(Image: Tom Red/Private Media)

When future generations — assuming they exist — look back at how Australia’s government approached its responsibility to respond to climate change, what they will see is vandalism. 

The ancient Vandals gave their tribal name to posterity because of their supposed penchant for pointless destruction.  It goes beyond incompetence, negligence, recklessness. It is wrecking as an ideology, the antithesis of the conservative philosophy to which this government pays sarcastic obeisance.

A recent and excellent example is the decision of Environment Minister Sussan Ley to approve the extension of the Vickery coalmine in New South Wales — a “fuck you” to the Federal Court and the children to whom the court had ruled she owes a duty of care to protect them from the climate crisis. 

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For the past decade or so, since outright denial of climate change became unfashionable outside of News Corp, successive environment ministers have been in the habit of approving fossil-fuel mining operations using simple sophistry: not disputing that climate change is real, nor that digging up and burning more fossil fuels might contribute to that, but finding that the particular impact of any particular coalmine, gas field or whatever is too uncertain and speculative to be allowed as a sufficiently concrete factor militating against approval.

Call it the Barnaby Joyce school of wilful ignorance.

Nobody’s had much joy in challenging such decisions in the courts. The only legal basis for challenging a minister’s determination is on narrow administrative law grounds, trying to convince the court that the minister made an error of law; that is, they misdirected themselves in terms of their own discretion. The remedy, if an error is found, is to send the question back to the same minister to get it right this time. As long as they make it look like they’ve properly considered everything they should, the decision is theirs to make, not the court’s.

Eight schoolkids, represented by the enterprising lawyer David Barnden, had a crack at pre-empting this regular farce by going to the Federal Court before the minister had made a decision on the Vickery mine expansion. They sought an injunction to prevent her from giving approval on the novel and clever basis that there was a clear threat that she was going to approve the mine and, in doing so, would cause them direct harm.

Justice Mordecai Bromberg made a massive judicial splash with his decisions in May and July, finding that the principal argument the children had raised was right:

The [minister] has a duty to take reasonable care, in the exercise of her powers … to avoid causing personal injury of death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the earth’s atmosphere.

It is conventional that the government owes a duty of care to its citizens to take reasonable measures to protect them from foreseeable harm. This decision says that harm from climate change is foreseeable, triggering the duty to not make it worse for the sake of future generations.

Having considered the piles of evidence before him, Bromberg had positively found that devastation of the earth from climate change is inevitable, taking quality of life with it. “None of this,” he said, “will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next.”

He refused to give an injunction, because he wasn’t satisfied that the minister would in fact breach her duty of care once she had considered the implications of his judgment.

Ley immediately appealed the decision, of course, and that is yet to be heard. It’s inevitably bound for the High Court.

In the meantime she has decided not to wait for the ultimate outcome of the case, and has approved the Vickery extension going ahead. Did she do what Bromberg hoped, and take his ruling into account? Yes. In her 62-page statement of reasons for her decision, Ley said that although she is appealing the judgment, she applied its reasoning to her decision.

There are many, many words in the rationale, but the only ones that matter are these:

I accepted the department’s recommendation that I find that the available evidence indicates that a decision to approve the proposed action would be unlikely to lead to an increase in global average surface temperatures. This is because the proposed action is not likely to cause more coal to be consumed globally.

Have we heard that logic before? Yes, we have — every time a member of the government opens their mouth on the subject of climate change. It’s reductive logic of the most pathetic kind: sure, climate change is real and we accept that all this burning of fossil fuels causes it, but this one extra coalmine? It won’t make a measurable difference.

Schoolchildren could point to the flaw in the logic (and have), but the government goes merrily on, approving project after project because each one considered in isolation has insufficient significance.

It’s not wilful ignorance. It’s knowing disregard for truth and consequences. Vandalism.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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