Book Review – Climate Law in Australia

Edited by Tim Bonyhady¹ and Peter Christoff²

Publisher: The Federation Press³

Reviewer: Stephen Keim SC

It is interesting when the accumulation of cases; policy development and legislation in a particular area of human endeavour gets to the point where a new basis for organisation of legal principles emerges. The publication of Climate Change Law in Australia in the dying days of 2007 announced that a new sub-set of environmental law worthy of its own Masters of Law units had arrived.

Tim Bonyhady, Director of the Australian Centre for Environmental Law at ANU recognises the way in which new areas of law have their origins in existing legal disciplines. In the early 1990s, Tim organised the most enjoyable seminar I have ever attended and, in turn, contribute to the development of those disciplines. The seminar was directed at the way in which litigation directed at protecting the environment was impacting upon traditional areas of the law. His 1992 edited book, Environmental Protection and Legal Change came out of that seminar.⁴

In the Introduction, Tim Bonyhady points out that concern with climate change by lawyers in Australia is not new by noting that Sir Ninian Stephen eschewed a request to speak about federalism and, instead, addressed climate change at the 1991 annual conference of the Australian Mining and Petroleum Law Association. As one might expect with an emerging discipline, the climate change law discussed in the book has various origins and is in various stages of development.

There are chapters on emissions trading schemes; geo-sequestration; legislative national emissions targets and nuclear power development which draw largely on policy proposals, legislation overseas, and the beginnings of legislative schemes in Australia.

The chapter on adaptation strategies looks at the way environmental planning legislation is being and might be directed at limiting future risk but also draws upon existing tort law to discuss the way in which future losses from climate change may be distributed within the community under existing legal regimes.⁵

A number of chapters look at the development of principles through litigation. The cases are traditional judicial review cases or merits review determinations under different forms of development approval legislation. The litigation discussed includes that concerning the extension of the life of the highly carbon inefficient power generator at Hazelwood in Victoria; the approval of the Taralga wind farm in New South Wales; and the attempts by the federal government to stymie the Bald Hills wind farm in Victoria for political purposes.

The renewal of coal mines have been a fruitful source of litigation including the Xstrata case in the Court of Appeal in Queensland⁶;  the Bowen Basin litigation in the Federal Court⁷;  and the Anvil Hill coal mine in the Hunter Valley⁸.

Climate Law in Australia predates the election of a new federal government on 24 November 2007. The much anticipated Garnaut Report and resultant legislative action may make some of the essays date quickly. This will not matter.

Not only has the collection made the point, effectively, that “climate law” is an organising principle whose time has arrived. It also provides an excellent primer for practitioners; students; and educators who wish to obtain a basic mastery of the new topic. Hopefully, further seminars and other fora will not only update the essays as further legal developments take place. Hopefully, they will build on the excellent analysis provided by this publication.

Stephen Keim SC

Footnotes

1. Professor Bonyhady qualifies easily as polymath. As well as his many publications on environmental law; he is also an expert on art; art history and Australian history, having published prestigiously in each of these fields and has curated collections at the Australian Portrait Gallery and the Australian National Gallery. http://www.humanities.org.au/Fellows/Searches/FellowsSearch.asp?Disc=3&KW=&Order=A&SN=&Sort=S&submit=Search&type=.
2. Dr. Christoff is coordinator of environmental studies in the School of Social and Environmental Enquiry at the University of Melbourne. He is a non-lawyer with an emphasis on policy development. His publication record on climate change policy is both extensive and impressive.
3. RRP is $59.95. Direct price (from the publisher) is $55.00.
4. The seminar was enjoyable not only because the best legal minds in a host of specific disciplines took part. The format contributed greatly. The house rule was that everyone had to have read the paper before the particular session started. The person who wrote the paper did not get to deliver it. Instead, the session started with the commentator ripping into the paper. This was followed by everyone round the table being encouraged to add their criticisms. Finally, with 15 minutes left, the paper writer got to try to defend themselves and put the pieces back together again. An excellent blood sport indeed and it worked.
5. The author of the chapter on adaptation is Jan McDonald, John F Kearney Professor of Law at Griffith University.
6. See Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338. The chapter is written by Queensland barrister, Dr. Chris McGrath.
7. See Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch v Minister for Environment and Heritage [2006] FCA 736; (2006) 232 ALR 510.
8. The case is Gray v Minister for Planning [2006] NSWLEC 720, 152 LGERA 258.