Proposed legislation to codify Australia’s emissions reductions targets would give licence to green groups to weaponise the law through courtroom activism.
The Albanese government’s climate legislation will, if passed, unleash a torrent of activist litigation that risks throwing future economic development in this country into doubt.
Last week, Climate Change and Energy Minister Chris Bowen introduced legislation that enshrines the government’s nationally determined contribution to implementing the United Nation’s Paris Climate Agreement, which is to cut carbon emissions by 43 per cent by 2030 and to net zero by 2050.
By legislating a net zero target, the proposed law will give licence to green groups to weaponise the law through courtroom activism, which will further undermine Australia’s economic wellbeing.
Importantly, this is not mere speculation; the precedent has already been established.
In a landmark decision in the United Kingdom this month, the High Court agreed with activist plaintiffs that the British government failed to explain how its policies would achieve emissions targets, and therefore failed to meet its statutory obligations.
It was an extraordinary power-grab from an English court in the land of the common law and the historic protectors of parliamentary sovereignty.
It highlights how deep and pervasive the effects of net zero can be on the law.
Australian courts will be similarly affected by net zero legislation, expanding the scope for activist litigation aimed at delaying and disrupting critical resource projects.
Using legislation to frustrate development is the stated aim of green groups.
As far back as 2011, Greenpeace Australia published a “funding proposal for the anti-coal movement”.
The proposal featured ideas on how litigation can “stop projects outright, or can delay them in order to buy time to build a much stronger movement and powerful public campaigns.”
Greenpeace also suggested using litigation to “increase costs, raise investor uncertainty, and create a powerful platform for public campaigning.”
These tactics have been very effective over the past two decades.
Institute of Public Affairs research estimates that between 2000 and 2020, projects with a combined value of $65 billion have been targeted for disruption and cancelation by activist litigation.
This has been possible because of an unusual feature in the Environment Protection and Biodiversity Conservation Act.
Under section 487 of that Act, a special legal privilege is granted to green groups to challenge ministerial approval of development projects.
The section 487 privilege is inconsistent with the usual common law rule that a person can only bring an action to a court if they possess a direct or material interest in a matter.
But the only interest green groups have in challenging a resource development project is that they do not like them and would prefer they did not occur.
By enabling this activist litigation, successive governments have made the courts complicit in destructive political campaigns.
To say this is an inappropriate role for our courts is an understatement.
Special legal privileges for activists to weaponise vague laws against their political opponents is a fundamental risk to the rule of law.
Even before net zero is legislated some activist courts have attempted to claim the authority to frivolously block projects.
In a decision handed down last year, Justice Bromberg of the Federal Court created a novel rule that a federal environment minister owed a duty of care to those aged under 18 to avoid causing them personal injury as a consequence of increased carbon dioxide emissions.
Wisely, Bromberg’s ruling was swept aside on appeal on the grounds that the duty would have been “incoherent and inconsistent” with the existing legislation.
But the legislative landscape is on the precipice of fundamentally changing.
Labor’s Climate Change Bill is a major interpretative document that may significantly affect how approvals under the EPBC Act are treated by the courts.
Section 5 of the Administrative Decisions (Judicial Review) Act allows a person to challenge a ministerial decision as an improper exercise of power if the minister fails to “to take a relevant consideration into account in the exercise of a power”.
Labor’s climate legislation paves the way for activist groups to argue in court that a minister has failed to consider whether or not a project is consistent with the terms of the Paris Climate Agreement.
Judges will now have to consider whether a minister has adequately considered whether a project upholds the principles embedded in the Paris Climate Agreement, such as vague notions of “climate integrity” when contemplating approvals.
The lawfulness of approvals will be jeopardised if they fail to pay sufficient tribute to “Mother Earth”, “climate justice”, “empowerment of women”, and “international equity”, all listed in the preamble to the Paris Climate Agreement.
Because it is so subjective, Justice Bromberg’s rule would effectively be codified into legislation if Labor’s legislation passes.
This puts at risk every single proposed resource development project in Australia.