Open standing and merits review
This fact sheet supports the implementation of the recommendations from the Final Report of the Scientific Inquiry into Hydraulic Fracturing in the Northern Territory.
The Implementation Plan can be found at hydraulicfracturingnt.nt.gov.au
The Final Report of the Inquiry can be found at frackinginquiry.nt.gov.au
What does the Report say?
The Inquiry recommended that decision-makers be made more accountable by broadening the current review processes to enable those directly and indirectly affected by decisions.
The Final Report recommends that prior to the grant of any further exploration approvals for the drilling of petroleum wells or hydraulic fracturing, the Petroleum Act 1984 and Petroleum (Environment) Regulations 2016 be amended to allow open standing to challenge administrative decisions (recommendation 14.23).
The Report also recommends that prior to the grant of any further production approvals, merits review be available in relation to decisions under the Petroleum Act and Petroleum (Environment) Regulations (recommendation 14.24) for the following third parties:
- proponents (that is, gas exploration and production companies) seeking a permit, approval, application, licence or permission to engage in onshore shale gas activity
- persons who are directly or indirectly affected by the decisions
- members of an organised environmental, community or industry group
- Aboriginal Land Councils
- registered Native Title Prescribed Bodies Corporate and registered claimants under the Native Title Act
- local government bodies
- persons who have a genuine and valid objection during any assessment or approval process.
The Report recommends that an independent body, such as the Northern Territory Civil and Administrative Tribunal, be given jurisdiction to hear merit review proceedings in relation to any onshore shale gas industry (recommendation 14.24).
What is administrative review?
Administrative review is the process by which decisions by the Government, or Government officials, can be reviewed and possibly changed.
There are two types of administrative reviews: judicial review and merits review.
Judicial review is a common law right. This means the law automatically recognises that certain people can seek the review of a government decision. Judicial review is undertaken by a Court. The Court considers whether a decision made by a government official obeyed the law and followed the correct process.
Merits review is a statutory right. This means that it is only available where legislation specifically states that decisions can be reviewed on their merits. Merits review considers the facts, the law and policy aspects of the decision in order to determine whether the correct and preferable decision was made given all the information available. In the Northern Territory, the Northern Territory Civil and Administrative Tribunal has been established to undertake merit reviews.
What is standing?
Standing is the term used to identify who in the community has the right to seek an administrative review.
Standing can be narrow (e.g. limited to an applicant for a government licence) or broad (e.g. any person who is directly or indirectly affected by the decision). ‘Open standing’ is the term used when any person is allowed to seek a review of a decision made under a particular piece of legislation.
What is Government’s response?
The Northern Territory Government supports recommendations 14.23 and 14.24 of the Final Report.
The government made the regulatory changes in March 2019 to allow open standing to challenge administrative decisions under the Petroleum Act 1984 and Petroleum (Environment) Regulations 2016, including the approval of Environment Management Plans and petroleum exploration permits.
The government will amend the Petroleum Act 1984 to allow merits review and allow standing to relevant third parties by 2021 as per the government’s implementation plan.