By Peter Burnett
“Off with her head”, said the Queen of Hearts to Alice in Wonderland, when Alice couldn’t read the values of some face-down playing cards. The word of the Queen of Hearts was law. Not a good law, actually.
In the real world, ‘Bad King John’ of England (1166-1216) wanted his word to be law as well. While he might not have been quite so capricious as the Queen of Hearts, he was arbitrary and unjust enough to drive his barons to rebellion.
And that rebellion was settled by a set of rules called the Magna Carta in 1215.
While the Magna Carta is best known for establishing the mother of Parliaments and guaranteeing trial by jury (at least for ‘free men’), it also contained a number of guarantees against arbitrary action by the King and his officials — in other words, by government.
For example, King John guaranteed not to take anyone’s corn or chattels without payment and not to appoint incompetent or corrupt judges and officials.
As a result, the Magna Carta is also known for establishing the principle that government is not above the law and thus cannot behave in arbitrary and unjust ways.
This is the foundational principle of administrative law.
Now some believe ‘law’ is dry and boring, with the very mention of administrative law enough to send you to sleep.
I’m here to convince you that administrative law is far too important to be boring, though I will concede that it can be dry and tedious in the detail. In his book The Rule of Law, one of the great modern British judges, (Lord) Tom Bingham, gives the example par excellence of a tedious regulation:
Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations. (!!)
And administrative law certainly has failings, as we shall see.
What has this got to do with the environment?
How is this relevant to the environment?
Anyone who has followed environmental issues through the courts will know that many court cases concerning the environment turn not on environment-specific principles (such as precaution or intergenerational equity), but on general principles of administrative law.
One such principle is that decision-makers should not be biased, or even appear biased.
A recent, if extreme, example of an environmental case involving that principle concerned the proposed extension to New Acland Coal’s mine near Oakey, Queensland.
This case has a history of appeals and re-hearings too long to recount, but in brief, an environmental assessment was done and a draft approval issued. However, because there were objections raised, the case was referred to the Land Court of Queensland, which had the role of making non-binding recommendations to the Minister for Natural Resources.
The key point for our purposes is that when the case eventually reached the High Court, they sent it back to the Queensland Land Court for a third hearing. This unusual outcome was required because the first and second hearings were affected by the appearance of bias, rendering both hearings invalid.
In the first hearing, the judge had apparently been deeply offended by a newspaper article on the mine extension, raising the possibility that his subsequent decision to recommend against approving the development might have been biased by his taking offence, while the reasoning of the judge in the second hearing became ‘infected’ by the apprehended bias of the first because she adopted some of his findings (at the direction of one of the intermediate appeal courts).
The High Court’s decision was hailed by the Environmental Defender’s Office as a major victory, and in one sense it is. High standards of decision-making have been upheld.
Yet the case also highlights the process-heavy downside of administrative law. Even if the third hearing is finalised without further appeal, there will have been a total of seven court hearings and a decisional timeframe spanning nine years and counting.
And we still don’t know whether the mine will be approved!
Of course, this is grist to the mill to industry and politicians running a campaign against ‘lawfare and green tape’, but the delays are more due to poor regulatory design than to administrative law itself.
A new line of attack
One feature of administrative law is that although its substantive principles are relatively constant, governments provide new ways to apply those principles by passing a constant stream of new laws.
Take for example the current challenge by the Environment Centre of the Northern Territory (ECNT) to the $21 million grant by Minister for Resources Keith Pitt to Imperial Oil and Gas, to expedite gas exploration activities in the Beetaloo Basin in the Northern Territory.
In the past, it has not been easy to bring legal challenges to government decisions to give money away. Some recent High Court decisions and federal legislation have changed this.
For example, since 2013, federal government grants must comply with the Public Governance, Performance and Accountability Act, which requires, among other things, that the minister making the grant be ‘satisfied, after making reasonable inquiries, that the expenditure would be a proper use of [public] money’.
A ‘proper’ use of money is defined in the Act as one that is ‘efficient, effective, economical and ethical’.
ECNT’s argument is that Minister Pitt committed an (administrative) error of law by failing to make enquiries about the climate risks associated with the development of the Beetaloo Basin, as well as the economic risks of that development as the world transitions to a zero carbon economy.
As far as I can tell this is the first time this line of attack has been used, although the Beechworth Lawn Tennis Club, which is challenging the ‘Sports Rorts’ grants made by the Australian Sports Commission, may well be using similar arguments. (Did I hear you mention ‘car parks’ as well?)
Boring in parts, but definitely useful
So, there you have it. While aspects of administrative law can be boring, overall it is far too useful in securing good environmental decisions to be ignored.
It does however have its problems, as the tortured and scandalously expensive chain of decisions in the New Acland Coal case show.
As a result, one of the challenges of environmental reform, beyond saving the environment of course, is to design decision-making processes that are not only fair and effective, but efficient as well.