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Editorial: Dec 2006- Jan 2007
Green judiciary a looming menace to
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
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
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
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
vThe 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
Otherwise, for many workers, Preston’s ‘paradigm shift’ will mean a
slide to stagnation, unemployment and the welfare scrapheap.