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.
Our lawyers Revel Pointon and Nicole Sommer have developed a set of principles by which to assess the changes that have been made. The table below also gives an updated summary of changes by jurisdiction.
This article below looks at law reform in the Commonwealth, states and territories since 12 March 2020.
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 not passed laws amending how development related environmental impacts should be assessed or approved since lock down commenced (12 March 2020). Two Bills have been introduced impacting on environmental regulation and two Declarations have been made, listed below.
While there has been no national legislative response on changes to environmental laws, 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.
The Great Barrier Reef Marine Park Amendment (Coronavirus Economic Response Package) Bill 2020 was introduced on 14 May 2020 – to amend the Great Barrier Reef Marine Park Act 1975 (the GBRMP Act) to effectively waive the requirement for Great Barrier Reef Marine Park (Marine Park) permission holders to remit the environmental management charge (EMC) to the Great Barrier Reef Marine Park Authority (the Authority) for the period 1 January 2020 to 31 March 2020. This is intended to provide financial relief to the Great Barrier Reef tourism industry and other relevant permission holders impacted by the COVID-19 (coronavirus) pandemic.
Stimulus initiatives and advisory bodies
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, including by former Victorian Court of Appeal Judge Anthony Whealy, as to the real or perceived conflicts of interest held by members of the Commission, and lack of strong oversight mechanisms or legislative accountability.
Non-COVID related environmental regulation reforms
- Aboriginal Land Rights (Northern Territory) Amendment (Jabiru) Bill 2020 – Introduced 13 May 2020, will support the traditional owners of Jabiru, the Mirarr people, to lead the transition of Jabiru from a mining town to a tourism town and regional service centre via a new township lease. With the closure of the nearby Ranger Uranium Mine by January 2021 and expiry of existing Jabiru leasing arrangements in June 2021, the Mirarr traditional owners have developed a Masterplan setting out their vision for Jabiru as a world leading ecologically sustainable, economically and socially vibrant community where traditional Aboriginal culture, the local economy, the tourist industry and the natural environment flourish. The Bill makes a minor consequential amendment to the Environment Protection and Biodiversity Conservation Act 1999, to ensure people will be able to use or develop land in Jabiru that is subleased to them by the head lessee.
- Declaration of an approved wildlife trade operation for the harvest and commercial export of wallaby products from Tasmania, 12 May 2020, Minister Ley, under s303FR(1) of the EPBC Act: The wildlife trade operation relates to the processing of meat, skins and fur (fibre) only from Bennett’s Wallaby (Macropus rufogriseus) and Tasmanian Pademelon (Thylogale billardierii)
- Declaration of an Approved Wildlife Trade Operation (Existing Stocks) for Jardini Pty Ltd Lungfish, Queensland, 4 May 2020– Delegate of Minister Ley, under s303FN(3), (4) and (5) of the EPBC Act – export of lungfish from Queensland, subject to conditions.
- Declaration of an Approved Wildlife Trade Operation – NSW Southern Cross Botanicals Beach-cast Sea Kelp Fishery, 9 April 2020, Delegate of Minister Ley, under s303FN of the EPBC Act – harvesting of specimens that are or are derived from marine vegetation, taken in the New South Wales Southern Cross Botanicals Beach-cast Sea Kelp Fishery, subject to conditions.
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. It is possible to apply to witness an Online Hearing. 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.
