As the COVID-19 crisis has gathered pace globally and nationally, we’ve been confronted with a period of unprecedented transformation and enormous uncertainty. However, the huge environmental challenges we face on climate and biodiversity loss remain and EDO continues to use the law to squarely face them.
Our national team is actively navigating the legal system as it moves online. Importantly, our lawyers are still scrutinising government decision-making at all levels. Indeed, the current crisis requires us to be even more vigilant in our legal watchdog role.
Overview
EDO lawyers have been watching as, in response to COVID-19, State and Territory governments across the country have passed laws or made amendments which alter planning and environmental controls and access to courts, tribunals and planning panels.
Nicole Sommer, Managing Lawyer Hobart, and Revel Pointon, Senior Solicitor Brisbane, have now prepared an overview of changes to planning and environment laws and hearing rights.
You can download our table with links to the new legislation and also read below in more detail about the changes, grouped under Commonwealth, State and Territory.
While laws differ in each State and Territory jurisdiction, in general they provide broad discretion on a Minister to vary or alter the usual planning process, to make planning law exemptions and to allow alterations to the operation of, and public access to, the Courts. In some States (including Tasmania, NSW and Victoria), these powers are temporary, with legislated sunset clauses, while others have introduced broad discretionary powers that will continue to be available to be called on after COVID-19 has passed – for example, in Queensland.
Transparency
To date, these powers have been used on the whole to implement the immediate measures necessary to respond to COVID-19 – to shore up food and medical supply chains, prepare for a potential need for new medical centres, allow businesses to operate from home and ensure provision of access to the Courts.
It is important that these measures are transparently and consistently applied and that powers are exercised rationally, proportionately and for a proper purpose, as decisions made now could have long-lasting impacts on communities and the environment. Many people have called the EDO asking questions and raising concerns about ongoing public consultation and government reforms, which communities are struggling to respond to during this significant disruption to our lives. There are concerns about access to justice, particularly in NSW where the Independent Planning Commission is continuing with its assessment of the Narrabri Gas Project without allowing key procedural rights for about 23,000 community members.
EDO lawyers across the country are carefully watching the exercise of these powers and will step in where necessary. For example, we have written to State governments about:
- NSW – to ask the Independent Planning Commission not to hold hearings while the communities affected cannot adequately or meaningfully participate
- Tasmania – to ask the Planning Minister and Attorney-General to hold off on public consultation on major projects and Tribunal reform Bills
- Queensland – to ask the government to exercise emergency powers proportionately and in the public interest.
These are just the first of many steps we will take.
Recovery
As restrictions start to be lifted across the country and our attention turns to what is required for recovery and economic stimulus, we see the focus on planning and environment laws increase. There are questions about the extent to which these powers can be used for economic stimulus by facilitating development.
NSW and Victoria have announced formal arrangements aimed at speeding up assessment processes (eg. the Planning System Acceleration Program and the Building Victoria’s Recovery Taskforce), Tasmania has established an Economic and Social Recovery Advisory Council and has draft major projects legislation under consultation, the WA Act allows powers to be exercised for “recovery” from an emergency and the NT government is amending planning laws to provide small-scale works without planning approvals. The Federal Environment Minister has indicated she will speed up assessments under the national environment law and consider amendments to the EPBC Act prior to the completion of the statutory review which would “prevent unnecessary delays”.
Our national team is tracking trends and working through the critical issues in response to the immense scale and significance of this disruption:
- to ensure continued access to justice, open and transparent decision making,
- that key protections for the environment and the community are not removed
- and that decisions we make now seize the opportunity to recover in a way that puts Australia on a pathway to a safe and stable climate.
We will continue to update our website in the coming weeks.
States and Territories
On this page you will find information about changes to Commonwealth laws and legal processes.
Go here for States and Territories:
Commonwealth
The Federal Parliament has passed laws for budget appropriation but no laws changing legal requirements.
There has been no national legislative response on changes to environmental laws, although Federal Environment Minister Susan Ley has indicated an intention to remove delays under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by:
- Ensuring all assessments in the system are processed by 30 June 2020; and
- Considering introduction of amendments to the EPBC Act prior to the completion of the current statutory review to “prevent unnecessary delays and improve environmental standards”.
A National Communique from the Planning Ministers on Land Use Planning and the COVID-19 Pandemic on 20 April 2020 agrees that:
- Planning systems and the development approvals pipeline in Australia must continue to function during the COVID-19 crisis so that jobs and businesses can be maintained at this critical time and that the system supports economic recovery.
- Changes to planning systems should be on the following principles:
- Decision making in the public interest is a paramount theme in all planning systems and this must continue as a guiding consideration.
- Transparency for stakeholders about changes to systems and particular decisions.
- Decisions made within jurisdictions are consistent, where possible.
- Consideration of the level of public interest in a particular planning change or development proposal.
- Balancing administrative and legal review rights with the need to address the pandemic emergency and to assist community and economic recovery.
- All reasonable effort is made to maintain the usual pace of planning approvals, recognising, as far as practical, community consultation will continue through new forms of communication recognising social distancing requirements.
The communique post-dates many of the amendments to planning legislation and actions taken by States and Territories in response to the COVID-19 pandemic, outlined below.
Courts: The Federal Court and High Court continue to operate. The Federal Court has made directions that all hearings are to be through video or telephone conferencing unless required to be in person. There is no clear provision for hearings to be made public. Hearing procedures appear to be considered on a case by case basis. The High Court is continuing to deliver judgments and special leave applications, including hearings as necessary. It will not be sitting in Canberra or on circuit in April, May or June, with all hearings by video-conferencing. The High Court’s website indicates that hearings are public and audio-visual recordings are available for Full Court hearings.
