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University of New South Wales Law Journal Student Series |
GLOBAL AND LOCAL ASPIRATIONS IN AUSTRALIAN CLIMATE LAW
ENRICO MAINAS
I INTRODUCTION
Australia’s rate of carbon pollution is the highest per capita amongst all developed nations.[1] Like most nations, Australia is a party to the Paris Agreement to the United Nations Framework Convention on Climate Change (‘Paris Agreement’)[2] and under it has established a Nationally Determined Contribution (‘NDC’) committed to the reduction of greenhouse gas (‘GHG’) emissions to 43% below 2005 levels by 2030, and net zero emissions by 2050.[3] This represents Australia’s contribution to the Paris Agreement’s commitment to limit the global temperature increase to well below 2°C above pre-industrial levels (‘Paris temperature goal’).[4]
Part II of this essay will discuss the initial difficulties in enforcing these obligations. Global and community interests lie in equal measure at the forefront of climate action. Part III will explore these concerns as they arise through different areas of law, including anti-discrimination, planning law and corporations law. Each area approaches climate concerns differently: discrimination law connects climate harms with the historical oppression of Australia’s Indigenous peoples; planning law relies on the discretionary interpretation of environmental protection principles; corporations law finds climate risks relevant to directors’ duties of care and regulations surrounding risk disclosure. The contributions of these areas to Australia’s climate response are varied and depend to different degrees on how explicitly climate goals are embedded in their approaches.
Strengthening these areas will improve public and private decision-making so that less litigation is needed. An effective climate response is dependent on non-state actors making decisions informed by scientific evidence and community consultation. Common to all of these areas is their reliance on expert perspectives, both globally and locally. Part IV will discuss the utility of research networks and community consultation in delivering knowledge in equal measure to decision-making that concerns climate law. This allows responses to climate change to harmonise at first instance with international climate goals, and in turn, can prevent them from impacting negatively on the rights of those most vulnerable to climate harms, which are often Indigenous communities.[5] Corporate decision-making in line with these concerns is less likely to produce climate-adverse projects. Taken together, these approaches to climate law offer a proactive engagement with climate risks, the Paris temperature goal, the NDC, and those members of the community with the highest stake in the consequences of climate change.
II ENFORCING AUSTRALIA’S INTERNATIONAL LAW OBLIGATIONS
A Departure from Enforcement in the Paris Agreement
The shift from the Kyoto Protocol of the United Nations Framework Convention on Climate Change (‘Kyoto Protocol’)[6] to the Paris Agreement is often characterised as a shift from a ‘command and control’ model in international climate law to one more focused on ‘soft law’ and on signatories enforcing their own compliance through their self-imposed NDCs.[7] The Kyoto Protocol represents a centralised model of an international climate regime.[8] Its emissions reductions targets were binding on member states, determined through negotiation and preserved in the terms of the treaty itself.[9] Compliance with these targets was reviewed by a specialised body.[10]
The Paris Agreement evolved, in part, from an acknowledgement of the practical difficulties of carrying out centralised enforcement at a global scale.[11] Its shift away from enforcement to a more ‘managerial’ approach sought to facilitate transparency and proactivity as to each state’s implementation of climate targets, rather than the actual content of those targets.[12] As put by Jutta Brunnée, ‘the Paris Agreement requires parties to have an NDC, but does not render their content obligatory’.[13] Parties need only ‘pursue’ domestic mitigation measures and ‘prepare, communicate and maintain’ NDCs.[14]
B Statutory Rights and Climate Justice
Though the Paris Agreement contains no mechanism to enforce NDCs, domestic litigation enables the measures taken by member states to be scrutinised and altered, with reference to that state’s NDC, the Paris temperature goal, and the scientific evidence on which those benchmarks are based. This has tended to occur as an action for a breach by the state of certain statutory or constitutional rights.
The case of Urgenda Foundation v The Netherlands (‘Urgenda’)[15] is considered a bedrock case for the linkage between human rights and climate litigation.[16] The plaintiffs in Urgenda successfully argued that the Dutch government’s climate policy was insufficient to the extent that it breached its duty of care under the Dutch Civil Code and rights under the European Convention of Human Rights (‘EHCR’).[17] The government, losing their appeal in the Supreme Court, was required to limit greenhouse gas emissions to 25% below 1990 levels by 2020, on the basis that their inaction amounted to breaches of articles 2 (the right to life) and 8 (the right to health and respect for private and family life) of the EHCR.[18] Similarly, in Neubauer v Germany,[19] the German Constitutional Court found breaches of fundamental rights (enshrined in the German Constitution and the Basic Law for the Federal Republic of Germany (‘Basic Law’)) due to the failure of the government to set sufficient emissions reduction targets.[20]
C Disadvantages in Australia
Urgenda inspired interest in rights-based climate litigation worldwide, including in Australia.[21] Australia, however, has certain disadvantages in that it has no bill of rights, nor any right to life, health or the environment enshrined in its Constitution.[22] Only in 2022 did Australia pass federal legislation dedicated specifically to climate change, being the Climate Change Act 2022 (Cth) (‘Climate Change Act’). The Climate Change Act codifies into legislation Australia’s commitment under its NDC to reduce its emissions by 43% in 2030 and achieve net zero emissions by 2050.[23] However, it does not provide any specific measures or pathways for achieving these targets, providing a ‘framework for action’ rather than a regulatory strategy.[24]
In this respect, the Climate Change Act is modelled consistently with the United Kingdom’s (‘UK’) Climate Change Act 2008 (UK) (‘UK Climate Act’).[25] In the UK case of R (Plan B Earth) v Prime Minister,[26] the plaintiffs asserted that the government breached certain articles of the EHCR (incorporated into the Human Rights Act 1998 (UK)) due to their unambitious GHG emissions targets.[27] This is essentially the UK equivalent of the same action won by the plaintiffs in Neubauer. Here, however, the High Court held that the claim was not valid, as an administrative ‘framework’ dedicated to combatting climate threats already existed in the form of the UK Climate Act.[28] Absent any identifiable breach of statutory obligation under that Act, the Court confirmed that it was beyond their jurisdiction to evaluate the ‘constantly evolving’ framework of policies and targets adopted under that Act.[29]
In short, Australian litigants may be hindered by having to rely on a ‘framework’ Climate Change Act – specific enough in its coverage of climate obligations to prevent interference from alternate statutes, but general enough that a court will be unable to pinpoint any actionable breach without straying into impermissible policy review. Further, Australia lacks any of the enshrined rights that enabled the success of the action in Neubauer. Australia has no federal human rights legislation. While some states have enacted human rights legislation,[30] only in the Australian Capital Territory can a cause of action be grounded in a breach of human rights.[31] In all other jurisdictions, any action in human rights must be paired with some other action.[32] None provide access to monetary damages.[33]
The majority of treaties to which Australia is a signatory have not been adopted into legislation.[34] This means that findings by international treaty bodies are not domestically enforceable. For example, the United Nations Human Rights Committee (‘UNHRC’) recently concluded that Australia’s failure to mitigate and adequately support adaptation to climate change breached the rights of private life, family, home and culture held by Indigenous residents of the Torres Strait Islands.[35] The UNHRC determined that Australia was obligated to compensate the affected residents, consult with Indigenous communities, and actively protect their human rights through mitigation and offset measures.[36] While the Australian Government, as a party to the International Covenant on Civil and Political Rights,[37] has accepted an obligation to comply with the UNHRC’s requests, that obligation is not enforceable by its domestic courts.[38] As such, the Australian Government is understood to be ‘considering’ the UNHRC’s decision.[39]
III FORMS OF CLIMATE LAW
A Anti-Discrimination Law
1 Disproportionate Impacts of Climate Harms
One exception to the tendency not to legislate international treaty obligations is Australia’s Racial Discrimination Act 1975 (Cth), which explicitly incorporates the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’).[40] Beth Goldblatt demonstrates that this can provide grounds for racial discrimination claims on the basis that certain social and economic rights are being denied due to the state’s failure to mitigate climate harms.[41] It is well-established that disadvantaged social groups are more susceptible to damages caused by climate hazards, including (and brought to bear by Billy v Australia) Indigenous communities.[42]
One way this disadvantage can manifest is in a higher vulnerability to the effects of extreme heat. Beth Goldblatt refers to the example of Moree, a regional NSW town in which the socioeconomic disadvantage suffered by its Aboriginal residents causes them to have less access to local cooling and aquatic facilities.[43] These factors also interact with Aboriginal discrimination in Australia’s incarceration statistics. For example, Roebourne Regional Prison in Western Australia has been the subject of recent media attention for the inhumane treatment of its detainees.[44] With no air-conditioning in its cells (though this remedy was finally announced late last year),[45] temperatures in Roebourne have been recorded to exceed 50 degrees Celsius.[46] Human Rights Watch condemned Roebourne as indicative of the broader failure of successive Australian governments to address ongoing issues of Aboriginal oppression.[47] To date, 90% of Roebourne’s detainees identify as Indigenous.[48]
2 Anti-Discrimination Strategy
The suffering in the above examples is not brought about by any (explicitly) racially discriminatory law or policy. Rather, it is the high price of entry into facilities, and the high rates of Aboriginal incarceration, that cause climate harms to be suffered disproportionately by Aboriginal people in Moree and Roebourne, respectively. Australian anti-discrimination law recognises these indirect forms of discrimination, articulated by Goldblatt as ‘where a seemingly neutral measure has a less favourable impact on a particular group that is seen as deserving of protection’.[49] The ICERD provides parameters for the kinds of rights that this discrimination could be found to breach, including rights to ‘public health’, ‘equal participation in cultural activities’ and ‘access to any place or service intended for use by the general public’.[50]
This permits a wide range of evidence to be used to substantiate the basis of a claim for a breach of anti-discrimination law. Goldblatt refers to comparing fees of the community centre to fees for similar facilities in NSW, establishing the unreasonableness of the high fees, the scarcity of ‘cool’ spots, and the historical context of Aboriginal disadvantage in Moree (with particular linkage to its pool), demonstrating the enduring link between race and poverty, rendering the exclusion of Aboriginal residents unreasonable.[51]
Applying this strategy to Roebourne, unreasonableness can be established through evidence that reports by the Office of the Inspector of Custodial Services referred repeatedly and specifically to the need to install air-conditioning in each cell.[52] Such findings were evident and published seven years prior to the state declaring that the installation would occur.[53] And Roebourne’s colonial history also becomes relevant; the subjugation and exploitation of Aboriginal people in the construction of the original gaol,[54] and the disproportionate and overtly racist sentencing practices that imprisoned of many of its detainees,[55] connect race and incarceration. Evidence then linking climate change with the effects of extreme heat suffered in incarceration would complete the necessary connections between the harms suffered and the human rights and climate obligations being breached at a federal and international level.
It is beyond the scope of this essay to determine whether the claim in Billy v Australia might have been made successfully on the basis of anti-discrimination legislation. However, the exploration of this strategy reveals a close link between breaches of human rights at a global level, and specific measures taken (or not taken) by the state at a community and local level. It is likely, if a domestic court were to consider an anti-discrimination claim by the plaintiffs, that the ruling of the UNHRC would weigh significantly on their determination.[56] And, as much as the plaintiffs’ claims lay in general GHG emissions obligations, it also lay in specific measures that the state failed to take, such as the building of seawalls.[57] Relatedly, in the pending Federal Court case of Pabai Pabai v The Commonwealth,[58] the distinctiveness and significance of Torres Strait Islander cultural heritage and sacred sites are a significant factor in the applicants’ submissions accusing the Commonwealth of breaching of their duty of care.[59] In a climate context, anti-discrimination law recognises the reality that Indigenous communities suffer climate harms at an egregiously disproportionate rate, synthesising rights under the ICERD with specific instances of climate damage.
B Planning Law
Planning and development legal regimes throughout Australia offer a different approach to climate law in a way that blends local and global concerns. Requiring ‘development’ or an ‘activity’ to occur in order to activate its protections and procedures, planning law is naturally limited in its ability address climate harms at large.[60] However, where so much of climate harms and remedies intersect with physical protection measures (seawalls were mentioned earlier), public facilities and, especially, major projects, planning law offers a significant range of tools that meaningfully impact Australia’s climate ambitions when deployed in harmony with international laws and obligations.
1 Ecologically Sustainable Development (‘ESD’)
The New South Wales (‘NSW’) statutory planning regime directly enshrines principles of ESD that originate in international law. Two principles which have played a key role in climate change action through planning decisions are the precautionary principle and the principle of inter-generational equity.[61] The precautionary principle arose conceptually in Germany in the 1970s and gained mainstream international recognition in the 1992 United Nations Conference on Environment and Development, after which it was enacted in further UN policies and promulgated into many states’ domestic laws and policies, including the European Union and the United States.[62] The form of the principle in NSW is ‘if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation’.[63] Its effect in planning decisions is that, where evidence of the risk of serious and irreversible environmental impacts is uncertain, the decision-maker must treat that risk as certain.[64] Its positioning as a tool to prevent ‘postponement’ of protection measures and requirement for ‘serious and irreversible’ impacts might indicate that this is a relatively weak construction of the principle.[65] However, its effect of shifting the burden of proof, so that the proponent must establish that the environmental risks are negligible or non-existent, make it a strong evidentiary direction.[66]
The origin of the principle of intergenerational equity is not so singular, though references to the interests of future generations appear throughout international law.[67] The United Nations Framework Convention on Climate Change (‘UNFCCC’), for example, requires parties to ‘protect the climate system for the benefit of present and future generations of humankind’.[68] Like the precautionary principle, this principle is ratified in legislation as part of ESD, which in turn have been held in case law be captured by the statutory public interest consideration in planning decision-making.[69]
2 Strengths and Weaknesses in the Common Law
The contribution of planning law to Australia’s climate response is exemplified in the cases of Gray v Minister for Planning (‘Gray’)[70] and Gloucester Resources Ltd v Minister for Planning (‘Rocky Hill’). In Gray, Pain J synthesised the precautionary principle and inter-generational equity to deny approval for a thermal coal mine as evidence had not been presented about the potential of the climate risk. Pain J held that GHG emissions, including scope 3 emissions (that is, emissions made downstream from the mine itself, such as by purchasers of coal from the mine), were captured by ESD.[71] Here the appropriate application of the precautionary principle was coloured by the principle of inter-generational equity, requiring ‘knowledge of impacts which are cumulative, on going and long term’.[72]
This laid the foundation for the landmark decision in Rocky Hill, notable for Preston CJ’s wide casting of ESD principles, his Honour’s judgment making reference to Australia’s obligations under the Paris Agreement,[73] and Australia’s maximum carbon budget assuming that the Paris temperature goal is to be met.[74] Consent for a proposed mine was refused on the basis of its untenable contribution to GHG emissions, including Scope 3 emissions.[75] Preston CJ, applying the reasoning in Urgenda, cemented GHG emissions within ESD as a mandatory consideration for the decision-maker, emphasising a clear causation between emissions and climate change harms, and nullifying the argument that the denial of a single mine cannot be said to impact global emissions.[76]
While NSW legislation proved to be effective enough in Gray and Rocky Hill, researchers highlight that relying on administrative discretion and judicial interpretation can prove problematic.[77] The Court of Appeal in Minister for Planning v Walker,[78] for example, while emphasising the importance of considering ESD for a development approval,[79] held that a failure to consider ESD could not in principle void the decision.[80]
In Friends of the Gelorup Corridor Inc v Minister for the Environment and Water (‘Gelorup’),[81] a majority in the Federal Court queried whether ‘postponing a measure’ according to the precautionary principle (constructed similarly in federal statute as it is in NSW) actually captured decisions to grant or refuse development consents, or set conditions.[82] Previous decisions in NSW had no issue applying the precautionary principle in this way,[83] and neither did Feutrill J in Gelorup, whose reasoning differed slightly from the majority, despite reaching the same conclusion.[84] Concerns have been voiced that this more restrictive approach may influence state courts and introduce rifts between planning decisions and the precautionary principle.[85]
In Victoria, Marion Manifold and Brad Jessup highlight disparity between decision-makers’ treatments of environmental risks as required by relevant planning instruments. Some judicial officers satisfied these consideration requirements with only cursory or passing references to those types of risk.[86] The authors encountered significant variation in how expert evidence is treated by government departments, local councils, tribunal members and Ministers.[87]
3 The Need for Dedicated Legislation
The integration by Australian courts of GHG emissions and the Paris temperature goal into statutory planning considerations has made significant strides in combatting climate harms. This has supported the interlinked objectives, discussed earlier, of upholding social equity and human rights.[88] It might be no coincidence that the only climate litigation based on human rights legislation to have taken place in Australia to date was an objection to a planning decision.[89] In Waratah Coal Pty Ltd v Youth Verdict Ltd (‘Waratah Coal’),[90] the Queensland Land Court held that human rights considerations apply to the court in its capacity to hear objections to development or environmental authority applications.[91] An applicant would therefore be entitled to relief should the Land Court fail to make a recommendation compatible with human rights.[92]
Waratah Coal may represent a positive outcome in the context of mitigating climate harms, but again relied on judicial discretion in bringing certain rights within the purview of planning law. R v Prime Minister, discussed earlier, exposes the potential fragilities of Australia’s ‘framework’ Climate Change Act, particularly as we lack the statutory rights that anchored the climate statute claim in Neubauer. It is therefore unsurprising that scholars have called for legislation that explicitly requires GHG emissions to form a paramount consideration in administrative decision-making.[93]
Danny Noonan suggests that statute comparable to the United States’ (‘US’) Clean Air Act 1970 would enhance the enforcement of climate standards.[94] In the landmark judgment of Massachusetts v EPA,[95] the US Supreme Court confirmed that GHG emissions were ‘air pollutants’ under this Act, and therefore required management by the Environmental Protection Agency.[96] In a planning context, no NSW statute integrates strategic climate risk assessment against Australia’s NDCs or other standard,[97] instead relying on courts (such as in Rocky Hill) to work these into the definitions of planning considerations and public interests.
Put by Manifold and Jessup, the takeaway from ‘pro-climate’ planning decisions is not the success that a coal mine was denied approval, but the failure that the question of its approval consumed public resources for so long.[98] In making this statement, the authors were referring to a decision that took eight years.[99] The length of time from application to denial in Rocky Hill was a little over six years.[100] Inefficiencies in legal systems contribute to fears of entering a climate ‘doom loop’ – wherein the misapplication of resources in preventing climate harms causes more harms to occur, which require more resources devoted to restitution and adaptation, leaving fewer resources for prevention, causing more harm and loss, leaving even fewer resources for prevention, and so on.[101]
4 Conciliation
Despite burgeoning developments in climate litigation worldwide, Brunnée points out that ‘the bulk of international legal argumentation unfolds in the course of interstate diplomacy, UN practice, treaty negotiations, and interactions under the auspices of treaties and codification projects and in a growing range of state and non-state arenas’.[102] Conciliation plays a similarly key role in Australian planning regimes.[103] Noonan identifies that, in the planning regime, judicial review can be preoccupied with procedure and the appropriate exercise of discretion, rather than the substance of the protections, harms and interests at stake.[104] Goldblatt, too, emphasises the importance of using anti-discrimination evidence in mandatory conciliation. This process can be more conducive to open, productive dialogue, producing tailored and nuanced solutions, as opposed to the inefficiency and rigidity of the courts, towards which many Indigenous communities may harbour justifiable feelings of fear and distrust.[105]
Conciliation is only one example of an approach to climate law geared towards collaboration and proactive mitigation, rather than enforcement. But it is an example that speaks to the broader point that providing effective means for aggrieved communities to demand action and obtain restitution, while important, is only relevant where Australia’s climate commitments have been hindered or deviated from, and essential rights breached as a result. Climate harms will not be effectively prevented if this is the only form of redress offered by Australia’s legal framework. Litigation cannot be the focal point – rather, its value is in providing a surety of consequences so that ‘softer’ mechanisms can do their best work. Or as summarised by Rosalind Croucher, President of the Australian Human Rights Commission, discussing a national human rights Act: ‘[W]ithout [the possibility of court proceedings], you don’t get the accountability leverage you need for improving decision making. But litigation is not the point. It is the positive duty on public authorities to get it right in the first place.’[106]
C Corporate Disclosure
Key to all of the actions discussed so far is the role of expert evidence. Manifold and Jessup emphasise the importance of, not only ensuring scientific evidence is admitted and properly considered in proceedings, but developing a practice and culture where that evidence is valued and able to be understood.[107] This is a responsibility that lies not only with government decision-makers, but also with emitters, project proponents and other non-state actors. Half of all industrial GHG emissions can be traced to the top 100 carbon emitters, some holding more capital than entire UN member states.[108] Australia’s corporations law framework provides examples of how ‘hard’ and ‘soft’ law can operate in tandem to encourage better practices and lift the standards of how such entities operate.
Much commentary has arisen in recent years on the potential for climate concerns to be enforced through negligence actions against company directors.[109] Section 180(1) of the Corporations Act (Cth) imposes a statutory duty of care, holding directors to the standard of a reasonable director occupying the director’s office, in the director’s circumstances. Case law determining the threshold for breach of this duty of care has applied the construction in common law negligence of a failure to address ‘foreseeable risks’.[110] Analysing this duty, Noel Hutley and Sebastian Hartford-Davis consider that the risks associated with climate change have sufficiently absorbed into common knowledge such that a failure of a director to address climate risks may fall foul of their statutory duty of care.[111] This action goes directly to the individual liability of corporate decision-makers, rather than corporations themselves. To repurpose Emeritus Professor Croucher’s quote, personal liability under the Corporations Act provides the ‘accountability leverage’ that can enliven the positive duty on company directors to ‘get it right in the first place’.[112]
If climate litigation under section 180(1) provides the accountability leverage, it is regulatory disclosure obligations that can engineer the positive duty to comply. This is because a duty to disclose climate risks requires those risks to be analysed and understood by the company and its directors, with a view towards implementing policies for their mitigation (to be disclosed as well).[113] The Recommendations of the Task Force on Climate-Related Financial Disclosures (‘TCFD Recommendations’) are one such source of disclosure standards, published by an international board comprising of 32 G20 member states.[114] In Australia, the TCFD Recommendations are adopted by the Australian Securities Exchange Corporate Governance Council’s Principles and Recommendations (‘ASX Principles’),[115] with which publicly listed companies must comply or provide explanation for why they need not comply.[116]
An analysis in compliance with the TCFD Recommendations would be holistic – covering a company’s governance, strategy, risk management processes, and what metrics and targets are used to define those risks.[117] The TCFD Recommendations also explicitly incorporate the Paris temperature goal, as well as the NDC of the state within which the company in question is located.[118] This target is the benchmark by which companies are recommended to measure their forecasting analysis.[119] A distinguishing feature of the TCFD Recommendations is the recommendation to undertake ‘forward-looking’ scenario analysis, a form of risk analysis that embraces conditions of uncertainty and timescales (up to multiple decades) that exceed what is understood to comprise ‘business-as-usual’ risk analysis (concerned usually with timeframes of 1–5 years).[120]
The TCFD Recommendations’ comprehensive detail of methodology, and reference to international standards, offer a ‘soft law’ antidote to the ‘hard law’ threat of the statutory duty of care, which is rich in consequences but lacking in standards, procedures and substance for its compliance.[121] Because, while ‘climate harms’ in general may be foreseeable in a common-sense way, knowing how these will manifest for a particular company, what kind of financial, operational and reputational consequences they may carry, and how best to prevent these consequences from manifesting, relies on technical and often scientific expertise.[122] The potential to litigate against directors who might fail to harness this expertise is not the true value of the regime, particularly where, absent guidance such as the TCFD Recommendations, the duty of care could be fairly accused of being ambiguous in regards to climate-related obligations.[123] The true value is the opportunity for regulatory guidance to homogenise the standard of the ‘reasonable’ director according to global climate standards, so that directors can be confident of how they should address climate risks, allowing companies to make the best use of the information available.[124]
The usefulness of this model is confirmed by empirical research finding that companies that exhibit high levels of environmental disclosure also record better financial performance.[125] For every kind of climate risk set out in the TCFD Recommendations, there is also an opportunity of which a well-informed company may be positioned to take advantage.[126] If legislation enables expert evidence to influence a decision to refuse consent for a coal mine, regulation ought to enable that same evidence to influence a board’s decision to depart from GHG-emitting projects before planning law needs to intervene. Transitioning to renewable energy sources, diversification of assets and efficiency of production are all examples of climate-related opportunities provided by the TCFD Recommendations.[127] International law contributes most valuably when it provides clear, unified standards for compliance across related statutory regimes. In this way, a director complying with their statutory duty to address climate risks makes it more likely that their company will pursue projects compliant with statutory planning principles, so long as these duties and principles are all anchored to the Paris temperature goal and Australia’s NDC.
IV ENHANCING ACCESS TO INFORMATION
A Technology Networks
The efficacy of adopting expert evidence depends on the quality of the research behind it, and on practical opportunities to implement it. The International Council on Human Rights Policy has said that ‘[t]echnology transfer in the in the UNFCCC also has a practical dimension – it is impossible to imagine dealing effectively with the global problem of climate change if advanced technologies are not made available where they are most needed’.[128] The UNFCCC Climate Technology Centre and Network (‘CTCN’) is the implementation arm of the UNFCCC Technology Mechanism,[129] the end product of calls in the 2000s to establish a network of climate innovation centre to support developing nations.[130] While the CTCN has been successfully in implementing several requests for technological assistance, its drawbacks stemming from a lack of funding appropriate to its purpose have been noted.[131]
The CTCN represents just one entity in a body of global technology institutions, including WIPO GREEN, the Green Climate Fund (which is a source of funding for the CTCN)[132] and Mission Innovation. While mixed models of technology funding can provide positive checks and balances, the model has received criticism for large amounts of overlap between these bodies, leading to uncertainty as to their purposes, and inefficiency in operations.[133] Much like Australia’s ‘network’ of climate-related legislation, having these bodies prescribe to a unified set of international policies, rules and practices may alleviate some of these issues while retaining the positives of the ‘network’ model.
An example of the benefits received by Australia from international technology-sharing networks is its membership of the International Solar Alliance (‘ISA’). The ISA is a ‘common platform for cooperation among sun-rich countries ... seeking to massively ramp up solar energy, thereby helping to bend the global greenhouse emissions curve’.[134] Receiving the highest solar radiation per square metre of any continent,[135] Australia’s membership of the ISA has been lauded on the grounds that Australia can provide unique expertise in solar energy, and in turn consolidate its relationships with its international partners.[136] This research and development cooperation could provide a multitude of investment opportunities within the energy industry.
Coupled with incentives under the Safeguard Mechanism, technology networks like the ISA can enable companies to develop more versatile and innovative ways of maintaining emissions below the prescribed emissions limit (the ‘baseline’), which from 1 July 2023 was reformed to reflect Australia’s NDC, rather than business-as-usual levels.[137] Under the Safeguard Mechanism, facilities emitting GHGs in excess of the baseline must retire a certain number of Australian Carbon credit units (‘ACCU’) or Safeguard Mechanism credit units (‘SMC’).[138] ACCUs are issued per tonne of carbon dioxide equivalent net abatement achieved by ‘eligible offsets projects’, for which an activity must fulfil certain criteria to qualify.[139] SMCs are issued if, in a particular financial year, a facility’s GHG emissions are below the baseline.[140] Australia’s climate law regime is therefore, in large part, project-centric. Proponents have much better access to the incentives under the Safeguard Mechanism as a result of Australia’s participation in international technology-sharing networks, and high standards of analysis and disclosure prescribed by the TCFD Recommendations. Engaging with these regulatory practices is encouraged when standards of statutory compliance with corporations, planning, anti-discrimination and human rights legislation are all anchored to climate considerations, especially GHG emissions performance.
B Community Consultation
If Australia’s international obligations are better encoded into its domestic policies and legislation, then the human rights of its communities, particularly its Indigenous and other disadvantaged communities, are better upheld. While part of this effort involves the effective dissemination and adoption of scientific expertise and evidence, what is also required is the empowerment of local knowledge and perspectives.
The ongoing German case of Lliuya v RWE involves action against the defendant utility for contributing, via GHG emissions, to the melting of glaciers which will carry adverse effects on a Peruvian town, and the livelihood of the plaintiff farmer.[141] The site visit that was conducted in the evidentiary phase of these proceedings was the first time in Germany that judges and court-appointed experts undertook travel to another jurisdiction to investigate climate damage.[142] It marks a gaining of traction in the Western hemisphere with regard to victim engagement and local consultation, which are already commonplace practices in the global south,[143] despite contributions from the former region impacting disproportionately on those in the latter.[144] But again, leaving this work to litigation risks overcommitting resources to restitutive mechanisms. While climate harms have reached a stage sufficiently acute as to warrant these, a continual neglect of community consultation in the early stages of decision-making will lead to more resources diverted towards mass, systemic compensation. These include mechanisms such as the ‘International Insurance Pool’, or the Loss and Damage Finance Facility agreed to at COP27 – though uncertainties remain as to how its beneficiaries and donors will be determined.[145]
While mechanisms to address loss and damage are essential, they are no substitute for integrating local knowledge and consultation in the decision-making process. In Rocky Hill, Preston CJ referred closely to submissions received from members of the local community objecting to the mine.[146] Democratic participation is a fundamental tenet of planning law and underpins its legislative framework.[147] In Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority [No 2] (‘Tipakalippa’),[148] consent for an offshore gas project was refused as the proponents were held not to have sufficiently consulted with the traditional owners in the Tiwi Islands, Northern Territory.[149] On-country evidence provided by the Tiwi traditional owners indicated how the project compromised their food sources.[150] While the case did not refer to human rights,[151] it mirrored the concerns in Billy v Australia wherein calls for action on the basis of global commitments were made on the basis of local harms. Tipakalippa illustrates ‘a convergence that can no longer be ignored’ between human rights and decisions made under environmental law.[152] In Waratah Coal, Australia’s sole successful action based on human rights legislation, the court gave significant priority to the cultural rights of Indigenous witnesses to have evidence heard on country.[153]
These examples show the importance of community consultation ahead of any state or non-state decision-making. And again, legislation is well-placed to formalise this practice. For example, the scope of a Review of Environmental Factors or Environmental Impact Statement under the EP&A Act,[154] could be expanded to explicitly include consideration of GHG emissions (including scope 3) against the Paris temperature goal and Australia’s NDC. A separate provision could provide for mandatory consultation with any affected communities on the lands, addressing these specific considerations. It would make sense, in light of the global ‘convergence’ between human rights and climate protection, that domestic regimes to protect each would be unified in legislation to match what is happening in practice. And as discussed, the considerations motivated by what is legislated are better dealt with in negotiation, consultation or conciliation, rather than in the courtroom.[155]
V CONCLUSION
Without Constitutional rights to life, health or the environment, Australian litigants have some disadvantages if they wish to hold their state accountable to its obligations under the Paris Agreement.
Nevertheless, Australian courts have incorporated the Paris temperature goal and Australia’s NDC into a range of different areas of law. Many distinct, but interlinked, statutory schemes are relevant to climate action. Common to all of them is the invaluable role played by expert and local perspectives. Regulations surrounding corporate decision-making, conciliation, consultation and research allow a wide range of evidence to be put to use in an array of situations that do not involve the courtroom, a more proactive contribution to Australia’s climate response.
While emissions transcend state boundaries,[156] climate harms are felt by specific peoples and communities. Both ‘hard’ and ‘soft’ mechanisms for climate action are only effective if they give voice to the expert knowledge and evidence of those most affected by climate harms. Global and local interests feature equally at the forefront of climate litigation worldwide. Addressing these interests earlier in the process of public and private decision-making maintains our focus on how best to prevent climate harms, rather than how best to apologise for them.
[1] Graham Mott, Carlos Razo and Robert Hamwey, ‘Carbon Emissions Anywhere Threaten Development Everywhere’, United Nations Conference on Trade and Development (online, 2 June 2021) <https://unctad.org/news/carbon-emissions-anywhere-threaten-development-everywhere>.
[2] Paris Agreement to the United Nations Framework Convention on Climate Change, opened for signature 22 April 2016, [2016] ATS 24 (entered into force 4 November 2016) (‘Paris Agreement’)
[3] ‘Australia Submits New Emissions Target to UNFCCC’, Department of Climate Change, Energy, the Environment and Water (Cth) (Web Page, 16 June 2022) <https://www.dcceew.gov.au/about/news/australia-submits-new-emissions-target-to-unfccc>.
[4] Paris Agreement (n 2) art 2(1)(a).
[5] Maria Antonia Tigre and Margaretha Wewrinke-Singh, ‘Beyond the North-South Divide: Litigation’s Role in Resolving Climate Change Loss and Damage Claims’ (2023) 32(3) Review of European, Comparative International Environmental Law 439, 441.
[6] Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 10 December 1997, 2303 UNTS 162 (entered into force 16 February 2005).
[7] Jutta Brunnée, ‘Legal Argumentation in the Evolving Climate Regime’ in Ian Johnstone and Steven Ratner (eds), Talking International Law: Legal Argumentation Outside the Courtroom (Oxford University Press, 2021) 239, 240–1.
[8] Ibid 245.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid 247.
[13] Ibid 246.
[14] Ibid; Paris Agreement (n 2) arts 4(2), 6(1).
[15] C/09/456689/HA ZA 13-1396, 24 June 2015 (Hague District Court); Netherlands v Urgenda Foundation, 19/00135, 20 December 2019 (Supreme Court of the Netherlands) (‘Urgenda’).
[16] Brian J Preston and Nicola Silbert, ‘Trends in Human Rights-Based Climate Litigation: Pathways for Litigation in Australia’ (2023) 49(1) Monash University Law Review 39, 46.
[17] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
[18] Preston and Silbert (n 16) 47.
[19] Bundesverfassungsgericht [German Constitutional Court], 1 BvR 2656/18, ECLI:DE:BVerfG:2021:rs20210324.1bvr265618, 24 March 2021 reported in (2021) 157 BVerfGE 30.
[20] Preston and Silbert (n 16) 49–50.
[21] Danny Noonan, ‘Imagining Different Futures through the Courts: A Social Movement Assessment of Existing and Potential New Approaches to Climate Change Litigation in Australia’ [2018] UTasLawRw 11; (2018) 37(2) University of Tasmania Law Review 25, 31.
[22] Preston and Silbert (n 16) 67.
[23] Climate Change Act 2022 (Cth) s 10.
[24] Lee Godden, ‘Energy Law and Regulation in Australia’ in Giuseppe Bellantuono et al (eds), Handbook of Energy Law in the Low-Carbon Transition (De Gruyter, 2023) 369, 375.
[25] Ibid.
[26] [2021] EWHC 3469 (Admin).
[27] Preston and Silbert (n 16) 56.
[28] Ibid.
[29] Ibid.
[30] See, eg, Human Rights Act 2004 (ACT); Human Rights Act 2019 (Qld); Charter of Human Rights and Responsibilities Act 2006 (Vic).
[31] Rosalind Croucher, ‘A New National Human Rights Framework for Australia’ (Speech, Annual Castan Centre for Human Rights Law Conference, 21 July 2023).
[32] Ibid.
[33] Ibid.
[34] Preston and Silbert (n 16) 59.
[35] Human Rights Committee, Views: Communication No 3624/2019, 135th sess, UN Doc CCPR/C/135/D/3624/2019 (21 July 2022) (‘Billy v Australia’) 16 [9].
[36] Ibid 16 [12]; ‘UN Human Rights Committee Finds Australia Violated Torres Strait Islanders’ Human Rights over Climate Inaction’, Human Rights Law Centre (Web Page, 8 December 2022) (‘UNHRC Finds Australia Violated Rights’) <https://www.hrlc.org.au/human-rights-case-summaries/un-human-rights-committee-finds-australia-violated-torres-strait-islanders-human-rights-over-climate-inaction>.
[37] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[38] UNHRC Finds Australia Violated Rights (n 36).
[39] Ibid.
[40] Racial Discrimination Act 1975 (Cth) sch 3(1); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘ICERD’).
[41] Beth Goldblatt, ‘Climate Change, Inequality and Discrimination Law: The Example of Swimming Pool Access in Moree’ (2023) 46(1) University of New South Wales Law Journal 56, 58.
[42] Susan Glazebrook, ‘Climate Change and the Courts: Balancing Stewardship and Restraint’ [2023] (August/September) Judicature International 1, 1.
[43] Goldblatt (n 41) 68–70.
[44] See, eg, Verity Gorman, ‘Prisoner Welfare Concerns at WA Jail Raised with Human Rights Commissioner and UN’, ABC News (online, 16 February 2022) <https://www.abc.net.au/news/2022-02-16/prisoner-welfare-concerns-at-roebourne-jail-attract-attention/100831654>.
[45] Alice Angeloni and Verity Gorman, ‘Roebourne Regional Prison’s $10m Aircon Fix Leaves Prison Officers Union “Stunned”’, ABC News (online, 25 November 2022) <https://www.abc.net.au/news/2022-11-25/roebourne-prison-officers-stunned-cost-air-conditioning/101695460>.
[46] Ibid.
[47] Human Rights Watch, World Report 2023: Events of 2022 (Report, 2023) 48.
[48] Rebecca Dollery, ‘Fred Chaney Says Racist Attitudes to Blame for Lack of Air Conditioning at Roebourne Prison’, ABC News (online, 8 November 2022) < https://www.abc.net.au/news/2022-11-08/fred-chaney-says-no-air-con-at-roebourne-prison-a-sign-of-racism/101617794>.
[49] Goldblatt (n 41) 72.
[50] Ibid 74–5; ICERD (n 40) art 5.
[51] Ibid 73–5.
[52] See, eg, Office of the Inspector of Custodial Services (WA), Report of an Announced Inspection of Roebourne Regional Prison (Report No 106, October 2016) 8–9.
[53] Ibid.
[54] Paul Daley, ‘This Picture Tells the Story of a Prison that Was – and Remains – Medieval for Aboriginal Inmates’, The Guardian (online, 12 May 2022) <https://www.theguardian.com/australia-news/postcolonial-blog/2022/may/12/this-picture-tells-the-story-of-a-prison-that-was-and-remains-medieval-for-aboriginal-inmates>.
[55] Samantha Goerling, ‘Documentary Spotlights “Dark, Tragic History” of Old Roebourne Gaol’, ABC News (online, 6 April 2022) <https://www.abc.net.au/news/2022-04-06/roebourne-indigenous-prison-university-of-liverpool-bary-godfrey/100964982>.
[56] UNHRC Finds Australia Violated Rights (n 36).
[57] Ibid; Billy v Australia (n 35) 15 [8.12].
[58] (Federal Court of Australia, VID622/2021, commenced 26 October 2021).
[59] Sabin Centre for International Law, ‘Pabai Pabai and Guy Paul Kabai v Commonwealth of Australia’, Climate Chase Chart (Web Page) <https://climatecasechart.com/non-us-case/pabai-pabai-and-guy-paul-kabai-v-commonwealth-of-australia/>.
[60] Environmental Planning and Assessment Act 1979 (NSW) ss 1.5, 5.1 (definition of ‘activity’) (‘EP&A Act’).
[61] Gloucester Resources Ltd v Minister for Planning (NSW) [2019] NSWLEC 7, [498] (Preston CJ) (‘Rocky Hill’).
[62] Deborah C Peterson, ‘Precaution: Principles and Practice in Australian Environmental and Natural Resource Management’ (Conference Paper, 50th Annual Australian Agricultural and Resource Economics Society Conference, February 2006) 4–5.
[63] Environmental Planning and Assessment Regulation 2021 (NSW) s 193(2) (‘EP&A Reg’).
[64] Telstra v Hornsby Shire Council (2006) 67 NSWLR 256 (‘Telstra’) [150].
[65] Peterson (n 62) 7.
[66] Telstra (n 64) [150] (Preston CJ).
[67] Lydia Slobodian, ‘Defending the Future: Intergenerational Equity in Climate Litigation’ (2020) 32(3) Georgetown Environmental Law Review 569, 572.
[68] Ibid; United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994) art 3(1).
[69] EP&A Act (n 60) s 4.15(1)(e); Telstra (n 64) [124] (Preston CJ).
[70] [2006] NSWLEC 720; [2006] 152 LGERA 258 (‘Gray’).
[71] Ibid [130].
[72] Ibid [134].
[73] Rocky Hill (n 61) [526].
[74] Ibid [527].
[75] Ibid [697]–[699].
[76] Ibid [523], [538]–[545].
[77] Noonan (n 21) 38–9.
[78] [2008] NSWCA 224 (‘Walker’).
[79] Ibid [61] – [63] (Hodgson JA).
[80] Ibid [53]–[53] (Hodgson JA).
[81] [2023] FCAFC 139 (‘Gelorup’).
[82] Ibid [85]–[86] (Jackson and Kennett JJ).
[83] See, eg, Planners North v Ballina Shire Council [2021] NSWLEC 120.
[84] Gelorup (n 81) [174].
[85] Samantha Murphy and Eternity Lim, ‘A Cautious Approach to the Precautionary Principle’, Maddocks (Blog Post, 21 September 2023).
[86] Marion Manifold and Brad Jessup, ‘Shifts in Victorian Climate Law and the Planning System: Intersected Views from the Field and Academia’ [2016] UNSWLawJl 62; (2016) 39(4) University of New South Wales Law Journal 1652, 1657–9.
[87] Ibid 1682.
[88] Goldblatt (n 41) 56–7.
[89] Preston and Silbert (n 16) 21.
[91] Preston and Silbert (n 16) 21–2.
[92] Ibid.
[93] Noonan (n 21) 40.
[94] Ibid 38.
[95] 549 US 497, (2007).
[96] Hari Osofsky and Jacqueline Peel, ‘Litigation’s Regulatory Pathways and the Administrative State: Lessons from US and Australian Climate Change Governance’ (2013) 25 Georgetown International Environmental Law Review 207, 224.
[97] Noonan (n 21) 38.
[98] Manifold and Jessup (n 86) 1652.
[99] Ibid.
[100] Rocky Hill (n 61) [8] (Preston CJ).
[101] Glazebrook (n 42) 1.
[102] Brunnée (n 7) 248.
[103] See, eg, ‘Conciliation’, Land and Environment Court of NSW (Web Page, 8 May 2023) <https://www.lec.nsw.gov.au/dispute-resolution/conciliation.html>.
[104] Noonan (n 21) 42–3.
[105] Goldblatt (n 41) 75–7.
[106] Croucher (n 31) (emphasis in original).
[107] Manifold and Jessup (n 86) 1682.
[108] Glazebrook (n 42) 2.
[109] See Noel Hutley and Sebastian Hartford-Davis, Climate Change and Directors’ Duties (Memorandum of Opinion, Centre for Policy Development and the Future Business Council, 7 October 2016).
[110] Ibid 3 [3].
[111] Ibid 14–5.
[112] Croucher (n 31).
[113] Australian Securities and Investments Commission v Healy [2011] FCAFC 717; (2011) 278 ALR 618, 625 [17] (Middleton J).
[114] Task Force on Climate-Related Financial Disclosures, Recommendations of the Task Force on Climate-Related Financial Disclosures (Final Report, June 2017) (‘TCFD Recommendations’) iii, 2.
[115] Australian Securities Exchange Corporate Governance Council, Corporate Governance Principles and Recommendations (4th Edition, February 2019) (‘ASX Principles’) 27.
[116] Ibid 2.
[117] TCFD Recommendations (n 114) v.
[118] Ibid 27–8.
[119] Ibid.
[120] Ibid 25–7, 38.
[121] Anita Foerster et al, ‘Keeping Good Company in the Transition to a Low Carbon Economy? An Evaluation of Climate Risk Disclosure Practices in Australia’ (2017) 35 Company and Securities Law Journal 154, 161.
[122] Sarah Barker, Directors’ Liability and Climate Risk: Australia (Commonwealth Climate Law Initiative Country Paper, April 2018) 37.
[123] Foerster et al (n 121) 161.
[124] Robert Czernkowski, Stephen Kean and Stephen Lim, ‘Impact of ASX Corporate Governance Guidelines on Sustainability Reporting’ (2019) 32(4) Accounting Research Journal 692, 713.
[125] Amir Gholami, John Sands and Syed Shams, ‘The Impact of Corporate ESG Performance Disclosure across Australian Industries’ (2022) 16(4) Australasian Accounting Business and Finance Journal 180, 192.
[126] TCFD Recommendations (n 114) 11.
[127] Ibid.
[128] Matthew Rimmer, ‘Beyond the Paris Agreement: Intellectual Property, Innovation Policy, and Climate Justice’ (2019) 8(1) Laws 7, 9.
[129] UN Climate Technology Centre and Network (Web Page) <https://www.ctc-n.org/>.
[130] Rimmer (n 128) 12–13.
[131] Ibid 13–14.
[132] Ibid.
[133] Ibid 24.
[134] Ibid 21.
[135] ‘Solar Energy’, Geoscience Australia (Cth) (Web Page, 7 June 2023) <https://www.ga.gov.au/scientific-topics/energy/resources/other-renewable-energy-resources/solar energy#:~:text=Australia%20receives%20an%20average%20of,than%20its%20total%20energy%20consumption>
[136] Rimmer (n 128) 22.
[137] Jan McDonald et al, ‘Greenhouse Gas Removal in Australian Climate Law: A Positive Role for Negative Emissions’ (2023) 46(1) University of New South Wales Law Journal 79, 81.
[138] ‘The Safeguard Mechanism’, Clean Energy Regulator (Cth) (Web Page, 28 July 2023) <https://www.cleanenergyregulator.gov.au/NGER/The-Safeguard-Mechanism>.
[139] ‘Australian Carbon Credit Units’, Clean Energy Regulator (Cth) (Web Page, 27 June 2023) <https://www.cleanenergyregulator.gov.au/OSR/ANREU/types-of-emissions-units/australian-carbon-credit-units>
[140] ‘Safeguard Mechanism Credit Units’, Clean Energy Regulator (Cth) (Web Page, 28 July 2023) <https://www.cleanenergyregulator.gov.au/NGER/The-Safeguard-Mechanism/The-Safeguard-Mechanism-for-financial-years-commencing-on-or-after-1-July-2023/Safeguard-Mechanism-credit-units>.
[141] Landgericht [LG] [Regional Court] Essen, 15 December 2016, 2 O 285/15, cited in Tigre and Wewerinke-Singh (n 5) 443.
[142] Tigre and Wewerinke-Singh (n 5) 445.
[143] Ibid.
[144] Ibid 441.
[145] Ibid 442.
[146] See, eg, Rocky Hill (n 61) [289].
[147] Benjamin J Richardson and Sarah Castles-Lynch, ‘Trying to Express Climate Concerns through Environmental Law? The Changing Lawscape of Public Participation’ (2023) 13(1) Climate Law 1, 5.
[149] Cristy Clark and Beth Goldblatt, ‘The Right to a Healthy Environment and Social and Economic Rights: Responding to Climate Change in Australia’ (2023) 29(1) Australian Journal of Human Rights 65, 75.
[150] Ibid.
[151] Ibid.
[152] Ibid.
[153] Preston and Silbert (n 16) 64.
[154] EP&A Act (n 60) ss 5.5, 5.7, 5.10; EP&A Reg (n 63) s 171.
[155] Goldblatt (n 41) 75–7.
[156] Tigre and Wewerinke-Singh (n 5) 449.
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