An application by the United Nations Special Rapporteur on the Human Rights to a Clean, Healthy and Sustainable Environment to join three Federal Court cases this week has been met with shock and surprise in certain legal and political circles.
Federal Court judges will now decide whether to accept the application to appear as amicus curiae—a friend of the court. This move highlights what I discussed last Friday: the “Trojan horse” of the federal government’s Environment Protection and Biodiversity Conservation (EPBC) Act reforms, which in itself raises questions about the balance of power in environmental litigation.
Environmental groups enjoy significant financial strength, thanks in part to federal legislation. Under the Charities Act 2013, they can seek charitable status, which provides income tax exemption. Registered charities endorsed by the Australian Tax Office may also qualify as Deductible Gift Recipients, allowing donors to claim tax deductions. In both cases, the Australian taxpayer effectively subsidises these organisations, reducing revenue available for government expenditure.
Some environmental NGOs report substantial incomes. WWF Australia disclosed revenue of $52 million in its most recent return to the Australian Charities and Not-for-profits Commission. The Nature Conservation Council of NSW reported nearly $4 million, while the Environmental Defenders Office in Sydney recorded just under $18 million. These are only three examples among many.
By contrast, the forestry sector does not enjoy comparable tax advantages and often lacks the resources to defend litigation. While large corporations dominate the softwood industry, the hardwood sector is characterised by small, usually family-run businesses. If the federal government is serious about maintaining a forestry industry—particularly a native forestry industry—it may need to consider reforms to level the playing field.
One proposal is the introduction of a “business judgment rule” into the EPBC Act. TimberNSW, representing the majority of hardwood businesses in New South Wales, raised the idea in a 2021 Senate submission during the inquiry into the Leadbeater’s Possum case. The rule, similar to that available to company directors under the Corporations Act 2001, would provide a defence where operators had exercised due care and undertaken best-practice measures. It is not a “get out of jail card,” but a recognition that accidents can occur in complex operations despite best endeavours.
Another reform under discussion is the establishment of a statutory right for supply-chain entities to participate in injunction proceedings as amici curiae. This would apply to industries such as gas, coal, critical minerals and forestry, ensuring that commercial interests and Australian jobs can be represented in hearings.
Currently, environmental NGOs obtain standing through common law rights, upheld by the High Court earlier this year. Extending similar rights to businesses would not weaken environmental laws—National Environmental Standards would still apply—but would allow commercial interests to present scientific evidence and counter-narratives in contested cases.
Environmental groups argue that EPBC approval holders already have adequate resources to defend challenges. Industry representatives reject this as a generalisation, noting that disputes often hinge on competing scientific opinions. In such cases, they argue, fairness requires that both sides of the narrative be given a voice.
