Editorial: Dec 2006 - Jan 2007                                        

           Green judiciary a looming menace to workers

If you believe judges should decide every case on its merits, if you believe this is an essential feature of the judicial function, be concerned. If you believe judges should not be unduly influenced by their own socio-political preferences, sound the alarm. ‘Laws will only get greener, warns judge’ ran the Sydney Morning Herald’s headline. Not only did he escape criticism, but Justice Brian Preston, Chief Judge of the NSW Land and Environment Court, was celebrated after he told a recent National Trust breakfast ‘the principles of ecologically sustainable development’ were ‘here to stay’.

‘These principles, if implemented, may ultimately realise a paradigm shift’, announced Justice Preston, ‘from a world in which the development of the environment occurs without regard to the environmental consequences, to one where a culture of sustainability extends to government, private development interests, communities and individuals’.

Don’t mistake this for idle speculation. The address was delivered shortly before his subordinate, Judge Nicola Pain, handed down her now famous, or perhaps infamous, decision to obstruct approval of a coal mine at Anvil Hill in NSW’s Hunter Valley. For the first time, a development proposal was questioned because planning authorities failed to consider the impacts of greenhouse gas emissions.

Few understand that our planning laws relating to approval of industrial and infrastructure projects - key drivers of economic growth - are undergoing a quiet revolution. Mostly, this revolution is being prosecuted away from the public gaze - in textbooks, lecture theatres, professional journals, conference papers, bureaucratic regulations, obscure legislation and court cases.

Yet the implications of this juggernaut for blue-collar or semi-skilled and unskilled jobs growth in Australia are potentially devastating.

Justice Preston is a zealous apostle of the ‘ecologically sustainable development’ or ESD creed received from on high at the UN’s Rio Earth Summit in 1992. For him this collection of principles represents the common legal inheritance of peoples all over the world, whether they like it or not.

The Anvil Hill coup wouldn’t have surprised the gathering who heard his exposition of ESD principles at the National Trust breakfast. He was unnervingly frank. ‘If there are threats of serious or irreversible environmental damage’, he said while defining the precautionary principle, third of 6 basic ESD concepts, ‘lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.’ Justice Preston proceeded to explain how the nebulous phrase ‘lack of full scientific certainty’ should work in practise: ‘The condition will be fulfilled when empirical data (as opposed to simple hypothesis, speculation or intuition) make it reasonable to envisage a scenario, even if it does not enjoy unanimous scientific support [emphasis added]’.

The striking thing about this formulation is how far it departs from conventional common law standards of proof. Clearly, the standard traditionally used in civil jurisdictions - proof on the balance of probabilities - isn’t much use to environmentalists in the business of peddling the unprovable. Discussing Anvil Hill on the ABC Radio’s Counterpoint program, Jennifer Marohasy put it succinctly:

Think for a minute what fraction of a per cent coal from [the Anvil Hill] mine would constitute relative to all coal mined and burned in all the world not forgetting industry growth. For example, every 10 days a new coal-fired power station opens somewhere in China … In short, given the many and growing sources of greenhouse gas emissions, the uncertainties in carbon accounting and the models, it is simply not possible to calculate the likely environmental impact of the Anvil Hill mine on climate yet this is what the law, at least in NSW, now seems to expect.

Marohasy is right about the impossibility of linking Anvil Hill coal to environmental degradation, but not about NSW law - it expects far less than proof or calculation. Justice Preston thinks degradation need only be ‘envisaged’. Of course, all sorts of things can be envisaged, and activist judges like Preston and Pain are capable of envisaging the worst.

Both were longtime activist lawyers and officials with the Environmental Defender’s Office (NSW) before appointment to the bench.

And that isn’t the end of it. According to the precautionary principle, said Justice Preston, ‘the burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the development plan, program or project’. This is another significant departure from conventional rules of evidence. Traditionally, the party bringing a civil action bears the onus of proving his or her case. Reversal of this burden is usually unjust, and especially pernicious in cases like Anvil Hill. Developers now bear the burden of disproving something that just isn’t susceptible to proof.

This new green jurisprudence shares little of the common law’s traditional reverence for logic, evidence and precedent.

How faithful was Judge Pain to her boss’s radical ESD blueprint? Gray v The Minister for Planning and Ors wasn’t about approval of the mine as such, but the preliminary issue of whether the Director-General of planning was right to accept the developer’s environmental assessment. Up to this point, legislative instruments governing the content of such assessments were not considered to require examination of so-called ‘scope 3 emissions’, or emissions by third parties (like purchasers of the coal). The developer’s assessment didn’t address these and the Director-General acquiesced. This caught the eye of Peter Gray, a 24 year old classics student and local environmental activist, who launched the action.

The judge had to decide whether to send the developer, Centennial Hunter, back to the drawing board. Inevitably, she found that the Director-General failed to properly apply the precautionary principle. Without referring to a skerrick of scientific or technical evidence, Judge Pain observed blandly ‘that there is a clear connection between climate change/global warming resulting in possibly permanent climatic change and the conservation of biological diversity and ecological integrity which are likely to be impacted upon’. Difficulties like those raised by Marohasy didn’t rate a mention. On this basis the Director-General’s decision was nullified.

How was that possible? Simply because Judge Pain thought the Director-General should have envisaged - though she doesn’t use that word - the prospect of environmental degradation arising from ‘downstream GHG (greenhouse gas) impacts.’

While the Anvil Hill mine is likely to proceed, this judgment shouldn’t be underestimated. It represents the first step in a long journey. The question is whether the interests of a democratic polity are served when such far-reaching changes are engineered by unelected judges. The discretion exercised by Judge Pain was so wide as to take on a political, as opposed to a strictly judicial, dimension. None of this troubles Preston, however. ‘The role of the judiciary in relation to the law of sustainable development is thus of the greatest importance’, he told a recent seminar. Further, ‘the law on sustainable development is gaining momentum at local, national, regional, and international levels.’ It’s full steam ahead.

Ironically, progressive commentators, who get so excited about threats to democracy from anti-terrorism measures, are relaxed about the prospect of unelected judges threatening whole industries, regions and classes of workers. For these are what is at stake.

Our resources sector is booming due to voracious demand from Asia, particularly China. Mining and associated industries like freight transport, stevedoring, warehousing and storage, engineering and construction have absorbed some of the labour shed by low-tech manufacturing, which faces formidable challenges. A combination of the strong dollar (raising the price of exports and reducing competing import prices), competition from Asia (where labour is cheap and abundant) and capital flows to resource-rich regions have hamstrung this type of manufacturing. This is true even of NSW, where resources amount to a much smaller proportion of the state economy than Queensland and Western Australia. The resources boom has given working communities all over the country a chance to share in the general prosperity and a decent future for their families.

For thousands of blue-collar or semi-skilled and unskilled workers, the alternative is welfare dependency. In a noted speech last May, Treasury Secretary Ken Henry analysed these structural trends and advised policymakers not to disrupt them:

But even more pronounced has been China’s impact on the price of energy and of commodities in general. Commodity price developments are affecting all economies. For some, like our own, the immediate consequence is extraordinarily high terms-of-trade …

The model tells us that if the terms of trade remain at high levels, not only will the resources sector command more capital and labour, manufacturing and other industries whose relative output prices are declining will command less, even as our stock of capital expands. Furthermore, as the factors of production are reallocated, the pattern of growth will be characteristic of what is often referred to as a ‘two speed economy’ …

If … the terms of trade improvement does turn out to be long-lived, then the best thing policy will have been able to do is to ensure that the reallocation of resources required to maximise national income at those terms of trade proceeds with minimal disruption.

Yet disruption is precisely what environmentalists, including Preston and Pain, have in mind. From this perspective, their campaign should be seen for what it is - an assault on Australian workers. There is no ESD principle, it seems, no precautionary principle to save workers from ‘degradation’. The renewed opposition to mining operations, whether coal or uranium, has built up a head of steam because the ultimate losers are blue-collar families. If the losers were middle-class professionals, the story would be different.

The government must act to bring Justice Preston’s momentum to a halt. Planning Minister Frank Sartor should appeal the Anvil Hill decision, if the prospects are good, and go further. The Environmental Planning and Assessment Act, along with associated instruments, should be amended to exclude ‘scope 3 emissions’ from the issues to be considered by environmental assessments and the Director-General. While they’re at it, the government should review its processes for appointing judges, especially to the Land and Environment Court.

Otherwise, for many workers, Preston’s ‘paradigm shift’ will mean a slide to stagnation, unemployment and the welfare scrapheap.

 TNC  19 December 2006              Like to respond?                                 Top