Who needs parliament to make laws when there are clever judges who reckon they can do a far better job without having to put up with the inconvenience of having to be democratically elected and accountable for their actions by risking the sack at the ballot box every three or four years? But when judges, like NSW Land and Environment chief judge Brian Preston choose to enter a highly controversial political law-making arena, they leave the privileged state of judges being a protected species; they have to cop justified political attack on their political pontificating – in this case a wordy exposition of the need to sacrifice Australia’s economic future and export income on the altar of climate change.
In a series of assertions more appropriate to his previous role as founder and principal solicitor of the NSW Environmental Defender’s Office (in whose favour he unsurprisingly decided in last week’s controversial coal mine-banning judgement), Preston CJ determined that the project should be refused because it would have increased global total concentrations of greenhouse gasses ‘at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in such emissions’. These CO2 emissions are such a threat to the world that ‘most fossil fuel reserves will need to remain in the ground unburned’. So global warming reasons alone (but also quoting reasonable local environmental and social grounds) justified the ban on the proposal to mine not steaming coal that is burnt to generate electricity and is targeted by renewables, but, in an unprecedented decision, coking coal to be used overseas as a key element in steel-making processes.
Yet there is no Commonwealth or state legislation on which such a determination can properly be based; there are no Australian legislative prohibitions on steel-making coal emissions, domestic or foreign, in the name of climate change. The court itself has admitted that Australia has not expressly adopted international environmental laws domestically; our Paris Agreement to limit emissions has no backing legislation to enforce what are no more than undertakings with details only of where, but not how, they should be achieved. The same goes for the ‘purely aspirational’ NSW state government aim of nil net emissions by 2050. So the court’s activism, in the absence of expression of evident public support through the democratic process, fails to meet the test of ‘political viability and moral acceptability’ that Preston CJ says he seeks.
This judicial activism would have come as no surprise to those who heard the CJ’s speech on his appointment by Labor Attorney-General Bob Debus as head of this bench 13 years ago. He then saw the court’s role as not simply to implement the law; ‘it develops the law itself… to engage with and to explicate emerging international concepts and principles…to articulate mechanisms for translating these laudable principles (like ecologically sustainable development) into specific actions… developing key concepts in the law.’ So even if the parliament chooses not to do so, the Preston bench reckons ‘there is a palpable and growing expectation in the Australian public’ that to protect the world from global warming it has the right to by-pass elected governments.
The chief judge is not the only member of his court to have entered the political arena. Fellow Labor-appointee Justice Rachel Pepper described the Coalition government’s public concerns about continual legal delays to the Adani coal project as ‘engaging in conduct that has the very real prospect of undermining the rule of law and further eroding the public faith in our democratic system’ through what she claimed to have been a ‘concerted campaign to silence environmental advocates by debasing their entirely legitimate public interest environment litigation’, by the use of pejorative terms like ‘green lawfare’ and ‘vigilante litigation’. But, as fellow justice Nicola Pain has noted, Australia has the second highest rate of environmental litigation in the world – much of it sustained by third-party activist funding, including from overseas. The real risk of undermining the rule of law emerges when those laws are not the result of the democratic process but of ideology-based judicial activism.