Meme of the Week

@TomRed43

Quote of the Week

 

” It seemed that the part he was most sensitive about was whether I was going to expose his invisible role as a ringleader – of the coup, and of the treatment I’d received since. He asked the same question in various different ways, along the lines of ‘It’s not anything I have done is it?’ ‘You don’t have a problem with me, do you?’ ‘Are you sure there’s nothing I’ve done to make you want to leave?’ Would I expose that he was a bully? That he was a man who could not be trusted?” [Former Liberal MP for Julia Banks quoted in The Sydney Morning Herald, 5 July 2021]

Federal Court judgment of 8 July 2021 in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) gives the Morrison Government little comfort

“The parties do not dispute that human emissions of CO2 into the atmosphere are largely responsible for the warming of the Earth’s surface temperature since the Industrial Revolution. The Minister accepts that the Earth’s surface temperature is increasing and that humans are primarily responsible. She also accepts that average surface temperatures will likely continue to increase and Australia will experience more drought, sea level rises and extremes of heat, rainfall and fire-related weather. The Minister accepts that increases in temperature affect the environment, the economy and society and that the climate exacerbates inherent risks and introduces new risks in the context of heatwaves, droughts, bushfires, floods and tropical cyclones all being part of the Australian climate experience.

The Minister accepts that the projected effects of climate change depend upon the extent of greenhouse gases emitted globally in coming years. The applicants presented unchallenged scientific evidence on the future trajectory of global average surface temperatures. The evidence was largely based on the climate change modelling of the Intergovernmental Panel on Climate Change and more recent assessments made by Professor William Steffen, an eminent specialist in climate science.” [BROMBERG J, 27 MAY 2021, MELBOURNE, excerpt from SUMMARY supplied for Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021)]

“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this 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 inter-generational injustice ever inflicted by one generation of humans upon the next.

To say that the Children are vulnerable is to understate their predicament. However, it is not vulnerability in the abstract which is relevant for determining whether a duty of care is owed to them by the Minister. Their vulnerability must be connected to their relation with the Minister or their reliance upon the Minister: Stuart at [134] (Crennan and Kiefel JJ). And it is.” [Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774 (8 July 2021, Judgment, excerpt])

In its 8 July 2021 judgment in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774 (8 July 2021) the Federal Court did not accept the the Minister’s contention that the Court should order that the proceeding not continue as a representative proceeding at all - instead ordering that The proceeding not continue as a representative proceeding in respect of persons who were under 18 years of age and not ordinarily resident in Australia at the time of the commencement of this proceeding. The Court also did not accept the Minister’s argument with regard to costs and ordered The Minister pay the applicants’ costs of the proceeding.

This second judgment although it now excludes unnamed Other Represented Children from the representative proceeding specifically allows those eight Australian teenagers named as applicants to remain as applicants in the proceeding: I have determined that the proceeding should continue as a representative proceeding in relation to the Represented Children.

BACKGROUND

Allens, Australia, retrieved 9 July 2021:

In August 2020, the NSW Independent Planning Commission granted development consent for the extension of the Vickery Coal Project (the project) in northern NSW under the Environmental Planning and Assessment Act 1979 (NSW). As the project is likely to have impacts on federally listed threatened species and water resources, it also requires approval from the Federal Minister for the Environment (the Minister) under the EPBC Act.

The project, if approved, will involve the extraction of an additional 33 million tonnes of coal over the life of the mine. The combustion of this additional coal will result in the emission of approximately 100 million tonnes of CO2.

In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, eight Australian children brought an action in negligence against the Minister, seeking a declaration that she owed them — and children around Australia — a duty to exercise her powers under the EPBC Act with reasonable care so as not to cause the children harm. They contended that the project would contribute to climate change, and consequently increase the risk of climate change-related harm to the applicants, including mental and physical injury, damage to property, and economic loss.

The claimants also sought an injunction restraining the Minister from committing an apprehended breach of that duty — that apprehended breach being the approval of the project.

The decision

The court found that the Minister owes the applicants a duty to take reasonable care when considering whether to approve the project under the EPBC Act.

In determining that the Minister owes a duty of care, the court held:

• The environmental impacts of increasing global surface temperatures, including greater incidence and severity of heatwaves and bushfires, would expose the applicants and the representative class to a real risk of death and personal injury.

• While the project would cause a 'tiny' increase to global average surface temperatures, that increase was measurable and therefore the risk of harm 'real', and not far-fetched or fanciful.

• A reasonable person in the Minister's position would foresee that the applicants would face an increased risk of injury brought about by climate change that would flow from the contribution to increased atmospheric CO2 brought about by the project.

• The Minister's knowledge of the risk of harm and her control over the source of harm strongly supported finding a duty of care.

• While some factors weighed against a duty being recognised, in totality the salient features of the relationship between the Minister and the applicants favoured the recognition of a duty of care.

Despite recognising the duty of care, the court declined to grant an injunction preventing the Minister from approving the project. Ultimately, the court was not satisfied that the applicants had demonstrated the Minister would breach her duty of care, and said that, instead, it would be more appropriate to grant any relief once a decision had been made. The court did not accept the applicants' contention that an approval of the project would inevitably constitute a breach of duty, noting that the Minister's competing or conflicting responsibilities could influence a reasonable response to the foreseeable harm. Such a reasonable response could include conditions on any approval under the EPBC Act.

Implications

While the applicants were not successful in injuncting the Minister from granting the approval, the decision to recognise this novel duty of care could have significant consequences. This is the first time in Australia that a court has recognised a duty of care owed to children by a Minister exercising powers under any statutory environment or planning regime.

The recognition of a duty of care in connection with climate change-related harm under the EPBC Act framework is noteworthy, given the matters protected by the EPBC Act do not extend to greenhouse gas emissions or climate change. While protection is afforded to various environmental matters, including listed species and habitats, the health and wellbeing of human beings is not a protected aspect of the environment that would trigger the need for approval under the EPBC Act. However, by reference to the broader statutory scheme (including reference to the principle of inter-generational equity) the court noted the Act's object is to protect the interests of people and, in particular, future generations of people, in the environment — rather than the environment itself. Because this duty of care was not found by reference to the particular protected matters in the EPBC Act and instead within the broader statutory scheme, the interpretive approach may translate more readily to other pieces of environmental legislation at a state level.

This decision may also impact the grant of approvals under the EPBC Act. The court noted that in deciding whether to approve the project, 'a well-advised and responsible Minister would take notice of those matters', referring to the now-established duty of care owed to the applicants. Those in charge of approving carbon intensive projects may now be more alive to climate change-related issues and place greater weight on those risks when making decisions.

No matter how Morrison & Co try to spin the Australian Treasury's 2021 Intergenerational Report, it reveals lacklustre economic growth expected over the next 40 years

In June 2021 the Australian Treasurer and Liberal MP for Kooyong, Josh Frydenberg released the Treasury’s 2021 Intergenerational Report: Australia over the next 40 years

Although a traditionally impartial Treasury complied most of the report’s contents, the partisan political nature of this report can be found kicking off at Line 19 of the Executive Summary, which starts with this untruthful statement:

Australia entered the COVID-19 pandemic from a position of economic and fiscal strength. The budget was in balance for the first time in 11 years…..

North Coast Voices readers would be well aware that 2019-20 national budget papers released in April 2019 forecast a then as yet unrealised balanced budget and return to surplus by 30 June 2020, with surpluses continuing over the medium term. This was a risky assertion to make on the basis of optimistic assumptions not hard facts.

Just how risky became apparent soon after February-March 2020 when the word “surplus” was quietly scrubbed from the Liberal-Nationals political lexicon due to the social and economic upheaval caused by both six years of the Abbot-Turnbull-Morrison Government in Canberra and a highly infectious global pandemic.

By June 2020 Australia’s net debt was expected to peak at $392.3 billion and, by June 2021 there was an est. $829 billion in gross public debt and $617.5 billion in net public debt on the books and an underlying cash deficit in the vicinity of $161 billion, with no budgetary surplus on the horizon.

That might almost be considered to qualify as good news given some of the forecasts contained in the 2021 Treasury intergenerational report. Because that report clearly shows that the COVID-19 global pandemic could cease tomorrow and it would make little difference to Australia’s long term economic recovery.

There will be no post-pandemic ‘snapback’ which will see the national economy quickly flourish.

From 2014 to the present day successive federal governments have trashed the goodwill and tolerance of our political allies and trading partners with anti-science, climate change denialist polices, demonstrated a crass clumsiness and sometimes downright ignorance of international relations and, the complete absence of diplomacy in negotiations with our largest trading partner. While increasing impacts from climate change will, more frequently than in the post-climate crisis era, see a fall in the seasonal/annual volume of agricultural products for export.

The domestic industry and business mindset that insists employers are doing workers a favour by employing them on a low wage with no job security, rather than recognising that the worker creates cashflow and profits by producing actual goods to sell, will in all likelihood actively discourage decent wage growth over the next 40 years.

According to the Executive Summary in the 2021 Intergenerational Report:

….real gross domestic product (GDP) is projected to grow at 2.6 per cent per year over the next 40 years, compared with 3.0 per cent over the past 40 years. Real GDP per person is projected to grow at an average annual rate of 1.5 per cent, compared with 1.6 per cent over the past 40 years. Nominal GDP growth is projected to slow to 5.0 per cent per year over the next 40 years, compared with 7.0 per cent over the past 40 years. Real GNI is projected to grow at an average annual rate of 2.3 per cent, compared with 3.3 per cent over the past 40 years. Real GNI per person is projected to grow at an average annual rate of 1.3 per cent, compared with 1.8 per cent over the past 40 years. The larger slowdown in GNI growth than GDP growth reflects an assumption that the terms of trade will decline before stabilising at long-term levels.

Real GDP per person = Gross Domestic Product per person adjusted for inflation
Real GNI per person  = Gross National Income (wages & other earned income)
per person adjusted for inflation
Real GDP = Gross Domestic Product adjusted for inflation
Real GNI = Gross National Income (wages & other earned income)
Nominal GDP =  measures total value of the output produced in Australia, by
adding together Real Gross Domestic Product and prices to produce a close estimate.

Australia's terms of trade is calculated as the ratio of export prices to import prices. If this index increases it implies that Australia is receiving relatively more for its exports; if it decreases then Australia is receiving relatively less. An increase in export prices relative to import prices
implies that Australia is better off; thus an increase in the terms of trade
is sometimes referred to as a favourable movement in the terms of trade. [Australian Parliament House Library, retrieved 07.07.21].


After the 2007-08 Global Financial Crisis (GFC) Australia's terms of trade under Labor federal governments peaked in 2010-11 & 2011-12 at 2.1 before falling to 1.0. Subsequent Coalition federal governments peaked at 1.1 in 2020-21. Australia's terms of trade are predicted to return to the 0.9 of the Global Financial Crisis period and stay at
that level until after 30 June 2061. 



Australian Treasury tables attached to the 2021 Intergenerational Report predict that Average Labour Productivity Levels will remain at 1.5
until after 30 June 2061. This is the same level of average labour productivity between approx. 1981 and 2020.


In those same tables Average Gross National Income per person adjusted for inflation is expected to fall from the current 1.8 to 1.3 for the next 40 years. This does not indicate strong wages growth across the board over the next four decades.


After credibly surviving the 2007-08 Global Financial Crisis under a
Labor federal government, Australia now faces forty years of struggling
to move past social and economic consequences of the current federal Coalition government’s six years of poor policy decisions and its appalling mismanagement of the global COVID-19 pandemic once it became clear the virus would breach our national borders.

State of the Global Natural Environment 2021: fighting to hold nations, governments, industries accountable for the catastrophic environmental harm they cause

American Society of International Law, 2 July 2021:

A group of legal experts, in a collaborative effort to confront environmental destruction, have proposed an amendment to the ICC Rome Statute that would add the crime of ‘ecocide’ to the Court’s jurisdiction. The proposal defines ‘ecocide’ as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” As reported by JURIST, the legal experts believe that the policies and precedents that are currently in place to address similar issues are “inadequate.” While the ICC maintains a history of delivering sentencing and legal precedents in war crimes cases, this amendment could alter the concept of accountability and extend it to the pressing issue of human contributions to climate change. If an ICC member state issues a recommendation for the proposal of the amendment to go forward, a vote will be taken on whether to execute the amendment. To succeed, two-thirds of the total vote are required. [my yellow highlighting]

STOP ECOCIDE FOUNDATION, Independent Expert Panel for the Legal Definition of Ecocide, COMMENTARY AND CORE TEXT, June 2021, excerpts:

It is widely recognised that humanity stands at a crossroads. The scientific evidence points to the conclusion that the emission of greenhouse gases and the destruction of ecosystems at current rates will have catastrophic consequences for our common environment. Along with political, diplomatic and economic initiatives, international law has a role to play in transforming our relationship with the natural world, shifting that relationship from one of harm to one of harmony.

Despite significant progress, the inadequacies of current global environmental governance are widely acknowledged. National and international laws are in place to contribute to the protection of the natural systems upon which our well-being depends, yet it is apparent that such laws are inadequate and more is needed.

It is against this background that in late 2020 the Stop Ecocide Foundation convened an Independent Expert Panel for the Legal Definition of Ecocide (‘Panel’). It comprises twelve lawyers from around the world, with a balance of backgrounds, and expertise in criminal, environmental and climate law. They have worked together for six months, charged with preparing a practical and effective definition of the crime of ‘ecocide’. The Panel was assisted by outside experts and a public consultation that brought together hundreds of ideas from legal, economic, political, youth, faith and indigenous perspectives from around the globe.

Between January and June 2021 the Panel convened for five remote sessions. Panel sub-groups were tasked with specific research and drafting tasks. A consensus on a core text of a definition of ecocide as an international crime was reached in June 2021.

It is the hope of the Panel that the proposed definition might serve as the basis of consideration for an amendment to the Rome Statute of the International Criminal Court (ICC). The Statute addresses crimes that are deemed to be of international interest and relevance, and the time has come to extend the protections for serious environmental harm, already recognised to be a matter of international concern.

The inclusion of ecocide in the Rome Statute would add a new crime to international criminal law. This would be the first to be adopted since 1945. It would build on the existing crime of severe damage to the environment during armed conflict, whilst reflecting the fact that today, most severe environmental damage occurs during times of peace, a situation that currently falls outside the jurisdiction of the ICC. This definition of ecocide offers the States Parties to the Rome Statute the opportunity to meet current challenges.

Proceeding to agree a crime of ecocide could contribute to a change of consciousness, in support of a new direction, one that enhances the protection of the environment and supports a more collaborative and effective legal framework for our common future on a shared planet. It offers a new and practical legal tool.

The work has been inspired by earlier efforts, in 1945, to forge definitions of new international crimes, including ‘genocide’ and ‘crimes against humanity’. Ecocide draws from both terms, in form and substance.

Taken with these two crimes, and with war crimes and the crime of aggression, we hope that ecocide might take its place as the fifth international crime…..

II. Proposed Amendments to the Rome Statute

To add ecocide as a new crime to the Rome Statute, the Panel recommends the following amendments. We note that consequential amendments may also be required for other provisions of the Rome Statute, such as Article 9, and to the ICC Rules of Procedure and Evidence, and the Elements of Crimes.

A. Addition of a preambular paragraph 2 bis

Concerned that the environment is daily threatened by severe destruction and deterioration, gravely endangering natural and human systems worldwide,

B. Addition to Article 5(1)

(e) The crime of ecocide.

C. Addition of Article 8 ter

Article 8 ter

Ecocide

1. For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

2. For the purpose of paragraph 1:

a. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;

b. “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;

c. “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;

d. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time; 

e. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.

NOTE: This was signed by all twelve members of the Independent Expert Panel.

Large foreign investment funds have warned they could blacklist Australia and cut billions of dollars of investments in the country if the Morrison Government fails to join the rest of the world in committing to a net-zero 2050 greenhouse gas emissions target

 

Financial Review, 5 July 2021:

Large foreign investment funds have warned they could blacklist Australia and cut billions of dollars of investments in the country if the federal government fails to join the rest of the world in committing to a net-zero 2050 greenhouse gas emissions target.

The warning backs up concerns of the Reserve Bank of Australia that the economy is at risk from foreign investors withdrawing capital because of perceptions among global fund managers that the Morrison government is resisting strong action on climate change.

The $US1.4 trillion ($1.9 trillion) investment management firm, Invesco, said Australia’s climate change policies were an important consideration for its investments under its environmental, social and corporate governance (ESG) rules.

Invesco’s UK-based Asian equities director, John Pellegry, told The Australian Financial Review that “among developed markets, Australia’s approach appears to be behind others”.

“This may impact our investments in the future if other parts of the investment universe are tackling the issues more effectively.

“An inadequate climate change policy could lead to the selling of Australian investments – for example if required by our clients or if necessary to adhere to stricter policies outside Australia – for example, EU [European Union] policies.

“A greater valuation discount would also be warranted for the additional risk of investing in companies with less growth prospects and subject to greater externality costs – such as carbon pricing – if behind the curve versus global competitors…...

Australians will be prompted to include traditional place names when addressing letters and parcels from July 2021, after a community campaign

 

ABC News, 5 July 2021:

Australians will be prompted to include traditional place names when addressing letters and parcels from July 2021, after a community campaign.(ABC News: Margaret Paul)

Australians will now be prompted to include traditional place names when addressing letters and parcels, after a community campaign.

The new Australia Post packaging will include a dedicated spot where customers can choose to include the First Nation country, just above the street address on a letter or parcel.

It will be phased in as stock becomes available, as part of NAIDOC week.

Gomeroi woman Rachael McPhail has been petitioning Australia Post to make the change, as part of a campaign to include traditional place names in all addresses.

"For every town, for every place in this country, we have an original name, and it's important to use them as a celebration and to recognise the history and the connection of First People to country," she said.

She said the next step was compiling a comprehensive database of all traditional place names, so people could easily work out where to send their mail.

She said that would require a national, collaborative effort.

"What that entails is comprehensive and respectful consultation with First Nations people, elders, and community leaders, all around the country," she said.

"We need to make sure we are recording and collating that information all around the country."…….