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New judge-made law: coal kills kids

12 June 2021

9:00 AM

12 June 2021

9:00 AM

Yet another Australian activist judge, usurping the role of parliament in a democratic society, has given Lawfare’s economic saboteurs a new lease of life. If you thought that environmentalists’ abuse of the legal system in their mission to destroy fossil fuels, whatever the economic costs, was already excessive, you ain’t seen nothin’ yet. Federal Justice Mordecai Bromberg’s incredible 27 May determination that the Morrison government has a duty of care to protect Australian children from climate change devastation and death, requires that duty to be met before approving any further fossil fuel developments that add to CO2 emissions. It ushers in an unlimited round of legal battles aimed at destroying Australia’s biggest export earner (fossil fuels – coal, oil, LNG – together exceed iron ore) that are a key element in our post-Covid economic recovery. From now on, every governmental approval can be actionable under the common law for negligence on the basis that the ‘catastrophic climate change’ interests of children (unspecified as to age!) ‘have not been adequately taken into account’.

Although Whitehaven Coal welcomed Justice Bromberg’s decision to reject the injunction sought by an 86-year-old nun acting for eight teenagers to prevent the Morrison government approving an extension of its proposed mainly metalliferous steel-making coal mine near Gunnedah in NSW,  it is not over yet. The applicant’s lawyers say that ‘Bromberg indicated he would now take submissions before seeking further declarations about what the minister’s duty of care may mean for whether the mine extension should go ahead’.

It is now up to the government to decide how to cope with its newly determined and unprecedented duty of care when considering whether or not eventually to approve an application that has been in the process for five years. This ‘amazing and historic decision with potentially significant consequences’ was welcomed by environmental lawyers. ‘It is the first time in the world that such a duty of care requires that the minister must not act in a way that causes future harm from climate change to younger people. This recognition is especially significant in a common law country’, in opening the negligence door. But the nature of the Bromberg judgement raises other concerns.

Who needs Extinction Rebellion to terrorise the younger generation when we’ve got Justice Bromberg? In a departure from judicial restraint, Bromberg’s emotionally charged judgement said: ‘It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next’.

‘On the evidence before me, it is undoubtedly likely that some of the Children, and perhaps many hundreds or thousands of them, will be killed or injured by future climate change induced bushfires on the Australian continent…. That is particularly so in circumstances, which are also reasonably foreseeable, where bushfires induced by climate change will wipe off the face of the Earth most of Australia’s eastern eucalypt forests in a 4°C Future World. the wholesale destruction by fire of much of Australia’s forests in the latter part of this century. I am satisfied that each of the Children is exposed to a real risk of harm from bushfires. I am therefore satisfied that a reasonable person in the position of the Minister would foresee that, by reason of the effect of increased CO2 in the Earth’s atmosphere upon the increasing extent and ferocity of bushfires in Australia, each of the Children is exposed to a real risk of either death or personal injury from bushfires’. And to round off his disaster scenario, Bromberg added that it may be assumed that if severe flooding and extreme cyclones are more frequent or more severe, it is reasonably foreseeable that there will be some harm to some of the Children. ‘And it may be inferred that exposure to the risk of ill-health by reason of air pollution caused by climate change would be experienced in each of the major metropolitan cities of Australia…. I would conclude that a real risk is reasonably foreseeable in relation to some and probably large numbers of the Children…. To say that the Children are vulnerable is to understate their predicament. It is not merely the vulnerability of the Children which I find potent. It is also their innocence. They bear no responsibility for the unparalleled predicament which they now face. That innocence is also deserving of recognition and weight in a consideration of the relationship between the Children and the government they look to for protection’.

The basis on which Bromberg found that the children were at such climate change risk ‘of death or personal injury’ was the untested submissions of ‘expert witnesses’ provided by the plaintiffs; the Commonwealth successfully contested the injunction on other grounds – and now has to live with the consequences of Bromberg’s emotive acceptance of unchallenged alarmist global warming scenarios. But it is parliament, not the courts, that has the responsibility of determining the manner in which the nation may achieve its climate objectives. Bromberg’s alarmism totally ignores potential carbon offsets like the carbon capture and storage developments that the federal government is funding – and pretends that there is no worsening emissions impact if higher quality lower-emitting Australian coal is to be replaced in export markets by lower quality foreign product. As Henry Ergas argued in the Australian, ‘By elevating themselves into faux legislators who can grant the losers in political contest the victory voters have steadfastly refused, the courts not only shred their legitimacy, they blur the lines of accountability and undermine the legislative power the Constitution vests in parliament’.

But it may be churlish to criticise Justice Bromberg for usurping parliament’s role. After all, he is a frustrated parliamentarian, having unsuccessfully contested Labor preselection for the safe seat of Burke 20 years ago before being appointed to the Federal Court bench in 2009 by the Rudd Labor government. Perhaps he’s acquired more political power being on the Bench than he would have sitting on parliament’s benches.

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