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Legislative Assembly for the ACT: 2001 Week 10 Hansard (30 August) . . Page.. 3859 ..

MS TUCKER (continuing):

There has been an ongoing debate in other jurisdictions about the rights of third parties to apply for court orders to achieve environmental outcomes. Environmentalists argue that third parties should have open standing to seek court orders because of the public interest involved. However, some people, generally those within the business sector, believe that this is an unwarranted meddling in the affairs of others and should not be allowed.

The current act allows persons to apply for a court order with leave of the court. Such leave can only be granted if the person can show that they have already requested the authority to take action and that it failed to do so, and that the application is in the public interest. This is still a pretty high bar to get over and is a discouragement for persons to seek court orders.

Given the high costs involved, people are unlikely to seek a court order unless they have good reason to do so. I therefore do not think that the onus should be put on the person to prove a public interest before getting leave of the court to proceed with the application. My amendment therefore reverses the intent of subsection (2) so that persons will automatically be granted leave unless the court is satisfied that the person has not already taken action through the authority or is being frivolous or vexatious.

MR CORBELL (9.32): Mr Speaker, the Labor Party will be supporting this amendment, consistent with our approach that it is important to have the public interest protected in terms of the application of environment protection legislation. When this act was first introduced in 1997 we argued for open standing. We lost on that occasion, we will probably lose tonight, but it is important to argue that any third party has the right to appeal to the court in relation to the application of this act.

The Environment Protection Act is not just about what happens next door, it is not just about what happens across the street from you: it is about what happens in your city, in your area, in the environment in which you live. We think it is a reasonable approach to provide for open standing in those circumstances. It is about protecting the public interest, it is about allowing advocacy organisations or environmental organisations, or indeed any other interested party, to take a matter to court if they believe that there has been some breach of the act or if they want to review certain agreements set in place under the act. So, we think it is worth fighting for. Open standing does protect the public interest and it is important that it is there.

MR SMYTH (Minister for Urban Services, Minister for Business, Tourism and the Arts and Minister for Police and Emergency Services) (9.34): Mr Speaker, the government will be opposing this amendment. This provision is about standing to get the Supreme Court to make an order to stop or prevent contravention of the act. The current test requires the court to refuse leave unless the person has asked the EPA to take action and that the EPA has not provided written confirmation of reasonable action being taken. That is the first step and that is reasonable.

This amendment stands that test on its head-the court must be satisfied that the person has not asked the authority to take action or that the person has asked but has not let reasonable time elapse for the authority to take action. This is inappropriate in an application to the court when either the EPA or the respondent to the order will be represented. The applicant should have to satisfy the court that there is a case for it to

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