Many of us are breathing a sigh of relief as restrictions cautiously ease across Australia to allow for somewhat greater social interaction and economic activity.  As Australia’s initial response to COVID-19 gives us reason to hope a health crisis has been contained in this country, governments have rapidly switched gear to economic recovery.  

Subsequent rapid changes to laws, as well as continuing disruption to legal processes as a result of COVID-19, continue at an almost daily pace around Australia. 

What is EDO doing? 

Our lawyers across the country are tracking the exercise of emergency powers on planning and environmental laws, and announcements of economic recovery measures, as well as developing principles to help guide good decision making during this unprecedented time.

On 1 May 2020 we summarised the laws passed and changes made to planning and environment laws in response to the COVID-19 pandemic. 

This article by Revel Pointon and Nicole Sommer develops five key principles as a benchmark for actions by governments and decision-makers.

We also now provide an updated  overview of development or environment-related law reform since 12 March 2020, along with a summary table.

We continue to track four key issues: 

  1. How are governments exercising emergency powers to alter planning and environment laws now that public health restrictions are easing?
  2. How are emergency powers affecting access to justice and fair hearing rights, through moves to online public hearings, notice and exhibition?
  3. To what extent is scrutiny of courts and tribunals compromised through lack of public access to courts and tribunal hearings where hearings are online or court access limited?
  4. Will governments respond with recovery measures that are positive or that have deleterious long-term implications, for example, law changes which work against nature, not for it, especially in relation to climate change and biodiversity?

We have produced five principles we think should guide how governments and decision-makers act. Our principles are a benchmark against which government actions can be measured.

Principle 1:   COVID-19 emergency powers should be exercised temporarily, transparently and only as necessary to respond to the health crisis

Principle 2: Ensure access to justice and procedural fairness by providing meaningful and equal opportunities to access online public consultation and hearings, adjusting processes or deferring hearings

Principle 3:   Courts and tribunals could use the opportunity to advance open justice by expanding public access to online hearings  

Principle 4:   Laws passed for economic and social recovery must put us on a path to a safe and healthy climate and restore the natural environment

Principle 5: Economic stimulus measures must maintain or improve laws, processes and standards for environment and cultural heritage protection, transparency and accountability  and empower Aboriginal and Torres Strait Islander peoples

What have we found?

Of necessity, our primary focus in coming weeks and months will be economic stimulus/recovery measures. Governments have started releasing plans and legislation laying out economic stimulus.

How we meet the economic challenge of COVID-19 will dictate the future of our environment and climate. The science tells us that the next 10 years are critical to ensure we have a safe climate and an environment that will provide for future generations. It is imperative that laws passed to stimulate the economy seize that opportunity. 

However, we have also found that there is an urgent need to strike the right balance between the necessity of public health restrictions and protecting important community rights as restrictions ease.

While this may not seem an urgent task, emergency powers are by and large tied to public health emergency declarations. This means that, as public health restrictions ease, the emergency powers exercised to alter rights and liabilities also need review. 

Principle 1: COVID powers should be exercised temporarily, transparently and only as necessary to respond to the health crisis

In New South Wales, Queensland, South Australia, Tasmania and Western Australia, Parliaments have delegated to the executive a broad power to change planning laws to respond to COVID-19, usually exercisable by a Minister by order, direction or notice.  The Minister has a broad discretion to exercise these powers, where there is a link to the declaration of a State of Emergency under public health laws, or similar link.

Whereas in other jurisdictions, amendments to laws are temporary or are linked directly to the state of emergency declaration, for instance, in Victoria.

The intent of these laws was for immediate and necessary actions in direct response to the pandemic as it unfolded in Australia – to allow for new medical centres where needed to treat the sick, to guarantee supply chains, to allow businesses to operate differently. Governments have by and large acted consistently and used powers for these purposes to date. 

For a copy of executive orders made in each State and Territory, see this helpful legal text prepared by members of the Victorian Bar.

However, there is need for scrutiny as long as the public health emergency declarations remain in place or the power is enlivened to ensure these powers are used for the purpose for which they were enacted.

Where powers authorise changes to alter planning and environment laws to respond to the public health emergency of COVID-19: 

  1. those powers should be exercised cautiously, be temporary in effect, and only where legitimately necessary to respond to or plan for the health crisis;  
  2. economic and social recovery should not be addressed under temporary COVID-19 powers, except as necessary to ease businesses back into operation by allowing for social distancing and necessary changes to operations; and
  3. decision makers should increase (not decrease) transparency around decision-making that affects communities, including providing open, timely access to information.  

Principle 2: Ensure access to justice and procedural fairness by providing meaningful and equal opportunities to access online public consultation and hearings, adjusting processes or deferring hearings

One of the key changes made to planning laws is the move to online publication of notices and exhibition of development applications, and for public hearings by planning commissions and inquiry bodies to also move online. While online access seems the norm to many of us, we are acutely aware that very many people do not have equal access to online forums. For instance, regional and remote communities may have limited data, which limits streaming of public hearings or downloading complex expert reports. Some have no access to the internet at all, relying on phones or public libraries, particularly older Australians and people in remote areas. This is our experience working with clients every day, some of whom do not have email and are heavily reliant on landlines, post and access to hard copies at council offices.

We know that lack of equality of access to online hearings and consultations will disproportionately impact on the most vulnerable in our community.  The consequence is that continued reliance on online hearings and notice is likely to affect those people’s ability to meaningfully engage in consultation processes, or to fully participate in hearings in a fair way.

The right to be accorded procedural fairness, and the legitimate expectation to be heard in person when a public hearing is held, are central aspects of the principles of administrative justice which apply to executive decision-makers.

This issue is playing out in real time for the regional community of Narrabri in NSW’s north-west, in relation to public hearings for the Narrabri Gas Project, where internet access and reliable connection cannot be guaranteed.  Some 23,000 submissions were made in response to public notice to a development application for the project. On 3 March 2020, the NSW Planning Minister directed the Independent Planning Commission to conduct a public hearings and report within 12 weeks. On 21 March, the NSW Minister for Health banned mass gatherings and three days later, closed all places of gathering.  

The circumstances of this hearing have the real potential to deny this community procedural fairness.  EDO is taking action for this community, having written to the Planning Minister and Independent Planning Commission NSW, arguing for a deferral of public hearings until fair hearing processes can be guaranteed. 

The right to a fair hearing and procedural fairness are fundamental to our system of laws and are central aspects of administrative justice.

EDO will continue to stand up for procedural rights for our community, and to act for meaningful public participation in environmental decision-making.  

Decision-makers must uphold administrative justice: 

  1. take account of the disruption COVID-19 has caused to people and their capacity to meaningfully engage with decisions that affect them; 
  2. recognise that not all people have equal online literacy or access, reinstate traditional forms of notice and exhibition when safe to do so, extend notice periods where necessary, and review processes to ensure procedural fairness; and
  3. alter hearing processes, including deferral of public hearings and consultations where necessary to ensure hearings are procedurally fair for all. 

Principle 3: Courts and tribunals to use the opportunity to advance open justice  

Open justice is a central tenet of our judicial system and rule of law – Justice must not just be done but be seen to be done.

Open justice means that there is public scrutiny of how hearings are conducted by judges, by ensuring hearings are open to the public and to the media to report on.

In recognition that there are barriers to public and media scrutiny in both online and traditional hearings, this is an opportunity for our traditional institutions to innovate and advance open justice.   

Now is the opportunity to breach traditional boundaries of open justice, and look to new technologies to open the doors of courts and tribunals to the public at large. Online streaming or audio-visual recordings, a new practice instituted by the High Court of Australia, will allow both the public and press substantially greater oversight of the courts. This is even more important as regional and independent news sources close, and traditional news sources reduce their presence in many centres.

Our lawyers recently appeared in an online Federal Court hearing, on behalf of a representative of the Gomeroi people, to protect significant cultural heritage sites from the Shenhua Watermark Coal Mine. The Federal Court allowed  any member of the public to listen to the hearing in real time, by making a request to the Judge’s Associate.

This practice was adopted by the Federal Court in two subsequent decisions, where it observed that open justice requirements could be met through procedural arrangements allowing the public to have access. 

The Federal Court’s practice guide indicates that the registry for each list will provide guidance to members of the public wishing to attend online hearings.

Courts such as the Federal Court have been conducting online hearings and had e-filing procedures in place much longer than many courts and tribunals. Many courts, tribunals and public bodies may not have the resources or technology to readily enable this form of public access. However, the move to online hearings may present an opportunity to make online public access to hearings possible in future.

We encourage courts, tribunals and other bodies conducting public hearings to take new opportunities to advance the principle of open justice by:   

  1. reviewing procedures and practice directions to allow public and media access to hearings online, both on a case by case basis and with standard directions for matters of public interest; 
  2. taking the opportunity to increase public access to hearings through online streaming, through making audio-visual recordings available and other innovative means, where possible; and 
  3. continually reviewing public health advice to enable restoration of public access to live hearings before the courts and tribunals as soon as safe to do so. 

Principle 4: Laws passed for economic and social recovery must put us on a path to a safe and healthy climate and recover biodiversity  

The pathway to economic recovery is an opportunity to shift our economy toward a safe climate and better environmental future through well-designed regulation. Governments must resist the temptation to pass laws with long-term implications, or to entrench our economic recovery in industries without a long-term sustainable future.  

Laws can provide investment certainty to renewable industries, stimulate local jobs in long-term industries such as regenerative agriculture and land management, and guarantee this generation and future generations a safe and healthy environment through sending signals to investors and removing perverse incentives.  

Positive incentives can be implemented for biodiversity conservation, including through accounting for the true value of environmental assets in decision-making, National Environmental Accounts, and incentivising environmental restoration activities. Communities and sectors can be empowered and resourced across Australia to develop action plans to transition away from high greenhouse gas emitting processes to sustainable, healthy and prosperous pathways forward.

For these reasons, any changes to laws must: 

  1. Be consistent with the principles of ecologically sustainable development, including the precautionary principle and inter-generational equity, by ensuring that decisions made now maintain and enhance the health, productivity and diversity of the environment for the benefit of future generations. 
  2. Facilitate economic reform to ensure a fair, safe and healthy climate for current and future generations, recognising that human health and ecosystem health are inextricably linked.
  3. Improve legal protections for nature, ensure the health of our ecosystems and species is stabilised, and invest in recovery and regeneration of nature. 

Principle 5: Economic stimulus measures must maintain or improve laws, processes and standards for environment and cultural heritage protection, transparency and accountability and empower Aboriginal and Torres Strait Islander people

A key risk of short-term economic stimulus measures is that governments will introduce laws to facilitate development that weaken environmental or cultural heritage protections lock in long term environmental damage and weaken public rights in relation to development proposals.

Australia’s environmental values are being eroded to the point of an ecological crisis. Evidence was given by the Threatened Species Commissioner to the Royal Commission this week that the status of biodiversity in Australia is “poor and worsening” and that Australia extinction rate is the 4th highest globally. The Interim Report  of Senate Inquiry into the Faunal Extinction Crisis found that faunal extinctions are direct link to the weakness of our environmental laws. The recent destruction of an ancient heritage site of the Puutu Kunti Kurrama traditional owners in the western Pilbara by Rio Tinto is a sobering example that our laws do not adequately protect our cultural heritage.

Federal Environment Minister Sussan Ley has flagged changes to the national environmental law ahead of the completion of the EPBC Act Review. Bills in Tasmania and Western Australia propose new assessment processes for major development proposals. Governments in New South Wales, Queensland, Western Australia, Tasmania and the Northern Territory have signalled initiatives to co-ordinate or accelerate major development proposals.

The National COVID Coordination Commission was established by the Federal Government on 25 March 2020 to ‘coordinate advice to the Australian Government on actions to anticipate and mitigate the economic and social impacts of the global COVID-19 pandemic’, including to ‘ unlock resources, break through bottlenecks and fix problems’. Serious questions have been raised as to the real or perceived conflicts of interest held by members of the Commission, and lack of strong oversight mechanisms or legislative accountability.

Four State and Territory governments have established bodies or initiatives to guide economic recovery measures:

It is vital that economic responses to COVID-19:

  1. Adopt the principle of non-regression of environmental standards, laws, policies and protections.
  2. Empower Aboriginal and Torres Strait Islander people to protect Country.
  3. Guarantee meaningful public participation in environmental decisions, including through merits review.
  4. Are guided by open and transparent processes, include diverse viewpoints including Aboriginal and Torres Strait Islander people and are subject to rigorous independent oversight which involve public scrutiny.

While Australia faces enormous health and economic challenge, there is equally an opportunity to get the legal settings right. By following these 5 principles, decision makers can ensure they are leading Australia to a future where nature thrives.


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