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Green Lawfare: Public Interest or Public Menace?
Substantive Law| What area(s) of law does this episode consider? | Environmental law, public interest environmental litigation and the idea of so-called “green lawfare”. |
| Why is this topic relevant? | Public interest environmental litigation is a powerful tool to hold parties to account for the impact of their actions on the environment. It has been unfairly described as vexatious and frivolous, with an intent to hinder Australia’s infrastructure projects. However, longitudinal empirical data of environmental matters in the Federal Court does not support the conclusion that public interest environmental litigation acts as a brake on infrastructure projects, or that it is used frivolously or vexatiously to stall development. |
| What legislation is considered in this episode? | Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic) Environmental Protection and Biodiversity Conservation Act 1999 (Cth) |
| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | The Hon George Brandis QC’s address to the Australian Institute of Administrative Law forum No. 90 called ‘Green Lawfare’ and Standing: The View from Within the Government’ General Comment No. 36 from the Human Rights Committee |
| David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. From the COP 26 Climate Change Summit in Glasgow to carbon capture and storage and the Clean Energy Finance Corporation, the climate crisis is in the spotlight right now, both domestically and internationally. Joining us in the Hearsay studio today is Annika Reynolds, the founder and CEO of GreenLaw, an Australian think tank that aims to empower young lawyers to tackle the climate crisis. Annika will be talking us through some of GreenLaw’s research in its four core areas, democracy in the environment, a just transition, biodiversity conservation and future communities. Annika, thanks so much for joining me today on Hearsay. |
| Annika Reynolds: | Thank you so much for having me, David. |
| DT: | Now, Annika, you founded GreenLaw in 2019, so it’s a relatively new organisation. Tell us a little bit about what led to you founding GreenLaw and what’s its mission? |
| AR:
2:00
3:00 | Thank you David for the question. GreenLaw is a young person led think tank, about empowering and leveraging the next generation of lawyers and legal advocates to tackle the climate crisis. We complete legal research, law reform and policy development to directly advocate for a transformative vision of climate justice and we also work to empower environmentally conscious organisations to engage effectively with legal institutions for that same vision, and I think it’s important to touch on quickly what tackling the climate crisis actually means from our perspective. So it’s all about achieving environmental justice where we address historical and contemporary injustices, alongside a transition to a Carbon Zero society and flourishing, thriving biodiversity. That means contributing to first people justice in the healing of country and recognising our responsibility to ensure justice for all species, beings and ecosystems which we recognise has been led by first people since time immemorial and in the present. So I founded GreenLaw for two reasons. You could guess that a part of that is about achieving environmental justice, but the core reason is that young professionals – I’m sure many of the listeners here are either young professionals or are working with an inspiring young person – we have a vision to change that is ambitious, transformative, and needed to deliver an environmentally just future. I think it’s a real shame that we often see young people be rolled out as a tokenistic emotional voice and then rolled back off stage for the real adults to talk about change. Our expertise deserves to be recognised. And then I think the second reason is that we all know in the legal profession that the law is a really powerful system and it’s really powerful for systemic change. We need to tackle climate change. We want to empower all environmentally conscious organisations in the public to engage effectively with the law to advocate for and see real change. |
| DT:
4:00 | I’m so glad you mentioned that because there is such a wealth of capacity, of enthusiasm for legal reform, for using the law as a tool to affect social change in the young legal profession and I think more than 50% of the profession, at least in New South Wales and the ACT is under 36 years of age. So, there are many young lawyers who want to contribute, and it’s great that you’re providing an outlet so that those really talented young people have a place where they can help to achieve some of those goals. And I’m also really glad that you gave us that definition of environmental justice because I think for someone who’s maybe unfamiliar with the term, it could be quite confusing what that means. But it’s really about achieving that amorphous, but sort of well understood in the profession, concept of justice, but not just for humans in a built environment, but for our ecosystem, the species that live in it and a more expansive idea of justice, I suppose. |
| AR:
5:00
6:00
7:00 | Yeah, absolutely, and I think we have a lot to learn from First Nations people across Australia and across the world about what justice means for all species and beings and when I was giving that environmental justice definition, I used the word ‘being’ to kind of capture justice for things like rivers and rocks and the ground itself, and I think there’s real recognition amongst First Nations people that our rivers do have a spiritual personhood that needs to be recognised and protected and excitingly, in the legal space, we’re starting to look at how those concepts can be embedded in our laws, so we are increasingly seeing legal personhood being given to rivers across the world, and there’s an ongoing campaign for the Martuwara in WA – or the Fitzroy River system – about legal personhood being awarded to that river under Native Title to ensure that there is justice for people in our urban environments but there is also justice for the lands and our responsibilities as custodians of the land is really embedded in our laws, which it sounds very spiritual, it sounds a bit disconnected to perhaps some of us city living folk, but ultimately our rivers are the water we drink. They are the foundation of so much of our crops and agriculture across Australia. They are the life force of our nature reserves that we love to go out and enjoy and I think in the legal profession we have an incredible capacity because we speak the language of the law to bring these concepts into our legal system for justice for all. TIP: Now, for centuries Australia’s Aboriginal people have held a strong spiritual connection to country and especially to rivers. The first example of a river being granted distinct legal personhood under the Australian common law system actually occurred in Victoria in 2017, with the enactment of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017. Wilip-gin Birrarung murron translates to “keep the Birrarung alive” in the language of the custodian Wurundjeri Woi-wurrung people. The Act was passed to protect the Yarra river as one living and integrated natural entity and highlighted the connection between the Yarra river and its custodians and their past, present and ongoing stewardship of it. Now, Annika also mentioned the Martuwarra (Fitzroy) River campaign, another example of the drive to grant rivers legal personhood.The aim of the campaign is to uphold the values that underpin the Martuwarra River’s heritage listing. The river is nationally heritage listed but legal personhood would grant an additional layer of protection to that heritage listing. Another goal of the campaign is to protect the land and the river for all those who practically rely on the river as well. |
| DT:
8:00 | You know it’s so interesting because I imagine a lot of people do think ‘well, that idea of personhood for a river sounds really spiritual, that sounds really philosophical,’ but at the same time we afford personhood, uncontroversially to a corporation, right? And the corporation is just a separate entity that represents the shareholders collective investment in a continuing enterprise and the law has recognised for centuries that affording a corporation separate legal personhood is important to achieving justice for the investors in that corporation and the creditors of that corporation and the officers of that corporation, and I suppose, looking at it that way, there’s no real jurisprudential difference between personhood for a corporation, and personhood for a natural feature that similarly has so many different stakeholders. |
| AR: | Yeah, and that’s a really great point, David, characterising it in that way because it even reminds me of the Crown. We imbue legal personality into our entities of state because we recognise that we all have a stake in those entities and that they need to be able to function in a collective way, and I think that really shows the blueprint of what we can achieve under the common law Australian legal model of really exploring justice for non-human beings. |
| DT: | Now, I mentioned in the intro to this episode that GreenLaw has four main streams to its research and that’s democracy in the environment, a just transition, biodiversity conservation and future communities is the last one. Can you tell us a bit about why GreenLaw have selected these four priorities and what the overarching philosophy behind them is? |
| AR: 9:00
10:00 | Yeah, absolutely. So, I think it comes down to our belief that these are the four core areas that we need reform to deliver an environmentally just future for all of us. Our vision of environmental justice, as we’ve already talked about, is expansive. It includes as a foundation or a precondition of justice, a just transition to a Carbon Zero society but we recognise that the transition is not the endpoint. We want to imagine future communities that are sustainable, interconnected, thriving. We also know that a transition to Carbon Zero is not enough to halt global biodiversity decline, so we must also safeguard our natural environment. And finally, we recognise that the only real way to deliver on these outcomes is through a collaborative and robust democratic process. So, for the keen listener they might have picked up on our four core research areas in that spiel and what a keen listener might also have picked up on is that we don’t have a standalone Indigenous justice stream of research for two reasons. One; GreenLaw is predominantly non Indigenous and is managed by non Indigenous people and I think it’s really important in the environmental justice space that as much as we learn from and try to examine the values of Indigenous peoples, that we do not seek to speak over Indigenous peoples. And secondly, that all law reform should be informed by Indigenous values, laws and ways of living, and that’s why we have our four core research areas and some of the policy pillars under all four of the core research areas look at Indigenous justice, so in our future community stream, one of our policy pillars is to ensure that first peoples’ visions for a decolonised future elevated and form the basis of law reform and planning decisions. |
| DT: | It’s really a value that you’ve integrated into the whole body of the organisation. |
| AR:
11:00
12:00 | Yeah. I think it’s a challenging line to walk and I’m sure many of the listeners will have a sense of their own journey through decolonisation and reconciliation and healing, whether that’s from personal lived experience as an Aboriginal Torres Strait Islander person or through work or personal experiences. I think it’s very important for us to recognise in non-Indigenous Australia that we have a real stake in healing and engaging in reconciliation actions and that we have so much to learn from the rich wisdom of First Nations elders and ways of living. But that process of learning and healing must be done in a way that is respectful of Indigenous sovereignty and voices, and so at GreenLaw a real focus of ours is actually engaging in self-decolonisation work. So, we don’t have a massive Indigenous group that works in GreenLaw, although any young Indigenous professional that’s interested is more than welcome to get in contact, but that doesn’t excuse us from engaging in decolonisation work. It doesn’t excuse us from doing reconciliation work or from looking at law reform that uplifts the Indigenous voices that exist in the space. So, for example, we’ve been doing some work in energy law reform, and whilst we don’t have an energy Indigenous lawyer working with us, we do know that there have been launches, recently, of community energy groups run by Indigenous people and that there’s a real push in Indigenous nations to have the dividends of community energy be distributed back to First Nations people, and so that’s a policy pillar that we’ve put into our reform work as a part of being an ally. |
| DT: | I wanted to start with one of your research projects in the biodiversity conservation portfolio. This is quite an interesting and novel bit of research that you’ve been doing. This is an empirical study into so-called ‘green lawfare’. Now, the term itself is fairly descriptive, but for someone who’s never heard the term before, what is green lawfare? |
| AR:
13:00
14:00 | It is pretty descriptive, isn’t it? It’s very emotive. So, I think it’s important to recognise that this originated in conservative media and political circles with a bit of a political agenda, unfortunately. So the definition of green lawfare is that it refers to public interest litigants, predominantly non-government organisations, using vexatious litigation to sabotage and disrupt major development projects. So very stereotypical, a greenie’s in court, they don’t have a proper court case, but they’re demanding that the project be stopped because they don’t want the environmental impacts to go ahead. That’s the image that it tries to evoke. And it’s been a very emotive myth in the Australian Institute of Administrative Law Forum, then Attorney General Brandis has stated a couple of years ago that “lawfare can bring the courts into disrepute, and it can use those courts for its own purpose… for the agitation of political and social arguments rather than for the vindication of legal rights. It [turns the courts away from being] an umpire to be approached so much as a weapon to be deployed,” which is really emotive. So the aim of such terminology is to invalidate public interest environmental litigation and it’s been deployed since funnily enough, the Australian Conservation Foundation’s successful court case against the Minister for the Environment regarding decision making around the Adani, now Carmichael, Mine in 2015. |
| DT: | And I suppose one of the features of the legislation in this area, which is said to contribute to the phenomenon of green lawfare, and this is one of the reasons why the Conservation Council was able to be involved in that litigation, is the public interest standing rules under the Environmental Protection and Biodiversity Conservation Act. Can you tell me a little bit about the standing provisions in the Act? |
| AR:
15:00 | Yeah, absolutely. David and I think very much green lawfare comes back to the standing provisions, but I do want to emphasise that even without the standing provisions, allegations of lawfare could still happen. Ultimately, the aggrieved persons or special interest tests under most judicial review proceedings would likely allow public interest environmental litigation. So the extended standing provisions have aided this narrative of green warfare, but they certainly aren’t the cause of public interest environmental litigants. But into the meat of the standing provisions. So under Section 487 of the EPBC Act, there is an extended standing for judicial review clause that allows any individual or organisation to meet the aggrieved person test if they’ve been involved in environmental advocacy or research or conservation in the last two years prior to filing a court case. So it doesn’t require consistent advocacy. It doesn’t even require that the objects of your NGO be limited to environmental matters or environmental advocacy, and so the impact of this provision is that public interest environmental litigants are largely assumed to have standing and proceedings can focus on other issues. You rarely see in the case or a detailed standing analysis in these EPBC Act cases. |
| DT: | I was just going to say it does sound like a pretty sort of ankle high bar to jump. I can’t imagine that there’s very many complex questions of fact about whether a litigant has satisfied that test. |
| AR: 16:00
17:00 | Yeah, and I think occasionally it does happen when it’s just individuals, often individuals without legal representation, that does sometimes come up, but I think that’s a broader issue of access to justice, but I do think that extended standing is important. In fact, open standing would be fantastic under the EPBC Act, that exists in other jurisdictions in Australia, notably, the New South Wales Land and Environment Court has open standing, and I think it’s really important that we have this kind of standing because environmental impacts, especially for nationally significant environmental matters, like those protected under the EPBC Act – we’re thinking threatened species, the Great Barrier Reef, our World Heritage places – they’re really important to all of us. The impacts of damage to those areas are felt on a widespread scale, and so extended standing ensures that the public at large can participate in environmental decision making and safeguard that decision making process and not to get too technical for the listener who didn’t think they’d be learning about the World Heritage Convention today, but I’m going to take us there, ultimately the EPBC Act was enacted to fulfil our obligations under the World Heritage Convention, the Convention on Biological Diversity and a bunch of other international environmental conventions and those conventions do have obligations and aspirations for Australia and other treaty parties to ensure the community has access to information regarding developments and to have their views heard and taken into consideration by decision makers. So, I’m in massive favour of these extended standing provisions even before we jump into the fact that green lawfare is a myth, I think they’re massively important. |
| DT: | Now of course, the purpose of your empirical study was to identify whether this phenomenon was actually taking place as alleged. How did you go about conducting that study? |
| AR: 18:00
19:00 | So, it was an empirical review of all public interest environmental cases between the 1st of January 2009 and the last day of December in 2019 in the Federal Court. So, we spent far too much time during a law student summer on the Federal Court portal, which was an interesting time, but we used a number of primary sources to collate as much data as we could on when these cases are filed, all of the interlocutory applications that were made, any interim decisions that were handed down and then the final decision, and we collated that altogether to assess a number of key areas. So, previous empirical research about public interest litigation under the EPBC Act had really been limited to assessing just the number of cases where there’s been a flood gate style of vexatious litigation. But since 2015, when green lawfare really took off, most of the allegations have been that there’s been a few very strategic cases that have abused court processes. So, we wanted to assess both the actual number of public interest cases and then a couple of key areas that would indicate if court processes are being abused. So we assessed whether the public interest environmental litigation was disproportionately dismissed as vexatious, whether cases were disproportionately utilising court processes to restrain proponents during proceedings through the use of injunctions, if there were any extended delays related to proceedings that couldn’t be explained through the ordinary court process and the fact that the courts are a little bit overworked and any links between the court cases or outcomes and where the projects were ultimately being discontinued, is the economic cost of public interest litigation actually having a disproportionate impact on economic development in Australia? |
| DT: | And what was your finding as a consequence of applying that methodology? |
| AR:
20:00
21:00
22:00 | So, the key message that we really found is that public interest environmental litigation is not lawfare. There is not a flood of cases. There’s not a disproportionate amount of vexatious cases and public interest litigants are not abusing court processes. In the entire period, we’re talking a whole decade, only 32 public interest environmental cases were filed. This is 0.06% of the Federal Court’s average yearly caseload and represents challenges to only 0.11% of all decisions made by the Environment Department. We’re talking a tiny amount of cases, and the success rates of those cases are notable; 26% of the cases were successful, which is a comparable rate to successful challenges in the AAT, and we’re not claiming that the AAT is flooded with vexatious litigants, we understand that you go in court and court is challenging. You don’t always win. And it was also consistent with research conducted by previous academics, including Macintosh et al. which found a success rate of about 22.5% under the EPBC Act for public interest litigation. So, there’s been a really consistent usage of the EPBC Act and the standing provisions under the EPBC Act to enable genuine public interest litigation that is being done to protect environmental matters in very serious or concerning developments, and they’re not always successful, but they are being put forward for genuine reasons. TIP: Now, the study Annika’s referring to here is the report titled ‘An Empirical Evaluation of Environmental Citizen Suits under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’, conducted by Andrew Macintosh, Heather Roberts and Amy Constable. From June 2000 to the end of 2015, the report analyses the frequency of citizen suits, their success rates, whether the effect or outcome of the litigation were later reversed by executive action and the extent the lawsuits caused project delays. Now, as Annika summarised for us, of the 19 decided judicial review cases pursued by citizens and 12 decided enforcement cases pursued by citizens that related to environmental matters, about 22.5% of them were successful. Now, that’s not the highest success rate but it’s also not so low as to suggest that these cases are baseless or frivolous or that they’re being pursued for some anterior purpose like slowing down projects. Really, that success rate indicates that these matters are matters of genuine concern and there’s usually a genuine basis for these claims. Now, if you’d like to look further into this study and have a look at its methodology and some of the other findings it made, we’ll leave a link to the report in the show notes. We saw very low rates of vexatious litigation. We saw incredibly low rates of the use of interim injunction, in fact, it was half the rate of general interlocutory applications that are made across the Federal Court. And finally, the big finding, is that this litigation doesn’t have an impact on the economic viability of the projects that are being disputed. Ultimately, proponents could go ahead and they could go ahead confident that a court case had occurred and that the judiciary had now affirmed that the Minister’s decision had been made correctly and according to power, and that there was a really solid approval process underpinning the project. |
| DT: 23:00 | I suppose the other thing that would be the hallmark of whether litigation was conducted vexatiously or frivolously, would be whether there was a disproportionate amount of strike out applications that were successful in those sorts of matters but did your research identify a disproportionate amount of strikeouts? |
| AR:
24:00 | We didn’t look specifically at whether all of the pleadings had been struck out on any basis, but certainly on the discrete issue of whether or not it’s vexatious and a particular pleading or the entire case should be dismissed as vexatious, we found it only occurred in 3 cases out of the full 32 and in all three of those cases it was an individual who was not represented, didn’t have legal representation and who was fighting in a local matter and ultimately, they were fighting against a local council or other government bodies about very local issues and the Court recognised that in those circumstances a vexatious application was appropriate and those cases were discontinued. We saw incredibly low rates of the Minister for the Environment or the proponent, who was often a second respondent, even applying for the public interest litigation to be struck out as vexatious. So it shows that in the courtroom, at least, both the judge and the respondent, the Minister for the Environment or the proponent recognised that these are genuine cases most of the time, and they’re not actually making these applications. It seems that green lawfare sits very clearly in the political sphere of ideology and discussion rather than in the courtroom. |
| DT:
25:00 | And as you quite rightly say, those sorts of applications that are being dealt with on the basis that they’re vexatious or frivolous and being struck out for that basis, if those matters are being brought by a self represented litigant, I think any litigator in any field, not just environmental litigation but in commercial litigation, in mortgages and securities litigation, corporations list litigation, would be familiar with the phenomenon of self represented litigants not preparing pleadings or originating processes in a way that courts expect them to be prepared, and as you say, there is a real access to justice issue there because often those applications are struck out either because they’re incorrectly pleaded or because they appear to plead a frivolous or vexatious case, and that is really more of an issue of an inability to access competent legal advice rather than an ideologically driven desire to file vexatious litigation. |
| AR:
26:00
27:00
28:00 | Yeah, and I think it really shows in the environmental space, these vexatious cases were really about individuals who were incredibly passionate about their local environment and I think we can be generous enough to give credit where credit is due, that that passion is really valuable when it comes to our community fighting on local issues, whether its environmental, whether it’s about local school safety. It’s great that we have members of the public that can come forward and be so vocal about the local area and ensuring that it’s protected and that’s why we have vexatious litigation rules to ensure that that passion doesn’t disrupt an entire legal system. And there is definitely an access to justice issue there about legal representations of genuine cases, but I think it also shows that when a case is vexatious, the court is willing to strike it out and it shows that extended standing or open standing provisions would not ruin the court process for environmental matters because the courts are safeguards of their own courtrooms. A judge is not going to abide by a vexatious case for very long. They’re very willing to kick them out, and I think that’s a really positive finding, actually, in our research is that the courts are working the way they’re supposed to. The Federal Court procedural rules are there, they have mechanisms to ensure that vexatious litigation is not taking up legal system resources and that genuine cases are being given the time and energy that they deserve. TIP: Now, for those of our listeners who aren’t litigators, vexatious litigation is a legal action which might be seen to harass another party. Now, it can take the form of just a single claim, but it’s most often where a litigant repeatedly files meritless motions and originating processes, wasting precious Court time and of course, that’s viewed very unfavourably by the Court. Now, in the context of environmental litigation, it’s frequently argued that frivolous cases are taken against big infrastructure projects just to delay them, which could be considered vexatious. Now, as Annika said, where it is found that these cases have merit, it can’t be argued that they’re simply pursued for the purposes of clogging up the Court or slowing up projects. Now, Annika also mentioned the Federal Court Procedural Rules. The provisions instructing the Court on how to deal with vexatious litigants is set out in Part VAAA – got to love these legislative numbering rules – of the Federal Court of Australia Act 1976 (Cth). Section 37AO – again, love the numbering – of the Act gives the Court the power to dismiss the proceedings and prohibit further claims being filed if they consider that the proceedings are vexatious. Now, as Annika pointed out, there’s not a particularly high rate of public interest environmental cases being thrown out under section 37AO and, for this reason, at least in the eyes of the Court, such cases seem to have merit beyond just subduing or slowing down the other party. |
| DT: | Now, you mentioned open standing a couple of times as an alternative to extended standing. Can you tell us what the difference between those two are? I know you mentioned that the New South Wales Land and Environment Court, for example, has open standing rules. |
| AR:
29:00
30:00 | Yeah, so open standing is basically anyone can bring a matter to court. There’s no need to prove that you are an aggrieved person or a person with a special interest in the case or, under the EPBC Act, that you’ve done any kind of environmental advocacy in the last two years. It basically just opens the gates to anyone and there’s a lot of resistance to open standing in political circles because there is this idea that there will be a flood of litigation as a result of open standing, but really, what open standing does is it removes one of the complexities of a judicial review case. All those standing provisions and the special interest test fall away. You don’t need to make pleadings about them. You don’t need to argue it out. You don’t need to spend lots of money or lawyers money on figuring that part of the case out, and it means that you can move on to the meat of the matter and in the Land and Environment Court, although I don’t have the stats in front of me, there has not been a flood of vexatious litigation or even genuine litigation that has arisen out of the open standing. It’s reduced complexities on these cases and it’s made it more accessible for people to contemplate going to court to enforce their rights or to engage in public interest litigation. There are definitely other very major accessibility issues with litigation anyway that are a deterrent. It’s very expensive and so open standing isn’t going to be the massive issue that it’s sometimes talked about. In fact, it could increase accessibility. |
| DT: | I can’t imagine that for an individual or a not for profit organisation contemplating litigation that their first thought is do I have standing under the Act. It’s far more likely to be: do I have deep enough pockets? You’re absolutely right. The practical barriers to litigation are far more challenging than the legal one. And if, as your research has kind of born out, the extended standing provisions are fairly easy to satisfy in the first place, you wouldn’t think that there would be a great difference in outcomes, at least in terms of a negative effect as a result of adopting open standing in place of extended standing. |
| AR: 31:00
32:00 | Yeah, I can’t imagine practically that you would have a major difference in the rates of cases under the EPBC Act if you move to open standing as we’ve outlined earlier, all you had to have done is some kind of environmental advocacy in the two years leading up to a case and I can’t imagine someone turning around the morning of filing going ‘Oh yeah, I care about the environment’ and just decided to do that out of the blue. It comes from organisations that are deeply involved in the space, but I think you’ve touched on a really important point David, about the real practical barriers to litigation and one of the things that we did find in our research that we are now pursuing subsequent work on, is that the rates of interlocutory injunctions were incredibly low, particularly for NGOs, only 8% of the cases brought by NGOs involved any kind of injunctive applications, and we really think that it highlights that things like security for costs and undertakings as to damages are real, practical barriers to organisations acting in the public interest rather than for their own monetary gain. And we do have to be sympathetic, if you’re a company and you’re bleeding capital as you’re waiting for a court case to be done, and an injunction can be a real issue, but equally, we’ve had several high profile cases. There’s been several cases against VicForests in Victoria about potentially illegal logging of habitat of critically endangered and endangered species and in those circumstances, we do really have to question whether security for costs or undertakings as damages whether those are fair, when what the NGO is fighting for is potentially the entire viability of a species or a matter of national environmental significance and whether those areas also need reform to support public interest environmental litigation. |
| DT: 33:00 | Mmmm, I suppose you could imagine a model for that in the same way that impecuniosity is, as a matter of principle, no bar to an individual pursuing litigation – even if a person is impecunious, they can’t be required to profit security for costs as a plaintiff, for example, because impecuniosity is no bar, at least for the individual. You could conceive of a similar model I suppose, for interlocutory relief. It’s so interesting that you say that because I think a lot of advocates would think that almost the stereotypical example of an urgent interlocutory application is the precious redwoods, or the Daintree being bulldozed tomorrow and so you have to go and see the judge in Chambers late on Friday evening. And it’s interesting that in that scenario that’s actually one of the least likely scenarios in which you’re going to see a successful interlocutory application for an injunction or even see the application at all. |
| AR: 34:00
35:00 | Yeah, it is a real shame and it was a bit of a disappointment to be seeing those rates come out because you’d read the meat of the case about a threatened species or the Great Barrier Reef came up a couple of times and you think to yourself ‘oh, I really hope that there’s been some kind of interlocutory application to ensure that something priceless is not lost during proceedings’ and then inevitably, you go through the full file that you see that no, unfortunately, the NGO didn’t have deep enough pockets to do that. As I said, one of our findings was the economic viability of the projects wasn’t impacted, and so projects were able to go ahead and I think that does highlight that in public interest environmental litigation so often a court victory is a pyrrhic victory. You may still lose all of the land that was going to be bulldozed, it still gets bulldozed either during court proceedings or the day after, and you would have pumped enormous money into a court case that was about promoting the interests of the environment for all of our current generation and all future generations and that’s been lost, and I think it does highlight that judicial review has a very positive role to play in government accountability, in ensuring that people perceive our environmental decisions as being made in a proper and not corrupt manner, but that ultimately a merits review process would also be really valuable under the EPBC Act. We see that in other jurisdictions in New South Wales and Queensland and that better allows us to balance environmental and economic interest. No one’s saying end of development, development is very important, but I think we can all agree that there are ways to go about development that are sustainable and having safety valves in our planning and environmental impact assessment approval system really helps contribute to sustainability. |
| DT: | Absolutely. I want to turn now to some of your other policy work that GreenLaw has been doing in your future communities stream and that’s around the adoption of community scale battery technology in the ACT. Now this is quite an interesting area because there is some current legislative or regulatory landscape for battery adoption in the ACT. Can you tell us a little bit about that? |
| AR: 36:00
37:00
38:00 | So energy law is a little bit complicated because it is split between so many jurisdictions. In the ACT, energy is under the national energy market which is jointly managed by a number of States and territories through the Australian Energy Regulator and the Australian Energy Market Operator. So in the ACT you have all of that regulation that needs to be navigated when it comes to changing your energy mix but the ACT has also created some incentives at an ACT state level, and so those incentives are really around the uptake of batteries. There is the next generation energy storage programme to promote battery energy storage systems in the ACT at a household and business level which is currently a policy, and funding programme. It hasn’t been legislated, which is a shame and there is also support for a Canberra big battery which will provide 250 megawatts of power and put downward pressure on electricity prices in the ACT which is currently being procured by the ACT government. So if anyone has a battery lying around go get involved in the tendering process. The ACT has previously had a fit scheme and they support renewable energy generally. They also do have legislated energy emissions reduction targets which are enshrined in the Climate Change and Greenhouse Gas Reduction Act 2010, if anyone wants some light Saturday reading. So it’s a bit of a full landscape, in some ways, and there’s been a lot of push for the adoption of innovative renewable technologies in the ACT to really drive that emissions reduction. TIP: Legislators in the Australian Capital Territory have taken some really important steps toward combating climate change. The Climate Change and Greenhouse Gas Reductions Act 2010 (ACT) legislates specific energy emission targets for the territory. These include reaching net zero net greenhouse gas emissions by 30 June 2045 and 2 targets which the territory’s already achieved. First, the Act set out to reduce greenhouse gas emissions to 40% less than the emissions in 1990 by 30 June 2020. In fact, by the end of 2020, greenhouse gas emissions in the ACT had reduced by 45% compared to those 1990 levels. The Act also set a target of the territory using 100% renewable electricity from the 1st of January 2020. Now, this target was achieved which made the ACT the first state or territory in Australia and, in fact, the first state outside of the EU, to run entirely on renewable electricity. |
| DT: | And what were your policy recommendations in terms of making changes to the current regulatory landscape for battery adoption? |
| AR:
39:00
40:00 | The heart of our recommendations were aimed at promoting community scale batteries and doing so in an equitable manner. So currently, as I kind of alluded to, a lot of the incentives, the ACT government has are aimed at either household batteries or at very large commercial scale batteries and both of those have a role to play, but we really miss out on that middle ground battery which can service a neighbourhood and so we really want to see the next generation battery scheme be reformed to be able to help incentivise community scale batteries that are a little bit larger and that by their nature are going to be more sustainable because you’re using less resources, you’re replacing them less often than household batteries, they’re more capable of being owned under community ownership models, so it’s more equitable, and it helps poorer households reap the dividends of renewable energy in a way that individual household batteries don’t. And so that’s one of the things that we really want to see the ACT government look at is community scale batteries as a way of firming up the renewable energy mix in the ACT. And the other part of our recommendation was really about bolstering community information and power in this space. So community energy is really complicated area to get involved in. I’m certainly no expert in it, but you’re navigating lots of different legislation. You’re navigating different ownership models which all have their own regulations, and there’s a tax regime associated with it and we want to see the ACT government invest in information hubs that allow the community to get together and engage in community energy projects where they can enjoy the benefits of community energy and getting involved in doing it and then reap those economic dividends, those emissions dividends and cleaner neighbourhoods altogether. |
| DT: | One of the really interesting issues that I see coming out of some of the policy work that GreenLaw has been doing is this idea of an implied right to a healthy environment, and that’s a read-in to the ACT Human Rights Act. Can you tell me a little bit more about that read-in or that implied right? |
| AR: 41:00
42:00 | Yeah, so one of the things we’ve really pushed in our community scale battery submission was that we need human rights lens to energy innovation in the ACT and in fact after COP 26 with the ‘technology not taxes’ slogan and all of the discussion of carbon capture and storage, I think we can apply this lesson to all of Australia. Yes, technology will get us quite a bit of the way there with emissions reduction but we have to make sure that the way we roll out that technology is done in an equitable and human rights conscious way so that we’re not contributing to ongoing systemic injustices. One of the most exciting things about climate action is that we have the once in a century opportunity to reimagine our entire society and economy. So let’s go beyond Carbon Zero and let’s do it in a way that’s also going to resolve racial injustice and the fact that pollution is often concentrated in poorer neighbourhoods and neighbourhoods that are more racially diverse. Let’s address that issue as well. So that’s kind of the background for why we wanted to talk about a right to a healthy environment in the ACT Human Rights Act. And basically the rightful healthy environment is a little bit nebulous. It was recently recognised in October of this year at the Human Rights Council in its 48th session as a standalone human right. But when we were doing our policy research, it wasn’t a stand alone right yet. But we argued that you could imply it into the ACT Human Rights Act through the right to life, so the right to life isn’t trained in the ACT Human Rights Act and the right to life is a very expansive right. It’s not just about freedom from being killed in warfare or from being killed by a natural disaster. It’s freedom from a degraded life. It’s about life and dignity, and so a precondition for that is a beautiful, clean environment where you have water that you can drink, where you have food that you can eat, where your energy is not polluting and giving you respiratory diseases like we know unfortunately happens with so much of our coal fired and gas fired power. |
| DT: | What would some of the practical implications be of an implied right to a healthy environment in the ACT Human Rights Act? |
| AR: 43:00
44:00
45:00
46:00 | So it is very much an implied right, unfortunately. The way we went about arguing it’s implied into the Act is to say you’ve got this section; section 9 – the right to life. You interpret all of the rights in the Human Rights Act through international jurisprudence in their ordinary meaning, which is section 31. And so there’s this recent international jurisprudence; General Comment No. 36, by the HRC that talks about the fact that climate change is a threat to the right to life. TIP: Ok, this is an interesting argument, so let’s break it down. Section 9 of the Human Rights Act 2004 (ACT), and I’ll pause there to remind you that we don’t have a Commonwealth Human Rights Act and, in fact, most states in Australia don’t have a Human Rights Act, but the ACT Human Rights Act states that, from birth, “everyone has the right to life. In particular, no-one may be arbitrarily deprived of life.” Now, this local legislative provision incorporates the language of article 6 of the International Covenant on Civil and Political Rights (ICCPR), a covenant to which the Commonwealth of Australia is a signatory. As Annika says, section 31 requires that provisions of the Act be interpreted with reference to international jurisprudence, in order to add more colour and background when interpreting the meaning of the ACT law. This means that it might be relevant in interpreting the ACT legislation to look at things like decisions about or opinions about the interpretation of the ICCPR. Now, in 2018, the UN Human Rights Committee published a number of comments about the International Covenant on Civil and Political Rights, including article 6. Now, in those comments, the UN Human Rights Committee suggested that the right to life was inherently linked to environmental concerns like climate change, and subsequently that such concerns really should inform signatories’, like Australia’s, obligations under article 6. Annika and GreenLaw have used this piece of international jurisprudence to inform their work on the local ACT legislation. So we read all of that into section 9 and say there’s a bit of a content of an implied right to a healthy environment in ACT law through there. Which is, I think, a very powerful argument and a very symbolic argument about how expansive the right to life really is but does it have practical impacts on the ground? I think many of us in the legal profession often sit in the legal system and go ‘wow, legally, this is what we can argue, but is it the reality?’ And I think ultimately, unfortunately the ACT Human Rights Act is not incredibly accessible for people, and I’m sure we can talk about that a bit more, David, but it’s unlikely that an ordinary person is going to be able to ventilate their rights really easily under the act, and it’s even less likely that the Supreme Court of the ACT would say that the right to life has been violated on environmental grounds in the ACT. We’re talking, unfortunately, a pretty high bar for the right to life to be violated. You want any imminent threat to the right to life from environmental harm, so it would have to be another terrible bushfire season, for example, and someone who was harmed from that and saying that the ACT government hadn’t appropriately protected their right to life through environmental protections. And I think that really shows us that we need a standalone right to a healthy environment enshrined in law because people shouldn’t have to be left exposed to severe environmental harms before human rights law intervenes. |
| DT:
47:00 | Mmm, because there’s a real practical difficulty, isn’t there, that if it’s implied in the right to life, then it’s difficult to delineate between, on the one hand, a kind of existential threat to the right to life, like the climate crisis globally, and some of the, not to minimise them but, of lesser order style right to a healthy environment condition like air quality for example that might not be an imminent threat to life, but might impact our cognitive performance or our respiratory health, or just the enjoyment of our public spaces. You’re actually doing some work with Australian Lawyers for Human Rights and the Conservation Council on enshrining the right to a healthy environment in the Act. Can you tell us a bit about that project? |
| AR:
48:00 | Yeah, so it’s in very early stages, so if anyone is very keen to get involved please feel free to email in, but we’re working with Australian Lawyers for Human Rights and the Conservation Council for the ACT to really explore what the content of the right to a healthy environment is in international law in other domestic jurisdictions. And then to explore options for getting it enshrined in the ACT Human Rights Act. So that will be a process that will go on likely for the next year and please stay tuned for a campaign launch in the next couple of months because we are really excited to start talking about the environment and human rights in a very, very substantive way. I think much of my work at GreenLaw has really showed me that the environmental space is not a restricted niche area. It underpins all of the legal work we do and the substance of having a life and dignity and so it’s fantastic to be getting started on a project and exploring how we can get that enshrined in law. |
| DT: | It’ll be really interesting to see how that project pans out. I suppose one thing that I’m thinking of as a New South Wales resident is that the ACT is one of the few Australian jurisdictions that actually has a statutory human rights framework. We certainly don’t have one at a Commonwealth level, and most states, I think it’s only the ACT and Victoria. |
| AR: | And recently Queensland, 2019. Yeah. |
| DT: | Really? There you go. Well, except for those three, there isn’t a statutory human rights framework anywhere else in the Commonwealth. How important is it to pursuing public interest litigation or responding to threats to biodiversity and a healthy environment that there be a statutory framework for human rights? |
| AR:
49:00
50:00 | I think it would be fantastic if other Australian jurisdictions picked up a Human Rights Actframework, and, in fact, I think Australian Lawyers for Human Rights have a series of campaigns about various state acts, so if that’s something you’re passionate about, go for it, because I really think that human rights, law and other substantive laws that are about the protection of our quality of life, of our dignity are so incredibly important when it comes to looking at biodiversity in the environment. TIP: Australian Lawyers for Human Rights (ALHR) have various campaigns that encourage Australian states to enact their own human rights legislation. In NSW, the ALHR is running the ‘Human Rights Act for NSW’ campaign, pressing the NSW Government to pass human rights legislation, the same way that Victoria, Queensland and the ACT have. I think everyone listening can imagine a moment in the last two years, three years where environmental degradation has significantly impacted your life. I’m thinking immediately of the 2019-2020 bushfires. I spent a month there in Canberra with some of the worst air quality in the world. I was going to sleep at night with a gas mask over my face… |
| DT: | Wow |
| AR:
51:00 | … and that’s really an impact on my quality of life. The environment is not a disconnected planning approvals process that’s happening over yonder. It’s the very environment that we’re all in right now. It’s the air that we’re breathing. It’s the food that we had for breakfast and the food that we will have for dinner. So I think it’s so important that we have a human rights framework when we look at environmental matters because it allows our environmental advocates, policy advisors, even people working in the commercial space in the corporate space to get at the substance of why we need to be protecting biodiversity. Why we need to have a responsible corporate approach to our environment when it comes to developments. Because ultimately what we’ve really seen in the last two decades is that judicial review, proceedings or procedural environmental court cases don’t deliver the substantive outcomes that we want to see and that we need to see as we enter this really critical decade of tackling the climate crisis. What we need to see in the courts and in our law reform is a recognition that our environment underpins all human well being and economic prosperity. |
| DT: | Now before we finish up, I wanted to ask you about some of your current projects because I think at the time of recording there’s a project that’s a little bit under wraps that at the time of publication will be quite newly published by GreenLaw and Monads Partners. Can you tell me a little bit about that project? |
| AR:
52:00 | Yeah. So very excitingly, we’ve been commissioned by the Australian Conservation Foundation to undertake an empirical review into how climate change impacts are managed for Australia’s critically endangered species under the EPBC Act. Can’t get enough of the EPBC Act, basically, and it’s an incredible project that really gets at the heart of sustainable threatened species management and recognising that we are advocating for a just transition and to rapidly reduce emissions, and that is critical, but we’ve already experienced 1.4 degrees of warming in Australia and that will likely increase, and so climate adaptation and climate mitigation for our critically endangered species is essential to ensuring that they are there for us to enjoy for our children to enjoy, to be part of their ecosystems and flourish, and so it was an empirical project where we looked at every single recovery plan and conservation advice of all critically endangered species, all 334 of them as of July 2021, when we did the research. And what we found is that unfortunately, climate change impacts are not being appropriately managed by the Federal Government, and I think it really shows us that we have a real responsibility to turn our attention to non-human species as well in the climate crisis and ensure that we are managing them in a way that is sustainable. |
| DT: 53:00 | It’ll be really interesting to see that research when it is published, which I believe should be just before this episode is published, so listeners in the future that I’m speaking to now go ahead and look for that after you finish this episode and Annika, if one of our listeners wanted to get involved with a project that GreenLaw’s doing, wanted to help with some research or some policy work, how would they do that? |
| AR: | Well, we would very much welcome people to get involved. In particular, we are aimed at law students or early career professionals or academics. So if you are a young person, please do get in contact. We have some projects in negotiation right now about a climate change duty of care and about the phase out of gas across Australia, those are some of the big things that we’re looking at right now. So if that excites you or you have expertise in that area, please get in touch. Our email is green_law@outlook.com which I’m sure David will also put up somewhere for people to see. |
| DT: | That’ll be in the show notes for the episode. |
| AR: 54:00 | There we go and feel free to just send in an email saying ‘hi, I’m interested in getting involved.’ GreenLaw is an expansive network of people. We’re not restricted or elitist in who can get involved. Ultimately a just transition tackling the climate crisis involves all of us and all of our varied expertise and passions, and we’re really excited to bolster other people up and to get involved in GreenLaw in a way that achieves your vision of climate justice. |
| DT: | That’s fantastic. Well, Annika. I’ve really enjoyed talking to you about the fascinating and important work that GreenLaw’s doing. So Annika Reynolds, thanks so much for joining me today on Hearsay. |
| AR: | Thank you so much David. It was an absolute pleasure. |
| DT:
55:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank my guest today, Annika Reynolds from GreenLaw, for coming on the show. Now, we just recently released another episode of Hearsay that’s all about planning law, which overlaps nicely with environmental law. So, why don’t you give that one a try. It’s an interview with UNSW academic Amelia Thorpe and it’s episode 50 of Hearsay. If you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Now, whether an activity entitles you to claim a CPD unit is, as you well know, self assessed, but we suggest this episode entitles you to claim a substantive law point. More information on claiming and tracking your points on Hearsay can be found on our website. It’s March. That’s it, crunch time is officially here. Now, remember, if your friends are in need of some points, tell them about Hearsay and they can get 25% off an individual Hearsay subscription with the code referee2022 at the checkout. Hearsay the Legal Podcast is brought to you by Lext Australia, a legal innovation company that’s out to change how you experience the law and legal services, and that includes CPD. I’d like to ask you a favour, listeners. If you like Hearsay the Legal Podcast, please leave us a Google review. It helps other listeners find us and that keeps us in business. Thanks for listening and I’ll see you on the next episode of Hearsay.
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