Introduction to the Climate Change edition

Richard Lancaster SC
Dr Ruth Higgins SC

The Climate Change Committee has welcomed the opportunity to work with the Bar News Committee and is grateful to the editorial team for its enthusiastic pursuit of a range of contributions that will be of interest to members of the NSW Bar. As responsible legal practitioners and concerned citizens, well-informed barristers can provide meaningful assistance and participation as governments, corporations and courts attempt to address this significant ongoing crisis for the environment.

This edition of Bar News provides an interesting and informative collection of articles on aspects of climate change in Australian litigation, law and society.

Climate Change Committee

The Climate Change Committee was established as an advisory panel to assist the Bar Council during the presidency of Tim Game SC, acknowledging the obvious importance of the topic and the increasing connection it has with the advice and advocacy work of barristers. Now constituted as a Committee of Bar Council during the presidency of Gaby Bashir SC, its role is to make recommendations to the Bar Council with respect to legislation and law reform dealing with the legal aspects of climate change and related environmental and planning laws; to seek to ensure that the benefits of the administration of justice are available to members of the community who are affected by climate change; to monitor judicial decisions, bills, legislation, policies and programs for their impacts on climate change and Australia’s commitment to its international obligations; and to conduct CPD activities on the topic. The Committee members have been motivated and active, working with former co-chairs, Tim Game SC and Ruth Higgins SC and current Chair, Richard Lancaster SC.

The activities of the Climate Change Committee have included a range of publications and events, including contributions to law reform and policy development by State and Commonwealth governments. The committee produced an outstanding submission to the Commonwealth Treasury on climate-related financial disclosure. It contributed to the professional development of the Association’s members through a live debate between Tim Game SC and Georgina Wright SC on environmental prosecutions. The committee also provided input to a Law Council submission in relation to the Parliamentary Joint Committee on Human Rights’ inquiry into Australia’s Human Rights Framework, proposing that the right to a safe, clean, healthy and sustainable environment be included in new federal human rights legislation. Other activities are mentioned in the Q&A with Richard Lancaster elsewhere in this edition.

The committee seeks to take a proactive position consistent with the Bar Association’s 2023 State Election Policy Statement, in which it called on all political parties to commit to tangible reforms at a State level by establishing a dedicated department or minister for climate change; setting up a statutory commission or standing parliamentary committee of inquiry into climate change; and identifying what other reforms are required to environment and planning laws to enable NSW to facilitate energy transition and otherwise mitigate the effects of climate change.

Climate Change edition

This edition has an excellent collection of works on and around the topic of climate change.

Climate change litigation involves an ever-growing number of public law and private law proceedings in which climate change is integral to challenges to administrative, regulatory or corporate conduct and decision-making. This edition includes an important article on ‘The Role of the Judiciary in Keeping the Legislature and Executive Accountable’ by Preston CJ of LEC, who has been at the forefront of decisions in and commentary about climate change litigation throughout his tenure as Chief Judge of the Land and Environment Court and an informative interview with Justice Sarah Pritchard, a celebrated recent appointee to that Court.

The edition also includes an update on recent examples of climate change litigation; a significant article on practical aspects of the various forms of such litigation in Hutley SC and Entwistle on ‘Pre-trial forensic issues in climate change litigation’; it reproduces Bret Walker’s thought-provoking Mahla Pearlman oration; and also includes a meaningful call for ‘Indigenous-led climate litigation in Australia’ by Prof Craig Longman and Bridget Flaherty.

One particular and dramatic consequence of climate change in Australia has been to heighten tensions in the already-troubled area of access to water across State boundaries. There are powerful pieces on this topic in this edition, including ‘Use rights to water in the Murray-Darling Basin’ by Tim Rogan and ‘Climate change and the Basin Plan: where unlawful meets unethical’ by Richard Beasley SC.

The Climate Change Committee thanks Bar News for addressing this important topic and hopes that readers enjoy the edition. BN

Richard Lancaster SC

Martin Place Chambers

Dr Ruth Higgins SC

Banco Chambers