Mark Parnell, LLB, BComm, MRUP

Barrister and Solicitor,

Environmental Defenders Office (SA) Inc.
 
 

Abstract

Administrative decisions underpin most environmental law regimes. Decisions made by ministers, bureaucrats and members of Statutory Authorities can be literally life or death decisions for the environment. The role of the community sector in helping these decision-makers to make good decisions cannot be over-estimated. Using some recent case studies from the files of the Environmental Defenders Office, this paper identifies some of the major impediments to genuine public participation in environmental decision-making. Access to information, rights to make representations, obtaining reasons for decisions and the right to appeal against bad decisions or bad processes will be explored. Finally, the paper will compare current Australian practice with emerging international trends such as the Arhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.
 
 

Impediments to public participation
 
 

Philosophical questions - who should be able to participate, when & how?

At the root of most discussions about public participation in environmental decision-making are philosophical questions about the nature of democracy. Whilst there are dozens, perhaps hundreds of theories as to what democracy means, two particular theories are dominant. These are "elite democracy" on the one hand and "participatory democracy" on the other. The elite theory has also be been described as "bureaucratic" or "technical" and the "participatory" theory as the "pluralist" or "social democratic" approach. In between these two theories lies a range of compromise theories seeking to reconcile some of the inherent inconsistencies in our aspirations such as a desire for increased public participation and a desire for greater expertise and efficiency in decision-making.

One outcome of elite or bureaucratic theories of democracy in relation to environmental decision-making is that public participation is discouraged or denied. The assumption is that governments know best and that public participation would simply lead to inefficiencies in the decision-making process and not add substantially to the quality of the decisions that are made.

This paper is premised on the idea that since most environmental decisions are concerned with establishing rights and responsibilities over the use of common natural resources (such as water, land, air and biodiversity), therefore environmental laws should enshrine substantial rights of public participation to provide checks and balances on administrative government and to improve the quality of decisions. Public participation can also enable advocacy on behalf of interests not normally represented (such as a conservation group advocating for the protection of biodiversity).
 
 

Access to information

Individuals and community groups find it very difficult to participate meaningfully in environmental decision-making unless they have access to information relevant to the decision to be made. Ideally, the public should have access to the same information as the decision-maker. In practice, this rarely occurs.

Many clients of the Environmental Defenders Office (EDO) have complained about their inability to get information from government departments or local councils. Obtaining information from companies is almost impossible unless it is voluntarily provided or accessed 'second-hand' via government records.

In relation to information held by governments, there are "Freedom of Information" (FoI) laws, but often these can be expensive and time consuming to use. In South Australia, agencies have up to 45 days to deal with an FoI application by which time the opportunity to participate in a decision-making process may have passed. The cost element of FoI can also be daunting unless you are fortunate enough to be poor enough to be entitled to "free" FoI under the relevant "waiver of fees" provisions. The EDO has been fortunate in that many of our clients are both impecunious and enthusiastic gatherers of environmental information. Another alternative is to channel your application through a Member of State Parliament, who is also entitled to a free FoI allowance. There is no provision for waiver of fees on public interest grounds.

The view taken by the Environmental Defenders Office (EDO) is that FoI is really a last resort in gathering environmental information. The EDO approach is to encourage agencies to make information available to members of the public as a matter of course, rather than having to rely on FoI. The reason for this is not just the cost and delay, but to encourage cultural change within organisations. The issue at stake here is more than just the provision of the information. It is also the issue of how agencies interact with the public outside the strict requirements of Acts or Regulations. Whilst it might seem utopian or naïve, the EDO encourages agencies to make relevant information available because they recognise the general public as important stakeholders and not because they are forced by legislation to give access to documents and files.

The following are two examples of cases where community pressure has resulted in a change of policy within government agencies over access to information.

Example 1.- Access to Pollution Information

Industries licensed by the Environment Protection Authority (EPA) are often required to monitor their pollution outputs and to report to the EPA on the results. Under the South Australian Environment Protection Act and Regulations, the EPA has a discretion as to what pollution monitoring data it puts on its "Public Register". When asked by the Environmental Defenders Office to exercise this discretion in favour of full disclosure, the EPA was decidedly nervous and worried about the reaction from industry. There were also concerns raised about important trade secrets being embedded in toxic sludge or chimney smoke. The real problem however was that the EPA had so rarely been asked for this information that it hadn't yet formulated a policy on disclosure. When a policy finally did emerge (after many letters and thinly veiled threats of a media campaign from the EDO), the policy was generally supportive of disclosure. The EPA now makes available on request, all pollution monitoring data collected by licensees pursuant to their licenses. This enables individuals or community groups to undertake their own analysis of this information. Access to raw data is particularly important as there is a tendency on the part of industry to "average-out" pollution figures and thereby hide significant peaks which may exceed mandatory pollution standards.

Example 2 -Obtaining Copies of Development Applications

Under the SA Development Act 1993, planning authorities (mostly local councils) are obliged to make certain information about development applications available for inspection by members of the public. Some authorities take the view that in most cases, members of the public should have access to all relevant information on their files including detailed plans and also the reports prepared by Council planning staff. Photocopies of this material will often be provided on request. Other authorities have a somewhat anal-retentive view of their obligations. They only provide the bare minimum amount of information required to satisfy the legal requirements and never provide (or even sell) photocopies.

The Development Assessment Commission (DAC) (a statutory authority) previously had such policies. Members of the public (including EDO solicitors) requesting information about pending development applications have been forced to copy out the required details long-hand. "We don't provide photocopies" was the policy and the "floodgates argument" was the rationale.

The result of this type of approach is often that representors appearing before planning authorities have only a fraction of the information held by either the proponent or the decision-maker. When clients approach the EDO with this scenario, we encourage them to lodge an appeal, as that is the only way they can be assured of getting access to all the necessary paper work to help them form their views on the proposed development. In South Australia, for the $60 appeal fee, members of the public can obtain a complete set of all the relevant paper work concerning a development and also "buy" a seat at the pre-trial negotiating table. In effect, many members of the public have been effectively encouraged to commence legal proceedings in order to obtain full details about a development in relation to which they have legal rights of participation. This is hardly an efficient system.

The happy ending to this story is that the Development Assessment Commission has now adopted a policy of making all information available to the public at least 5 days before its meetings and to provide photocopies on payment of a small fee. This is an approach for which the DAC deserves congratulations. Unfortunately, there are still many local Councils which refuse this level of access, therefore potentially unnecessary appeals will still be lodged, simply to level the information playing field.
 
 

Rights to make representations

Public participation in environmental decision-making often involves members of the public being entitled to make submissions or representations to the decision-making body. Ideally, this right should be exercisable in writing and/or in person. Of course it follows that the decision-maker must also be legally obliged to take submissions into account before making a decision.

In South Australia, the only regime which comes close to this standard is the development assessment regime under the Development Act 1993. Even under this Act, only a small proportion of non-complying or other more controversial types of development attract this right. Whilst there is no limit on the amount of detail which can be included in written representations, it is common practice in most councils to allow only 5 minutes per representor for verbal submissions.

The pollution licensing regime under the Environment Protection Act 1993 requires new applications to be advertised and members of the public can comment in writing, but not make personal representations. The EPA must have regard to the written submissions before making its decision. In practice, the EPA will often provide local groups with the opportunity to raise their concerns personally, however there is no legal obligation to do so.

Under the Mining Act 1971, applications for certain tenements such as Mineral Exploration Licences or Mining Leases must be advertised, however representations from conservation groups are always ignored and no licence or lease has ever been refused on environmental grounds.

Under the Native Vegetation Act 1991, applications to clear native vegetation are determined by a statutory authority - the Native Vegetation Council. Under this Act, the public has no rights to participate in decision-making. Occasionally, the Native Vegetation Council will invite interested persons to appear before it and make submissions, however this is entirely at the discretion of the Council.

These four examples are typical of the spectrum of rights of representation that exist in South Australia. The prevailing philosophy behind most environmental Acts is that the decision-making process is generally a matter between the "regulator" and the "regulated" and should not involve public participation.
 
 

Obtaining reasons for decision

If citizens are to have confidence in administrative decisions affecting the environment, then they need to know that these decisions are based on sound information, have canvassed all the relevant issues and have been subjected to a methodical, transparent and accountable decision-making process. One of the best way of instilling this confidence in the community is for decision-makers to be required to give reasons for their decisions.

Personally, this philosophy seems to be at odds with most administrative cultures that I've come across in my 11 years working in the community conservation sector. Administrators are usually reluctant to give reasons for their decisions and they rarely do so unless forced to by law. Even then, they will often do the minimum they think they can legally get away with.

The reasons for this reluctance are cultural and personal. At a cultural level within environmental or resource bureaucracies, "courage" (in the 'Yes, Minister' sense of the word) is rarely appreciated by superior officers and a more certain path to career advancement would seem to be "head down, tail up and hide your mistakes". This approach is further supported by the legal secrecy and confidentiality obligations of public servants. Whilst 'whistle-blowers' protection laws already exist in many jurisdictions, these are generally regarded as ineffective and provide no incentive to public servants disclosing bad or improper decision-making practices.

From the perspective of the individual decision-maker, no-one likes to see their decisions pulled apart, analysed and perhaps over-turned. It is human nature to be defensive about our work and our reputations.

My experience of many administrators in this field, be they planners, EPA staff or Primary Industries officers is that they see their jobs as largely technical exercises which are beyond the understanding of the average citizen and therefore citizen participation is not to be overly encouraged. The prevalent view is that being obliged to give reasons for decisions would simply be a time-wasting exercise and would add nothing to the quality of decision-making. Even worse, having to give reasons for decisions would simply encourage appeals and other legal challenges.

Would the quality of environmental decision-making be improved if reasons were required to be given?

Regarding decision-makers as the efficient and impartial enforcers of government policy is problematic in that it ignores issues concerning the criteria or principles used in making decisions.

In my view, giving reasons for decisions would be an excellent way for citizens to better understand the role of environmental decision-makers. If the technical rationales for a planning decision or pollution licensing decision were better understood, then communities would be more capable of assessing whether the relevant guidelines, principles, planning schemes or Environment Protection Policies actually do the job the community expects. If they aren't meeting their objectives, then law reform can be promoted to improve the environmental outcomes of future decisions.

Case study: Olive groves near National Parks

An issue that was on the front page of my local newspaper recently was the decision of the Environment Resources and Development Court to approve an olive grove near Belair National Park in the Hills Face Zone which forms much of the backdrop to metropolitan Adelaide. Whilst this was a Court decision, it was in effect, an administrative decision to the extent that the Court stands in the shoes of the original administrative decision-maker in planning appeals. Community concern about this development and this decision revolved mainly around environmental issues such as the spread of feral olives through natural bushland. One only has to travel a short distance from Adelaide to see the impact of feral olives on open space and in remnant native vegetation.

From the point of view of many of the local residents and conservation groups, the key question for the relevant authority should be: "Is it a good idea to have olive groves in close proximity to National Parks?" From the decision-maker's point of view however, the only question is: "Is this proposed development seriously at variance with the relevant planning scheme [Development Plan]?"

Most people don't understand how the development assessment system works and many would assume that decision-makers have virtually unfettered discretion to make "good" decisions or "the right" decision. Because this olive issue ended up in Court, where reasons for decisions must be given, it is now clear to local conservationists that the real problem is with the law (in this case, the local Development Plan) and accordingly, law reform submissions were made and the Planning Minister has now changed the Development Plan to better reflect the level of protection expected by most residents of this particular zone.

The point of this example is that it shows a link between the requirement to give reasons for a decision and the ability of communities to better engage in environmental law and policy formulation and reform.

Another reason for concluding that decision-making quality would improve if reasons were required to be given is the additional discipline on decision-makers that flows from such accountability. Whilst I have no empirical or other data to support the view that decisions that are justified or supported in writing are more likely to be made with greater care and consideration, it makes sense that this would be the case. At worst, a requirement to give reasons probably makes it harder to make bad decisions and therefore more likely that good decisions will be made.

Is giving reasons for decisions a waste of time?

The "waste of time" argument can be partly countered by ensuring that reasons only have to be given in certain circumstances and not for every decision. This could be a two tiered process. First, it could be a requirement that all decisions of a certain kind (eg. new pollution licences, native vegetation clearance permits or major planning approvals) must include published reasons. Secondly, there could be a general right to request reasons in certain circumstances. No doubt both these proposals would require more resources than are currently applied to decision-making, however the cost could be justified in terms of more open and accountable government and also in improved quality of decision-making. For some agencies a new requirement to give reasons would be a difficult imposition onto existing structures. For example, the SA Environment Protection Authority, which consists of part-time members with no directly-accountable staff would have difficulty incorporating these new requirements into current practices . However, this is not an argument against these reforms, it is an argument for more independent resourcing of the EPA.

Legislating for reasons to be given

Earlier in this paper, I made the point that administrators need to be forced by legislation to provide reasons for their decisions. That is not always the case. Some administrators, especially those exercising quasi-judicial functions, routinely provide reasons for their decisions because that is part of the culture of the organisation, not because the legislation forces them to. In most cases however, legislation is needed. However, even when an Act or Regulations require reasons, my experience is that environmental administrators will usually do as little as possible to comply with this requirement.

For example, in South Australia, if a planning authority (such as the Development Assessment Commission) grants development approval and attaches conditions, it must give reasons. The relevant provision of the Development Act says (at s.42):

Case Study: Louth Bay tuna feedlots

Below are the "reasons" given by the DAC in approving 42 tuna feedlots in Louth Bay last year:

Reasons for Decision:

The proposed development is not seriously at variance with the relevant provisions of the Development Plan.

Reasons for Conditions

To ensure the development is of a high standard and to maintain the objectives of the Development Plan

That decision was subsequently successfully appealed to the Environment Resources and Development Court in what became the State's longest environment case in which 20 witnesses (mostly scientists and government officials) gave evidence over 3 weeks. If the original decision-maker had been obliged to give proper reasons, maybe the DAC would have considered the issue more carefully and made a different decision? At least the DAC would have had to explain up-front why they did not follow the advice of their own planner, the Coast Protection Board, the EPA and all public representations.

As for what constitutes "proper" reasons, this should include at least the following:

• Findings on material questions of fact
• Evidence on which those findings were based
• Reasons for the decision.

Appeal rights

The right to appeal "on the merits" against decisions affecting the environment in South Australia is limited to a small proportion of developments under the Development Act. No other environmental laws contain any appeal rights for members of the public. Many Acts include appeal rights for disaffected or aggrieved developers or polluters, however members of the public are generally not given standing to appeal.

The policy basis behind most of these restrictions on appeal rights seems to be a combination of the "floodgates argument" (if 3^rd party appeals are allowed, they will overwhelm the Court system) and a deeper philosophical view that environmental disputes should only be recognised when they exist between the regulator and the regulated, (with no role for 'meddlesome' community groups or individuals).

On the evidence, the floodgates argument should be well and truly dead by now, (especially given the experience of many years of open standing provisions in NSW), however it regularly rises from the grave to threaten doom, gloom and economic chaos on those systems that embrace it.

An alternative and more positive view of third party appeal rights is that such rights promote better decision-making by environmental authorities. If every decision was made in the knowledge that it could be reviewed by a higher Court or tribunal, then this would impose considerable discipline on the decision-maker to properly consider both the decision-making criteria and the best available evidence.

Another controversial aspect of appeal rights is whether such rights should be limited to "persons affected" by a decision or whether "open standing" should enable any person to challenge the merits of a decision. With very few exceptions, the Environmental Defenders Office supports open standing, for the reasons set out earlier (ie. general public interest in decisions affecting the environment.)

Whilst it may be conceded that those living very close to a proposed development or polluting activity may have a stronger motivation to challenge a decision, that is not a sufficient reason to limit appeals to that class of person. In fact, some conservation groups give preferential treatment to issues where there are no directly affected communities, such as proposed developments in remote outback or off-shore areas. To limit standing to "affected" persons only serves to entrench an "anthropocentric" view of the environment where "out of sight is out of mind".

In practice, in South Australia, only a small number of environmental decisions are able to be appealed by third parties. These include certain types of development applications, however most minor "complying" forms of development and all declared "major projects" do not attract appeal rights. There is no right to appeal against vegetation clearance approvals, pollution licences, mining approvals or any of the hundreds of other administrative decisions affecting the environment.

Whilst "open standing" to appeal all environmental decisions would add to the amount of litigation in the Courts, there is no evidence that this would constitute an unmanageable flood. In any event, there are a number of limiting mechanisms which exist. Clearly, the effort and expense of bringing legal challenges would provide one disincentive, whilst Courts themselves could be given the power to filter out unmeritorious appeals at an early stage.
 
 

Judicial Review

The right of citizens to ensure that governments follow due legal process is a fundamental tenet of democracy and the rule of law. Unless removed by Parliament, this right extends to all administrative environmental decisions by Ministers, bureaucrats and statutory authorities. Whilst this may seem a powerful tool for accountability, "judicial review" is rarely used in practice because it does not allow the merits of a particular issue to be explored, only whether or not the decision was "properly made according to law". A typical remedy arising from such an action would be for the Court to order a decision-maker to go back and re-consider its decision. In many cases, this will not prevent the decision-maker from making the same decision again. In many cases, the most that can be expected from judicial review actions is that they can delay a decision-making process and "buy time" to rally public and political support.

In South Australia in 1996, the State government legislated to remove rights of judicial review in relation to decisions of major environmental, social or economic importance. An amendment to the "major project" Division of the Development Act 1993 provided that:

The Environmental Defenders Office has advocated strongly for the last 4 years for the repeal of this section. Whilst repeal is unlikely to result in a rash of judicial review against major projects, it is important to ensure that decision-makers act properly by providing citizens with the mechanism to insist on due process in decision-making.
 
 

International trends

Having identified some of the administrative and legal impediments to public participation in environmental decision-making, how do these compare with the situation internationally?

In fact it may be worth going back a step and asking whether or not emerging international standards are relevant to local environmental decision-making? Prior to the High Court's decision in the 1995 "Teoh" case, it was generally accepted that international treaties weren't binding unless implemented through domestic legislation. That meant that the World Heritage Convention was part of Australian law, but most of the other environmental treaties such as those protecting migratory birds or wetlands weren't recognised.

The High Court decision in Teoh threw all that into disarray. The Court held that as citizens, we had a "legitimate expectation" in administrative law that the Executive Government and its agencies will act in accordance with the terms of international treaties Australia has signed, even where those terms have not been incorporated into Australian law.

This decision affirms what most people would have regarded as common sense - that Australia signs international treaties intending them to influence our domestic policies and actions. Any other view would only see us labelled as hypocrites by the international community.

Nevertheless, the Federal Government has tried and the South Australian Government has succeeded in overturning that "legitimate expectation". At the Commonwealth level, the government has attempted to do this through Ministerial pronouncements, whilst proposed "anti-Teoh" legislation remains bogged down in the Senate.

At the State level, the Government passed special "anti-Teoh" legislation, (presumably in the dead of night, because it wasn't picked up by any of the minor parties or any community groups to my knowledge). This State Act - the Administrative Decisions (Effect of International Instruments) Act 1995 has the following as its main provision:

Arhus Convention

"Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters"

As a convention of the United Nations Economic Commission for Europe, this instrument is in no way binding on Australia. It is raised here for two reasons. First, it represents an international standard to which many of the world's most developed countries have agreed. Secondly, the Convention provides for non-European States to be admitted as parties to the Convention and thereby be bound (in International Law) by its provisions. Whilst Australia does not appear to have shown any interest in the Convention, it may be persuaded to consider becoming a signatory in future years.

The provisions of the Convention dealing with "Access to Environmental Information" are similar to most Australian "Freedom of Information" laws in that it sets out a general right of access to be restricted only in certain defined circumstances. Similarly, the provisions dealing with dissemination of environmental information have parallels in Australian "State of the Environment Reporting", the Environment Protection Authority's "public register" or the "National Pollutant Inventory". There are however many other government agencies who have no formal mechanism for publishing or disseminating environmental information. These agencies would not currently meet the Arhus standards.

The provisions of the Convention dealing with public participation in Environmental Decision-Making also have parallels in some Australian legislation such as the rights to participate in development assessment decisions. Whilst the Convention is somewhat ambiguous as to whether it supports open standing to participate, it could be argued that the phrase "the public concerned" should be given a wide interpretation.

In relation to rights of citizen enforcement or appeal against environmental decisions, the Arhus Convention suggests that standing should be restricted to persons "having a sufficient interest" or whose rights are affected. Whilst any provision for appeal would be welcome by conservationists in most Australian jurisdictions, these provisions could be seen as unduly restrictive of open standing. Hopefully at least, community-based conservation groups would be regarded as having sufficient interest to warrant standing under these provisions.

However, even if Australia did become a signatory, the Convention unfortunately would have little, if any, effect unless it was incorporated into Australian law.