Teaching Law

Wednesday, 19 August 2015

Government v citizen: who is the vigilante?

In an action brought by Mackay Conservation Group, the Federal Court of Australia recently ruled that the Australian Government had failed to follow the law in granting approval to the Carmichael Mine. The Australian Government conceded this. The application will now need to be reconsidered by the relevant Minister in accordance with the relevant legislation.

Following this decision, the mining industry called on the Government to 'close the loophole'. The Prime Minister, Tony Abbott, criticised the Court for standing in the way of development and economic growth. The Attorney-General, George Brandis, called the action 'vigilante law'. Supported by the Industry Minister, Ian MacFarlane, the Attorney-General is planning to bring forward amendments to the law that prohibit environmental groups from appealing environmental decisions. The Industry Minister has said 'We're just saying if people live 600 kilometres away from a coalmine or from a development proposal, what right do they have to prevent that proposal providing an economic boost to the region?'

This post analyses this issue, arguing that it is the collective approach of the Prime Minister, the Attorney-General, and the Industry Minister that is 'vigilante' action. In particular, I argue that the concept of legality within our legal system is intrinsically linked with citizens' rights to challenge executive power. Importantly, the concept of 'standing' to challenge environmental decisions has an ancient connection with environmental sustainability.

Even the Government is bound by law

The Prime Minister's reported comments that the courts should not be used to 'sabotage' development ignore the role of the courts in our system of government. As the New South Wales Bar Association pointed out, 'the courts are not the servant of the executive.' It is the entirely proper role of the court to interpret legislation. A leading scholar on statutory interpretation, Francis Bennion, has pointed out that until interpreted by the courts, any attempts at statutory interpretation are 'mere conjecture.'

The role of the court also is to apply legislation - as it has done in the Carmichael Mine decision. The Prime Minister's statement however, suggests that the courts must prioritise economic growth. This is a contentious statement. Sir Anthony Mason, for example, has said that 
In formulating and applying principles, judges take account of many considerations such as precedent and history as well as morality, culpability, justice and fairness, and do not regard themselves as being at liberty to subordinate these considerations to the dictates of economic goals. In interpreting the constitution and statutes and in construing written instruments, the courts are bound to strive to ascertain the intent of the framers of the constitution, the legislature and the parties to the instrument, as the case may be. In these areas of the law the courts have no charter to shape what is best, simply viewed from an economic perspective.
It is difficult to disguise the Prime Minister's comment, backed up by the mining industry, as somehow a 'neutral' position when the position of the environmental groups has been described as a 'political dispute.'

In reality, the rule of law - as unfashionable as it has become in Australia - is that all are equal before the law. The law, including the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') binds even the Government. The bindingness of law on everyone is not a 'loophole'. It's just the way the system works. To suggest that the Government is not bound by the law, and that the court must uphold a government position rather than the law itself, fits fairly well within the concept of vigilantism.

Government vs citizen

Another principle of our legal system is parliamentary sovereignty. That means that the Parliament has supreme law-making authority within our system of governance; subject, of course, to constitutional limits which include the separation of powers. Parliament is therefore ostensibly empowered to change the EPBC Act to constrain the basis of appeals within the EPBC Act approvals system. To do so however calls into question the appropriate boundaries of government power vis-a-vis the citizen.

The issue the Government is hoping to address is to limit the standing of objectors to environmental decisions. Standing is a legal concept (explained here and here, for example) that seeks to ensure that legal action is only brought by those who are (more or less directly) concerned with the issue in dispute. This makes sense if you consider who might sue to enforce a contract between two people. It would be undesirable to have anyone bring an action to enforce a contract to which they are not a party.

Environmental litigation however is more difficult to conceptualise in terms of 'standing'. In the first place, the environment cannot speak out on its own behalf. The issue of environmental protection is therefore inherently a matter concerning government and the citizen. But if the existence of a rare parrot in Tasmania is at stake, do I, resident in Queensland, have an interest that is sufficient to bring a legal action to protect the parrot? Does my Queensland-based 'parrot enthusiast group' have sufficient interest? Does someone who 'lives 600 kilometres away' have an interest in protecting that distant region's environment?

Using the government's own logic, if people who live more than 600km away from a mine have an interest in that mine going ahead, there is no reason why geographically distant citizens might also have an interest in the biodiversity of the mine region - especially given that the environment itself has no standing at law. The concept of biodiversity encompasses ecological systems that know no jurisdictional boundaries and the law needs to take account of that.

Further, the framework of the EPBC Act adopts principles of ecologically sustainable development. These principles include inter-generational equity. This principle, like that of ecological systems, is not dependent upon place. It affects the public interest in its broadest sense.

Citizens and environment

Another way to answer the question of standing on environmental matters is to consider the centuries-long development of principles that support citizen rights to protect the environment. The companion to Magna Carta, the Charter of the Forest (1217) provided clear limits on the power of the English Crown to encroach on the citizens' access to England's natural environment. It has been said that 'the Forest Charter both contributed to establishing the rule of law and also launched eight centuries of legislation conserving forest resources and landscapes.' [Robinson, ch 12]

Although the relationship between people and the land in Australia post-1788 has evolved differently from that in England, principles of executive action and governance are derived from the same source. It is instructive to note that the rule of law itself evolved through the interaction between the Forest Charter and Magna Carta. Stewardship of the environment has a centuries-old foundation in English law. Additionally, the law has long recognised citizen rights to prosecute environmental claims against government in the interests of protection of the natural environment.

Government proposals to constrain standing to sue on environmental matters appears to expand the scope for executive action and limit its accountability under the law. The law has provided for centuries for boundaries on government decisions over the environment. Is preventing citizen action to hold government to account on the environment the real vigilante action?


  1. Only through public interest litigation, can we make governments take on more responsibility of persuasion and justification in more risk areas.

  2. Thank you for sharing this such a important issue. As we know the environmental law is running with some complexity and need some useful changes to have some effective justification in the risky area. And I think only the government can make those justification successfully.