Environmental Update

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Intergenerational Equity – Duty of Care

A recent ABC Australian Story program highlighted the campaign of young second year ANU law student, and environmentalist, Anjali Sharma. Her ‘fight’ concerns climate change and the duty of care to future generations – of which she is one affected[i]. A link to the story is footnoted.

Ms Sharma is also talking tomorrow, 14 March 2024, at a town hall meeting arranged by Independent Teal MP, Monique Ryan[ii]. Dr Ryan holds the formerly ‘safe’ Liberal seat of Kooyong that she won from ex-Treasurer, Josh Frydenberg.  This town hall meeting will also be attended by Zoe Daniels MP, Independent in the seat of Goldstein.

This publicity is likely focused around a private members Bill, introduced to Federal Parliament in 2023 by ACT Independent Senator David Pocock. The Bill proposes to enshrine an inter-generational duty of care into Federal legislation. It is titled Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023[iii]

On 3 August 2023, the Senate referred Senator Pocock’s Bill to Parliament’s Environment and Communications Legislation Committee for inquiry and report by 1 February 2024. The closing date for submissions was 20 October 2023 but was extended to 23 November 2023. The Committee was granted two extension of time for its report.  It is now required to issue its report in two weeks (27 March 2024).

The Bill seeks legislation to overcome a 2022 decision of the Full Court of the Federal Court holding that the Minister for the Environment owed no duty of care to a group of young Australians as to the impact of climate change arising from a coal mine approval[iv].  The Full Court’s decision overruled a 2021 decision by Federal Court Justice Bromberg who found that the Minister did owe such a duty of care[v].

It will be interesting to watch the government’s approach to this issue as the Parliamentary Committee reports, and the issue becomes increasingly politicised. 

AUSTRALIA’S STRATEGY FOR NATURE 2019-2023

60 years on from Rachel Spring’s groundbreaking book on biodiversity loss – Silent Spring – the Federal Department of Climate Change, Energy, the Environment and Water (DCCEEW), triggered by the UN Convention on Biological Diversity, is currently updating Australia’s Strategy for Nature.

By a December 2022 decision at a conference held during COP15, the Convention parties expressed alarm at the continued loss of biodiversity and the threat posed by such loss to human well-being and nature.  The decision adopted a new Global Biodiversity Framework[vi]. The Convention parties agreed to implement this new Biodiversity Framework. 

Australia’s environment ministers, on 10 November last year, agreed to develop what they termed ‘ambitious national targets’ to better protect nature and boost Australia’s contribution to global efforts to protect nature. Targets prioritized:

  • Restoration of degraded terrestrial, inland water, marine and coastal ecosystems. 
  • Tackling the impact of invasive feral species.
  • Building a circular economy and reducing the impacts of plastics on nature.
  • Minimising the impact of climate change on nature.

They noted the existing targets:

  • Protect and conserve 30% of Australia’s land and 30% of Australia’s oceans by 2030.
  • Work towards zero emissions.

The Ministers agreed upon three essential elements to achieve the targets:

  • Ensuring wide accessibility to environmental data and information. 
  • Incorporating nature into government and business decision-making, including financing, regulations, planning processes and policy reform.
  • Ensuring equitable representation and participation in decisions relating to nature, particularly by First Nations people.

It set a mid-2024 deadline for updating Australia’s Strategy for Nature. So, while the EPBCAct review and the consultation on the proposed replacement Nature Positive legislation grinds through a most unusual consultation process[vii], and consultation is now extended to May 2024, there appears to be clear and definitive action planned to update broad national strategic biodiversity policy.

This work is not new.  Rachel Carson wrote Silent Spring in 1962[viii].  Some regard Silent Spring as seeding the modern environmental movement[ix]. Most young people, including junior environmental lawyers, have never heard of it.  But over sixty years ago, beginning with her observations of the sea and oceans, Carson warned of impending biodiversity loss and the high risks to human health as well as species loss.  She warned of the impact of insecticides and aerial spraying on nature and humans.  Her work led to the banning of DDT, but this ban has subsequently been removed or reduced over time.  Current research, for example at Melbourne University’s School of BioSciences and Bio21 Institute led by international insecticide expert, Professor Philip Batterham, shows genetic mutations in insects that now render them insensitive to toxins[x].  This change at the bottom of the food chain is impacting up to its peak – and at a time when the clock is running down on world food supplies.

Australia’s Strategy for Nature needs to build sufficient policy strength to staunchly address issues of this kind.  Those with vested financial interests in maintaining the status quo can be expected to be seek a low-key policy.

Watch this space.

Cameron Algie, B.A., B.Mus., L.L.B.(Hons)
Dr Leonie Kelleher OAM, B.A., L.L.B., Dip.TRP, MEI, PhD.

13 March 2024
KELLEHERS AUSTRALIA PTY LTD

Copyright © Kellehers Australia 2024.

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[i] https://help.abc.net.au/hc/en-us/articles/9179313340687-Australian-Story-Call-of-Duty-Anjali-Sharma-Monday-11-March (accessed 12032024).

[ii] https://www.moniqueryan.com.au/kooyong_town_hall_20240314 (accessed 12032024).

[iii] https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/DutyofCareBill (accessed 12032024).

[iv] https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2022/2022fcafc0035/_nocache (accessed 12032024).

[v] https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0560 (accessed 12032024).

[vi] The Kunming-Montreal Global Biodiversityy Framework, https://www.cbd.int/gbf (accessed 12032024).

[vii] See critique of this process in Gottliebsen, Robert, 2024, The Albanese government is hiding many dark environmental secrets, The Australian Business Review,  Tuesday, 12 March. https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fbusiness%2Fthe-albanese-government-is-hiding-many-dark-environmental-secrets%2Fnews-story%2F8da7109dd5622482b6cdd70f8a246632&memtype=anonymous&mode=premium&v21=GROUPA-Segment-2-NOSCORE&V21spcbehaviour=append (accessed 13032024).

[viii] https://www.nrdc.org/stories/story-silent-spring (accessed 12032024).

[ix] For example, https://billofrightsinstitute.org/essays/rachel-carson-and-silent-spring (accessed 12032024).

[x] For example, https://www.unimelb.edu.au/newsroom/news/2020/september/insect-armageddon-low-doses-of-the-insecticide,-imidacloprid,-cause-blindness-in-insects (accessed 12032024).