging planning decisions). If you are unsure of your rights then it is important to seek advice from a lawyer, such as the EDO, or from the Registrar’s office at the ACAT as to whether the decision is reviewable by the tribunal.

In order to seek a review of a decision by ACAT, the challenging party must have ‘standing’. Different laws have different standing requirements allowing review at ACAT. ACT environmental laws which confer this right are as follows:

• the Environment Protection Act 1997 (ACT) allows certain entities to seek review of decisions (see Sch 3), while other parties must show that their interests are affected by the decision (s 136D(b))
• the Heritage Act 2004 (ACT) requires parties to be an ‘interested person’ (s 114). The definition in section 13 generally excludes third parties and the only exception to this is if the third party has submitted a comment in public consultation about a decision to register, or not register, a place or object which has been provisionally registered under section 40 by the Council, or to cancel or cancel a registration of place or object under section 47 (s 13(2)(a) and (2)(b))
• the Tree Protection Act 2005 (ACT) provides a list of entities that may seek review of a corresponding ‘reviewable decision’ (Sch 1), but makes no provision for third parties
• the Planning and Development Act 2007 (ACT) allows parties to seek review of a ‘reviewable decision’ if they are an ‘eligible entity’ in relation to that decision (s 408). Schedule 1 of the Act lists the reviewable decisions and the entities eligible to seek review. The Act only grants standing to third parties in limited circumstances, for example, for the approval of development applications in the merit or impact track, or a decision made on reconsideration of a development application. To be entitled to make a challenge, parties must have made a representation under section 156 about the development proposal, or had a reasonable excuse not to, and suffer a ‘material detriment’ from the approval of the development application. In relation to an entity, the decision has to relate to a matter included in the entity’s objects or purposes, while in relation to an individual, the decision must have, or is likely to have, an adverse impact on the third party’s use or enjoyment of the land (s 419)
• the Water Resources Act 2007 (ACT) allows listed entities to seek review of corresponding decisions (s 96(a), Sch 1), while third parties can seek review of a ‘reviewable decision’ if they can show that their interests are affected by the decision (s 96(b))
• the Nature Conservation Act 2014 (ACT) allows listed entities to seek review of corresponding decisions (s 362(a), Sch 1), and third parties can seek review of a ‘reviewable decision’ if they can show that their interests are affected by the decision (s 362(b)).

Many of the above authorising laws refer to ‘people whose interests are affected’ by a decision. This term includes a reference to an unincorporated body or a government body, that is, a body has ‘interests that are affected’ by a decision if the decision relates to a matter included in the objects or purposes of that body. In relation to individuals and organisations, it is the tribunal that decides whether or not a person’s interests are affected by a decision (ACAT Act s 22Q).

An important aspect of ACAT is that it differs from a court as a method for dispute resolution. In contrast, court proceedings can take years before there is a resolution and litigation can be expensive in terms of filing fees and ongoing legal fees. ACAT is characterised by speedy processes, minimal fees, self-representation, reduced formalities, and less reliance on the technical rules of evidence.

The form, ‘Application for Review of Decision’, is available from the tribunal registry and online. At the time of writing, an application for a merits review under any authorising Act costs $313 if applying as a natural person or $626 if applying as a corporation. If considering an application then it is important to check with the tribunal for any changes in the fee structure. Generally an applicant has 28 days from the date of the decision to lodge an appeal ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2) (r 14(1)), however it is also important to verify this with the tribunal (see Contacts list at the back of this book).

Judicial review - Supreme Court of the ACT

The ACT Supreme Court is another forum for seeking review of a decision. The Court can hear appeals on questions of law from ACAT hearings, and review appeals of decisions dismissed by ACAT if the applicant seeks to appeal the original decision (ACAT Act, s 80(3)).

It can also review certain decisions made by government agencies without an initial ACAT hearing. This includes reviewing whether an ACT government decision has been decided in accordance with the law (ACT ADJR Act s 5).

To determine whether a matter can be taken to the Supreme Court, it is necessary to look at the legislation under which the decision was made as well as the ACT ADJR Act. Exceptions to judicial review under the ACT ADJR Act are found in Schedule 1 of that Act. Notable examples from the Planning and Development Act 2007 (ACT) include development proposals in relation to light rail, other than a development proposal involving a protected matter or a decision making, or forming part of the process of making, a special variation to the Territory Plan.

To bring a matter to court, a person has to be able to demonstrate standing to challenge the decision. For most decisions made pursuant to ACT law, the ACT ADJR Act provides in section 4A that an ‘eligible person’ can make an application for judicial review. Under section 4A(3), a person is an ‘eligible person’ and has standing to apply for judicial review if an applicant’s interests are affected or they can raise a significant issue of public importance. However, a narrower test for standing applies for review of decisions made under the Planning and Development Act 2007 (ACT) and the Heritage Act 2004 (ACT), requiring the applicant to show that their interests will be adversely affected (s 4A(2)).

In contrast to ACAT, Supreme Court hearings tend to be more costly and are held in a more formal legal environment. The Supreme Court Registrar can assist with information on filing fees. If you and your group are at the stage of considering a Supreme Court challenge then you should be in regular communication with a solicitor. Going to court means being mentally prepared for the expense and time consuming nature of proceedings.

Judicial review – Federal Court of Australia

Judicial review is also available for Commonwealth government decisions, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Commonwealth ADJR ACT). The most relevant Commonwealth legislation for environmental matters is the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). Litigation commenced under this Commonwealth law is generally brought in the Federal Court of Australia.

EPBC Act – Injunctions

Under section 475(1) of the EPBC Act, any ‘interested person’ (individual or organisation) can apply for an injunction to remedy or restrain a breach of the Act. An interested person is defined as a person whose interests have been, or would have been affected by the conduct, or has engaged in a series of activities for protection or conservation of, or research into, the environment in the previous two years (s 475(6)). Section 475(7) similarly defines an interested person as an organisation if the organisation’s interests have been, are or would be affected by the conduct by the conduct or the organisations objects and purposes at any time during the 2 years preceding the conduct have related to the protection, conservation or research into the environment.

EPBC Act – Judicial review

Under section 487 of the EPBC Act, the term ‘person aggrieved’ for the purposes of the application of the Commonwealth ADJR Act (that is, to seek judicial review) is similarly extended to include persons or organisations who, in the preceding 2 years have engaged in activities for the protection or conservation of, or research into, the environment. This extended definition reduces the burden on environmental groups who wish to access judicial review of decisions made pursuant to the EPBC Act, and recognises that landholders should not bear the entire burden of protecting national icons; that there is a the broad public interest in conserving Australia’s environment, and more generally, the rule of law. It also recognises that all Australians have an interest in seeing that our unique natural heritage is protected as well as the importance of conservation groups, researchers and educators in safeguarding these interests.

Administrative review of decisions under other Commonwealth Acts

The Commonwealth ADJR Act also applies to judicial review of decisions made under other Commonwealth Acts. In order to use this Act, an applicant must be a ‘person aggrieved’ before they can seek a review of a decision on one of the grounds listed in section 5. A ‘person aggrieved’ is defined as including a person whose interests are adversely affected by the decision (s 3(4)).

Before the introduction of the extended standing definition in section 487 of the EPBC Act, the common law was applied. Those wishing to challenge Federal Government decisions made under the EPBC Act faced the hurdle of having to demonstrate that they were ‘a person aggrieved’. For example, they had to show they had something more than ‘a mere intellectual or emotional concern’ (Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552) and that they would be ‘likely to gain some advantage, other than the satisfaction of righting a wrong’ in order to commence proceedings (Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530). Interpretations of the ‘special interest’ rule were not always consistent, and ambiguous boundaries to the definition sometimes led to conflicting judgments.

If environmental groups want to challenge a decision made under a Commonwealth Act other than the EPBC Act, this more strenuous test of 'special interest' would still apply.