PRESIDENT’S MESSAGE
The law as a tool to drive action on climate change REBECCA SANDFORD, PRESIDENT
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rowing up, one of my favourite poems was Dorothea Mackellar’s “My Country”. It is undeniably true that we live in a “sunburnt country”, full of beauty and terror (the latter especially so if you are, like me, an arachnophobe!) - but it’s also becoming hard to ignore that the “droughts and flooding rains” that sweep across this “wide brown land” now do so with increasing severity and frequency. Our horrendous bushfire season in 2020 was a clear signal that climate change is an issue significantly affecting Australia, which it seems is only going to get worse - and to be frank, time is running out for us to address it. Recent reports1 indicate it is almost certain that average global temperature rise over the next century will exceed 1.5C, and that this may even occur as soon as the 2030s. Focus is now shifting to trying to keep the rate of temperature rise this century to less than 2C, but Australia is being left behind when it comes to cutting greenhouse gas emissions, and in some quarters we are now regarded as the “global laggard” of developed countries in this respect - meaning we have further to go to even catch up, let alone lead, in this area. Quite apart from our global reputation, increased warming will specifically and seriously impact Australia, which is more susceptible to certain climate change impacts than other places in the world; already, at an average global temperature rise of 1.1C, we have experienced increased megafires, more powerful storms and increasingly severe droughts and heatwaves. Current research suggests that should global warming reach 3C (an outcome which looks increasingly possible even if serious action on climate change is taken now), we can expect far more megafires, over 250,000 Australian properties at risk of inundation from the rising of our “jewel-sea”, the death of the Great Barrier Reef, increasing tropical
diseases in southern cities and skyrocketing rates of death from heat stress. And that’s the optimistic position…! Of course, whilst Australia has particular vulnerabilities to bear in mind, the issue is a global one affecting everyone on the planet. From a legal perspective, concerned citizens are taking increasingly creative steps to ensure governments take the issue seriously - in Ireland, for example, environmental advocacy group ‘Friends of the Irish Environment’ (FIE) recently won a climate change lawsuit (known as Climate Case Ireland) against the Irish Government. The case alleged that Ireland had failed to take “adequate action” on climate change, and sought to hold the government accountable “for its role in knowingly contributing to dangerous levels of climate change” and failing to meet targets set in its National Mitigation Plan. It was the first case of its kind in Ireland and only the second in the world where a court held a government accountable to its greenhouse gas emissions targets, and as a result, the Irish government is now revising its national climate policy. In doing so, it could look to its neighbour Scotland, which has some of the most ambitious climate targets in the world after the Scottish parliament passed the Climate Change Bill in 2019, setting out a legally binding target of reaching net-zero emissions by 2045. Scottish ministers have committed to a target of at least 50% of energy demand for electricity, heat and transport across the country to be met by renewable energy generation by 2030. Though ambitious, this nonetheless seems achievable given that Scotland met 90.1% of its equivalent electricity consumption from renewables in 2019. Coming back home to our own “wilful, lavish land”, in mid-2020 Katta O’Donnell followed in FIE’s footsteps and is now leading a Federal Court class action against the Australian Federal
Government, asserting that investors trading in Australian government bonds face material risks from climate change which have not been disclosed by the Government, meaning it has breached its duty of disclosure and misled and deceived investors. The case is ongoing, but is the first of its kind in Australia, and certainly one to watch. Though Australia currently has a goal to reduce greenhouse gas emissions to 26–28 per cent below 2005 levels by 2030 and to achieve net zero emissions “preferably by 2050”, the rate of change to achieve this goal is slow and increasingly likely to be insufficient, given emissions have actually risen in Australia over the last 10 years. Comparatively, the US, UK and many European countries have reduced emissions over the last decade, and have publicly committed to much bolder targets going forward. Business is in many sectors moving ahead with net zero targets irrespective of government stances, and it is becoming progressively more likely that countries which are prioritising this issue will factor climate policies into trade arrangements into the future. The Law Council has “climate change” as one of its strategic policy focus areas for 2021, and has a working group which is currently considering the legal implications of climate change and developing a Law Council policy position about them. I’m closely following developments in this area - ultimately, legislation and regulation will be what drives change, and the role of lawyers in developing that framework is more critical than ever. Our “opal-hearted country” is far too precious for us to simply stand by. B
Endnotes 1 Climate Council of Australia, Aim High, Go Fast: Why Emissions Need to Plummet This Decade, (Report, 2021)
May 2021 THE BULLETIN
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