Political attacks on climate cases undermine the rule of law

Dec 5, 2021
Lawyers
(Image: AAP/Glenn Hunt)

The courts are an intrinsic part of Australian democracy, despite attacks from conservative critics, write Isabelle Reinecke and Oliver Ray.


If your home was under threat, you would do anything in your power to protect it. That’s the view of Torres Strait Islander leaders Pabai Pabai and Paul Kabai.

In October, the pair filed a class action lawsuit in the Federal Court, in a bid to force the Commonwealth to take action to stop climate change from destroying their home. The growing body of climate litigation, of which Pabai and Paul’s case is a part, comes at a time of increased conservative attacks on the authority of Australian courts to deal with socially and politically important cases.

Public interest court cases have always played a central role in our system of democratic accountability, by offering people opportunities to question government overreach and ensure elected officials act within lawful limits

Cases such as these are a significant inconvenience for any government that loathes accountability. So it stands to reason that current politicians would prefer the courts stay out of their way. In pursuit of that goal, successive governments have made a project of undermining the authority of the judiciary in dealing with matters of political sensitivity.

Lawyers, and society at large, have long since accepted that judges create — not just interpret — important legal principles. Before the famous 1932 snail-in-a-bottle case, companies had no general responsibility not to put the health of the public at risk. The case of Donoghue v Stevenson is now firmly established law, but at the time it was a truly novel concept that divided the British court and had significant impacts on business and society. Despite this, the court was not subject to public criticism or accusations it had overstepped its role.

Over the past 30 years, however, rights-protective court decisions have been derided as ‘‘judicial activism” by increasingly furious conservative commentators and politicians who seek to undermine judgments they don’t agree with. The term ‘‘judicial activism” originated in the United States and referred to the tendency of certain US Supreme Court judges to invalidate legislation based on civil rights protection in the US constitution. It has since become little more than a rhetorical smokescreen for politically motivated criticism of the judiciary.

It is no surprise that debate around ‘‘judicial activism” first gained prominence in Australia at the time of the Mabo and Wik native title decisions, some 40 years after the debate started in the US in response to the success of the civil rights movement. Those decisions recognised a foundational injustice against First Nations people, despite the inconvenience overturning so-called Terra Nullius caused for the government.

Few people would deny the nation-shaping importance of Mabo and Wik, but the cases sparked conservative backlash as the government fought to maintain control of mining and pastoral rights. Leader of the Nationals and deputy prime minister, Tim Fischer, claimed that native title would ‘‘break the economy and break up Australia”. Bill Hassell, president of the West Australian Liberal Party, accused the High Court of advancing an agenda that would divide, damage and destroy Australian society.

Since then, politically motivated criticism of the High Court by conservative politicians has only grown louder, supported by organisations such as the Samuel Griffith Society and the Institute of Public Affairs.

Liberal Senator Amanda Stoker is the latest politician to take up the fight against democratic accountability and the recognition of First Nations rights in the courts. In a 2020 speech to the Samuel Griffith Society, of which she was once a member, she condemned the High Court’s ‘‘judicial activism” in the case of Love and Thoms v Commonwealth. Stoker took issue with the ‘‘truly disturbing” majority decision that Aboriginal Australians cannot be considered ‘‘aliens” under the constitution and called for the case to be challenged after the retirement of two members of the High Court later that year.

For conservatives such as Stoker, there is immense value in assigning the label of judicial activism to important rights-protective cases. Doing so casts doubt on the well-established right of the courts to determine socially or environmentally significant cases according to the law and entrenches the normative position that conservative decision-making is somehow apolitical.

Complaints of judicial activism also provide a convenient bugbear against which to promote a dangerous agenda of politically motivated judicial appointments. We have seen, in the United States, where such politicisation can take us. Most recently, president Donald Trump promised, and delivered, conservative appointments to the US Supreme Court. He was guided in his selection of judicial nominees by the influential Federalist Society. The society has built a network of power throughout the US legal system in order to advance socially conservative ideology, such as overturning the abortion rights established in the US Supreme Court’s decision of Roe v Wade.

In Australia, the Samuel Griffith Society and the Institute of Public Affairs may aspire to this level of influence. They have amplified calls for political interference with the courts by the Liberal Party, in an attempt to emulate their US counterparts. Stoker has laid out this agenda by calling on the Morrison government to take control of the High Court through ‘‘black-letter” (read: conservative) appointments — vetted by, you guessed it, the Samuel Griffith Society.

The fight to undermine the courts and avoid independent judicial scrutiny has been further advanced by attempts to delegitimise climate litigation in Australia. As the government faces increasing pressure from the Australian public and the international community to comply with its international climate obligations, communities are increasingly turning to legal action. As cases mount, so too does political pressure on the courts.

In recent years, opponents of climate litigation — among them Nationals Senator Matt Canavan, Liberal MP Sussan Ley and the Institute of Public Affairs — have accused activists and community groups of ‘‘green lawfare”. Attorney-general George Brandis raised the spectre of environmental ‘‘lawfare” in 2015, after a successful challenge to the approval of the Adani coal mine by Mackay Conservation Group.

Brandis complained that the Adani case, and others like it, inappropriately brought political and social arguments into the courtroom in the service of an ideological agenda. His complaint fits neatly within this history of politically motivated criticism of the courts where judges’ decisions don’t align with conservative policy.

These growing efforts to politicise the Australian judiciary or inappropriately constrain the function of the courts should not be taken lightly. If allowed to succeed, the courts could become little more than a rubber-stamp for government policy, weakening a critical avenue for preventing the abuse of power.

Proponents of democracy and the rule of law must recognise and defend the value of public-interest litigation in our political system. Legal cases in defence of First Nations rights, government transparency, or environmental protection should be welcomed as an intrinsic part of Australian democracy and judicial tradition. They are a necessary part of testing and enforcing the limits of government power and responsibility.

In holding the government accountable for the harm caused by worsening climate change, people such as Pabai and Paul are invoking the democratic protections of the courts for their community — and for all people. We must not allow these protections to be further eroded.

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