Reforming the law of environmental standing and third party appeal rights in Victoria

Abstract

Introduction: This Occasional Paper considers the need to update Victorian environmental law in connection with the law of standing and the rights of third parties to appeal the decisions of environmental regulators. Two recent events have combined to make such a consideration timely and appropriate. First, during the recent election strong commitments were made “to give Victorians a better Government by revitalising Victoria's democracy, restoring the checks and balances that keep government honest and accountable, and returning proper standards of conduct to government”. In the environmental context, it was emphasised that “[u]nderpinning Labor’s approach to conservation and the environment is a fundamental commitment to greater accountability and public scrutiny”. As discussed below, opening up the law of standing and expanding third party appeal rights would help to ensure that these important commitments are met. Second, the impetus to consider reforming the law of standing in the environmental realm has also been prompted by the recent unanimous High Court of Australia ruling in Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd.1 The High Court held that open standing provisions are beyond any doubt constitutional. More importantly, however, in Truth About Motorways the High Court emphasized that open standing provisions serve salutary public interest purposes in contemporary administrative circumstances. Accordingly, it seems advisable in such circumstances to seriously the adequacy of the current standing and third party appeal arrangements in Victoria. The need for such a review becomes even more apparent when one discovers, as discussed below, that except in two important but limited circumstances, open standing and third party appeal rights in Victorian environmental law are lacking. This memorandum proceeds as follows. It first highlights current opportunities for the reform of Victorian environmental law to provide for open standing and third party appeal rights. It next turns its attention to contemporary international norms that reflect the considered view of the international community about the importance of public participation, including by use of the courts, in the environmental field. It then considers the pros and cons of reforming the law to provide for open standing and third party appeal rights. This memorandum also includes a detailed Appendix which sets out statutory provisions across Australia, and internationally, that provide both unqualified and qualified open standing to members of the public to enforce environmental law. The Appendix also contains a large number of examples of Australian statutes that provide third party appeal rights in connection with administrative environmental decisionmaking.