The value of judicial activism
in promoting climate resilience
I
Amelia Smillie
t is an incontestable fact that climate change will have a substantial impact on the global environment, and consequently, society. This is already being felt, with an increase in the frequency and intensity of natural disasters such as droughts, flooding, storms and bushfires. Other symptoms are of longer duration, including a rise in sea levels and an increase in temperatures causing variations to local ecosystems and impacting the liveability of many cities. Climate resilience is the ability to anticipate, prepare for, and respond to extreme weather events and/or natural disasters caused directly or indirectly by the change in climate. In Australia, it is imperative that the government at every level understand these risks and adapt their decision making to become more climate resilient. However, if the most severe effects of global heating are to be avoided, other institutions, including the judiciary, have a role to play. The Land and Environment Court of NSW is leading the way in promoting climate change resilience, prompting consideration of the value of judicial activism. 16 | The Brief
Traditionally, the norm of judicial interpretation in common law countries has been strict formalism. Sir Owen Dixon, an eminent High Court Chief Justice, famously stated ‘there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’. The value of black letter legal decision making is strong. The principle of responsible government is predicated upon the notion that decisions are made by democratically elected who have been democratically elected. The safeguard to prohibit their tyranny is that if they make disagreeable decisions, the people vote them out. As unelected representatives, this protection does not exist at the judicial level. Further, it is necessary for the integrity of the institution of law that the judiciary be seen as a political, unbiased adjudicator, a notion threatened by ostensible activism. Judicial activism is a highly contentious practice in Australia, often polarised linear to political factionalism. Whilst most note with approval the activism of the High Court in Mabo v Queensland (No 2) that overturned the prevailing legal fiction of terra nulllius, judicial Ed.1 2021
