The Abbott government's attempt to launch an attack on the legal rights of environmental groups has hit a hurdle, with a committee questioning the grounds for the plan and whether it would even work.
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In a new report, a committee made up of Liberal, Labor, Nationals and Greens MPs has warned the government's attempts to crack down on so-called environmental "lawfare" may have no effect on the number of cases launched and could lead to the "inability of the courts, in at least some cases, to undertake their constitutional role".
It also said the government has given no justification for its plans.
The Senate's scrutiny of bills committee has sought detailed advice from Attorney-General George Brandis on the government's justification for the proposal to repeal a section of Australia's Environment Protection and Biodiversity Conservation Act to try to prevent legal challenges by green groups.
It comes after the House of Representatives on Thursday passed the changes, with Liberal and National MPs decrying what they called "special treatment" for environmental activists.
"We need to have balance. We cannot simply, as the Greens and those opposite that are of the left would like, have us hanging from trees and drinking mung bean soup," Liberal MP Brett Whiteley told the Parliament.
The government wants to scrap section 487 of the Act, a section which allows third party groups such as environment and community groups to appeal environmental approvals for big developments.
Senator Brandis has said the government wants to end "vigilante litigation" by green groups and allow only individuals directly affected by a development, such as landowners, to launch appeals.
The government pushed for the change after the Federal Court set aside the environmental approval for Indian company Adani's Carmichael coal mine after a Queensland environment group successfully highlighted a flaw in the government's assessment of that project.
The six-member scrutiny of bills committee, which has three government and three non-government senators, examines bills to come before Parliament and takes legal advice on their potential implications.
In a report published this week the committee said it was concerned the explanatory memorandum for the bill "does not include any detailed justification for the proposed amendment".
The report noted a 2009 review found the Act had created no difficulties and should be maintained, and that the review had considered whether its powers should in fact be expanded further.
The committee said the protection of Australia's environment was a matter of "established public interest".
It said under the government's proposal there could be cases where ministers were able to breach environment laws without review because groups mounting challenges might not be able to show how their interests were affected in a way that differed to the public at large.
The committee also argued that the proposal might have no effect on the number of cases launched and that courts would instead be forced to spend time examining whether a group had legal standing, rather than if important environment laws had been breached.
"Given that public interest litigation brought by environmental NGOs may in many situations be the only effective practical mechanism for enforcing laws enacted to protect the public interest in the environment, and the possibility that the proposed amendment may re-direct rather than eliminate litigation, the committee seeks detailed advice from the Minister as to why this limitation on the availability of judicial review of decisions under the EPBC Act is justified," the committee said.
Comment was sought from Senator Brandis. While the proposal to change the Act passed lower house on Thursday it is not expected to come before the Senate until next month. The government currently does not have Senate support for the changes.
