Fact
Sheet 9
Investigating decision-making under ACT environmental laws
This
Fact Sheet gives an overview of the legal tools and the issues involved
in finding out about government decisions that affect the environment
in the ACT.
Index
First
Steps: Gathering Information
Statements of Reasons
Freedom
of Information Law
Types
of Review
Alternatives
to legal action
Options where the authority refuses to become
involved
Which
Actions Can the Commissioner for the Environment Investigate?
Which
Actions Can the Ombudsman Investigate?
How
to Make a Complaint
Contacts
Further
Information & Disclaimer
Other
Fact Sheet Titles
First Steps: Gathering Information
If a Minister
or Government agency has made a decision that you believe will result
in adverse environmental impacts and you want to challenge their
decision then it’s very important to gather information. Ask
yourself the following questions:
• Who
was the Decision Maker?
• Precisely what was the Decision?
• Under what Act or regulations was the Decision made? When
was it made?
• What were the reasons, if any that the decision maker gave
for making the decision?
• What are the time-limits for appealing a decision?
Statements
of Reasons
It is also
possible to obtain a formal written statement of reasons for some
government decisions. This is required to be a detailed statement
“in writing setting out the findings on material questions
of fact, referring to the evidence or other material on which those
findings were based and giving the reasons for the decision.”
Under the Administrative
Decisions (Judicial Review) Act 1989 (ACT) (s.13), you
are entitled to obtain a detailed written statement of reasons from
a Territory decision maker for certain types of decisions. If you
want such a statement of reasons, make the request in writing. Note
that not all decisions have an associated entitlement to a statement
of reasons. It is important to seek legal advice and carefully study
the legislation in question.
Freedom of Information Law
ACT and Commonwealth Freedom of Information Acts give the community
a legally enforceable right to access to documents held by ministers,
departments and some statutory authorities. The term ‘documents’
is defined broadly to include files, reports, e-mails, computer
printouts, maps, plans, photographs, tape recordings, films or videotapes.
See Fact Sheet No. 13 on FOI law in the
ACT and the Fact Sheet on Commonwealth FOI law.
Types
of Review
The environmental decisions or actions taken under ACT environmental
laws may be reviewed by:
• The
Commissioner for the Environment
• The Ombudsman
• The ACT Administrative Appeals Tribunal
• The ACT Supreme Court
The Ombudsman
and the Commissioner for the Environment do not have the power to
make a decision different to the original decision-maker but can
conduct independent investigations which may lead to recommendations
to government, which may in turn impact on that decision or future
similar decisions.
Options for
challenging government decisions about the environment in ACT Courts
and Tribunals are described in Fact
Sheet 10 - ‘Challenging Decision-making under Act environmental
laws’ .
Alternatives
to legal action
If you are
concerned that someone is causing environmental damage, there are
a range of things you can do to prevent it before taking formal
legal action.
Contact
the person causing the harm
Often the easiest
way to resolve a situation where environmental harm is occurring
is by approaching the person causing the problem and discussing
it with them. It could be that they did not know that their activity
was causing harm, and that on becoming aware of your concerns, they
may agree to modify their activities.
Contact the
relevant enforcement agency
If the environmental
harm being caused is one which is regulated by law, then there will
usually be a government authority that has powers to take action.
For example, if your neighbour is undertaking development without
approval, you can refer the matter to the ACT Planning Authority
which has responsibility for control of developments in the Territory.
Where environmental
harm is apparent, and the relevant government authority has the
power to stop it being caused, it has a range of steps it can take
to prevent the damage. It can do this by contacting the person causing
the damage and seek their agreement to halt or modify the offending
activity. If that person fails to obey such advice, the authority
may have the
power to:
• issue directions or a notice requiring specified action
to be taken;
• undertake the required work itself and recover the cost
from the offender; or
• bring a prosecution in court.
What to do
if the authority refuses to become involved
Under the Territory’s environmental laws, many enforcement
decisions are left to the discretion of a government authority or
a Minister. Sometimes such a government authority will decide not
to take action against a person breaching a law.
Such enforcement
bodies can choose not to take enforcement actions in a particular
case, so long as the grounds on which that decision is made are
lawful. For example, the enforcement body’s limited resources
may be legitimately taken into account in deciding whether to prosecute
in any particular case.
A member of
the public may also refer a complaint against a government authority
to the State or Commonwealth Ombudsman (depending on whether a State
or Commonwealth authority is involved). The Ombudsman will investigate
and hand down a finding on the matter. Although government departments
are not bound to follow an adverse finding, they will usually do
so to avoid negative publicity.
Which Actions
Can the Commissioner for the Environment Investigate?
The Commissioner
for the Environment is a sort of environmental ombudsman. The position
is established under the Commissioner for the Environment Act 1993.
The Commissioner has three functions:
• investigating
complaints “regarding the management of the environment by
the Territory or a Territory authority”;
• conducting investigations as directed by the Minister;
• conducting investigations of his or her own motion into
actions of an agency where those actions would have a substantial
impact on the environment of the ACT;
• preparing the State of the Environment Report for the Territory.
As with the
Ombudsman, the Commissioner cannot investigate actions taken by
judges and magistrates. If the Commissioner decides not to investigate,
he or she must give reasons in an Annual Report.
The Commissioner
can also conduct special investigations of more general matters
arising from individual complaints or which the Commissioner considers
should be investigated for other reasons. Two such investigations
have been into the government’s use of chemicals for pest
control and the government’s progress on its No Waste by 2010
Strategy.
How to Make
a Complaint
Complaints must be made in a form approved by the Commissioner.
The Commissioner’s staff can assist with completion.
Which Actions
Can the Ombudsman Investigate?
The Ombudsman
is an independent statutory watchdog whose primary role is to investigate
complaints regarding government administration. The function of
the Ombudsman is to investigate complaints made under the Ombudsman
Act 1989. The Ombudsman (Commonwealth) also oversees complaints
against Australian Federal Police (which are investigated by the
AFP themselves).
The Ombudsman
cannot investigate action taken by:
• the
Territory or a Territory authority for the management of the environment
• the Commissioner for the Environment
• a Minister
• a judge or a magistrate
The Ombudsman may also decline to investigate if:
• no complaint has been made direct to the agency
• the complaint relates to matters to be reviewed by a court
or tribunal
• there is adequate provision under an administrative practice
for review
• the person complaining does not have sufficient interest
in the matter or is not acting in good faith
• he or she believes that investigation is not necessary
If the Ombudsman
decides not to investigate, he or she has to provide reasons to
the person complaining.
The Ombudsman
can investigate decisions and actions of the ACT Planning and Land
Authority (ACTPLA), which are not strictly related to the management
of the environment. Such environmental matters are investigated
by the Commissioner for the Environment.
The Ombudsman
can make recommendations to the agency involved and can request
the agency to advise its response. If the agency’s response
is not satisfactory, the Ombudsman may advise the Chief Minister
provide the report to the Speaker of the Legislative Assembly for
tabling. The Ombudsman also submits annual reports for presentation
to the Assembly.
How
to make a complaint
A complaint may be made to the Ombudsman either orally
or in writing. There are no particular forms provided, however it
is important to lay out the complaint and the issues clearly.
Contacts
Office of the Commissioner for the Environment
Level 6, 220 Northbourne Ave
Dickson ACT 2602
Tel 6207 2626
mail: envcomm@act.gov.au
www.environmentcommissioner.act.gov.au
ACT
and Commonwealth Ombudsman
Level 6, 1 Farrell Place
Canberra ACT 2600
GPO Box 442 Canberra ACT 2601
Ph: 1300 362 072, 6276 0111
Email: ombudsman@ombudsman.gov.au
Website: http://act.ombudsman.gov.au
ACT
Administrative Appeals Tribunal
ACT Magistrate’s Court Building
4 Knowles Place
CANBERRA ACT 2602
By Post: GPO Box 370 CANBERRA CITY ACT 2601
Ph: (02) 6217 4261 or (02) 6217 4279
Fax: (02) 6217 4505
Email: magistrates.court@act.gov.au
http://www.courts.act.gov.au/magistrates/index.html
www.courts.act.gov.au/magistrates/aat/aat.html
Tel 6217 4444
Environmental Defender’s Office (ACT)
Legal Aid Building
1st Level, 4 Mort Street,
Canberra ACT 2600
Tel: 6247 9420
www. edo.org.au
ACT
Pro Bono Clearing House
Receives and accepts applications for pro bono assistance based
on eligibility criteria, and refers these applications to a network
of relevant Community Legal Centres and law firms in the ACT.
Law Society of the ACT
Level 1, 1 Farrell Place
Canberra ACT 2601
Tel 6247 5700
www.lawsocact.asn.au
Public
Interest Law Clearing House
Victorian based organisation which facilitates access to pro bono
legal services
PO Box 13121 Law Courts
Melbourne VIC 3000
Tel (03) 9225 6680
http://www.pilch.org.au/
Further Information and Disclaimer
The ACT EDO
Fact Sheets have been designed to give readers some understanding
of planning and environmental decision making processes in the ACT.
The law described in this Fact Sheet is current at March 2005.
The information contained in this publication is for general reference
only. These fact sheets provide a summary of the law and are not
intended to be comprehensive or to cover the specifics of any given
situation. If you are contemplating legal action, you should seek
legal advice on the specific facts of your case as soon as possible.
These Fact Sheets cannot replace the need to obtain detailed professional
legal advice in individual cases.
Duplication and reproduction of the information provided in any
ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO
as source.
These Fact Sheets have been prepared with financial assistance from
the ACT Environment Grants Program.
Important: Readers
are advised to seek professional legal advice in relation to specific
legal questions. While every effort has been made to ensure the
content is as accurate as possible, the EDO does not accept any
responsibility for any loss or disadvantage resulting from reliance
or use of this work.
Other
Fact Sheet Titles
Note: Some other fact sheet titles are unavailable
at this time as they are being updated following legislative amendments
and administrative changes. These fact sheets will be added as soon
as possible.
Fact
Sheet 1 Environmental and Planning
Law in the ACT
Fact Sheet 2 National Capital
Plan and the Territory Plan
Fact Sheet 3 The Development Approval
Process
Fact Sheet 4 EIA Law in the ACT
Fact Sheet 5 Management of Public Lands
Fact Sheet 6 Heritage Law
Fact Sheet 7 Biodiversity Protection Law in the ACT
Fact Sheet 8 Tree Protection
Fact Sheet 9 Investigating Decision Making about
the Environment
Fact Sheet 10 Challenging
Decision Making about the Environment
Fact Sheet 11
Pollution Control Law in the ACT
Fact Sheet 12 Noise Pollution Control
in the ACT
Fact Sheet 13 Freedom of Information
Law in the ACT
Fact Sheet 14 Freedom of Information
Law (Commonwealth)
Fact Sheet 15
Incorporating an Environmental Group
in the ACT
For information
about State environmental legislation, follow the links from the
national EDO website.
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