Features Australia

Business/Robbery etc

2 March 2019

9:00 AM

2 March 2019

9:00 AM

It’s like the farcical Fawlty Towers admonition not to mention the war; in the real world it could not be avoided. ‘Cost’ (the huge burden to be carried by all Australians) is the word studiously avoided by the Chief Judge of the NSW Land and Environment Court Brian Preston, in last month’s contentious judgment that potentially bans new coal mines and states that fossil fuels should remain in the ground in order to meet our Paris greenhouse emissions target.

With no rational discussion of the economic consequences – or indeed the overall environmental impact of the proposed economic hair shirt – the judgment relied on the green activist mantra that ‘Developed countries such as Australia have a responsibility, including under the Climate Change Convention, the Kyoto Protocol and the Paris Agreement, to take the lead in taking mitigation measures to reduce greenhouse gas emissions’. At whatever the cost.

But what responsibility does an Australian judge have when taking it on himself to ‘create’ law that the parliament has chosen not to legislate? Preston unsurprisingly preferred the proposal from his old organisation, the Environmental Defenders Office, that new mines should be rejected solely on emissions criteria, against the contrary submission that pointed out that ‘banning new coal mines on emissions grounds is not required by any international agreement or Commonwealth or State law’.


It was all greenie dogma from then, with Preston rejecting the rational proposition that denying foreign steelmakers of higher-quality Australian export co-king coal would increase the volume of lower quality local coal (and emissions) required to produce the same amount of steel. He preferred the un-evidenced activist guesswork line that there was ‘no inevitability’ about this.

His judgment simply ignored the expert submission that ‘to ban all production and exports of steelmaking components (coking coal and iron ore) would destabilise our economy, substantially cut employment, and remove a major source of government revenue.

Last week’s devastating revelation of the future cost to Australia in cash and jobs resulting from political emissions targets reinforces the recent USSC finding that renewables and storage capacity ‘cannot providethe energy reliability required by industrial consumers’. Even more economically irresponsible is Preston’s outright rejection of the submission that ‘emissions reductions should be made where they count most and generate the least economic and social harm…’ Such national interest issues do not exist in Preston’s court-created law.

For many years Preston has been a very public climate warrior for renewable energy. He has been credited as the Godfather of the ‘lawfare’ that has disrupted and delayed billions of dollars of approved mining developments and is on the record suggesting ‘lawsuits could be used to pressure foot-dragging politicians into doing more about global warming’.

But his strong and public views did not deter him from judging this case which resulted in a victory for the environmental organisation he had previously created even though the Guide to Judicial Conduct warns judges against sitting on matters where they are known to hold strong views or links or there is ‘a real risk of the appearance of bias’. The legal unions (NSW Bar Council and Law Society) are hyperventilating at media criticism (‘an attack on the independence of the judiciary’) as the judgment has justifiably been described as  ‘a worrying example of judicial overreach’, ‘against the national interest’ and  ‘a decision that pits the law against the economy’, with Henry Ergas in the Australian newspaper demolishing its legitimacy as ‘tarnishing the rule of law’. Adding to the farce, Preston began his 700 paragraph gospel with these sentences: There is a valley, near Rocky Hill/ that a coal mine proposes to cut and fill./The Gloucester valley is a creature/ of a unique topographic feature./The valley is the floor of a nest/ the sides being ranges east and west.

As a judge, he demonstrated he was a lousy poet – or is it the other way around?  It is not the critics who are treating this jurisdiction with contempt…

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