"Is the climate changing? Why weren't we told?" chided broadcaster Phillip Adams as a long-feared drought-heatwave-bushfire trifecta neared its deadly apotheosis.
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| It might sound fanciful - and costly - but some lawyers say a class action against those responsible for climate change could in fact be successful. Picture: Shutterstock |
The New Year's Eve jibe came as the last twigs of the Coalition's she'll-be-right assurances were themselves cremated - a vengeful coda to a decade of climate negligence. Of putting short-term electoral advantage before the national interest.
Only months ago a coal-brandishing Liberal Prime Minister had been re-elected.
Making consistency his sole virtue, Scott Morrison would later think little of taking off on a luxurious overseas holiday as the crisis he regarded as nothing unusual rolled forward.
And just to emphasise his party's zen-like state, the NSW Minister for Emergency Services would, astoundingly, follow suit, venturing to Europe during the very event for which he had been sworn in - a major state emergency.
This brazenness also characterises the embattled federal Emissions Reduction Minister, Angus Taylor, who confidently claims that Australia produces just 1.3 per cent of global carbon emissions and is thus doing everything required of it.
He also urges the world to keep burning as much Australian coal as we can dig out, while shamelessly pleading our case to use accounting carry-overs (from our laughably low Kyoto obligations) to meet the mediocre Paris target we were set.
If it weren't so serious these failings would qualify as high farce.
Of course our government had been told about global warming. Clearly. Repeatedly. Authoritatively.
Steadily accumulating data pointed unmistakably to catastrophic implications.
While some parts of the globe would become wetter, others would become much hotter, drier, functionally uninhabitable.
Sea levels would rise, exacerbating storm surges. Low-lying Pacific nations would disappear.
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| Our government has been told about global warming - clearly, repeatedly and authoritatively. Picture: Shutterstock |
Species loss would accelerate.
In short, the preconditions for a state of more-or-less galloping crisis.
All of these threats have coalesced in recent weeks and months.
Soaring temperatures and extraordinary turbulence across tinder-dry ground have created hellish conditions.
Yet while Australia burns - 2019 being the hottest and driest year on record - in the nearby capital of Indonesia, unholy rains have seen at least 30 dead.
Jakarta's heaviest falls in 24 years (perhaps ever) have brought widespread drownings and fatal landslides.
Again, such events had been predicted.
But to what effect?
The absence of visionary leadership has been evident globally, but nowhere more self-destructively than in Australia, a sophisticated polity with perhaps the greatest interest in securing concerted action.
Yet far from doing that, Australia has actually led the resistance.
And its most successful political party, shielded by influential media barrackers, has instead preferred to undermine the scientific consensus, to inhibit action at home, and, most damningly, to lend legitimacy to tardiness abroad.
Viewed historically, this is hardly Australian. Viewed strategically, it is self-serving to the point of being unpatriotic.
Even as a small nation, Australia has boldly contributed to global initiatives in the past.
Examples include unhesitating engagement in two world wars, championing the creation of the United Nations and showing moral leadership against apartheid South Africa. Or there's the establishment of the International Criminal Court, the progression of free trade rules, and the creation of the G20 and APEC.
"The absence of visionary leadership has been evident globally, but nowhere more self-destructively than in Australia."Yet on the existential question of climate change? Fecklessness.
Abatement has been politicised as the panicked ravings of a "climate cult", the science informing it pilloried, and the only legislated mechanism for reducing domestic carbon output triumphantly repealed.
Remarkably, the Coalition went to the 2019 election with no energy policy and no serious carbon-reduction plan - nor even any desire for one. And it prevailed.
Think about that.
Little wonder younger voters doubt democracy.
It is not just that politicians fail to deliver, or that some lie - it is that there is no electoral consequence for negligence and moral turpitude.
But what if there were consequences? Liability even.
It's a long bow, but imagine a class action against government itself, against individual politicians, ministers, their political parties, and perhaps even their media apologists?
That the damage is real is beyond debate - we all know the figures. But the liability?
That case could be brought by farmers, regional businesses, burnt-out homeowners, families of deceased residents and firefighters, their insurers, conservationists - all of them seeking to show that an officially sanctioned rejection of expert advice amounted to a negligence born of self-interest and a reckless indifference on the part of governments, political leaders, individual MPs and their various organs.
Sound fanciful? Perhaps, but statutes such as the NSW Rural Fires Act, 1997 set out a very clear responsibility for ministers and officials requiring them inter alia to make provision: "(a) for the prevention, mitigation and suppression of bush and other fires in local government areas, and (c) for the protection of persons from injury or death, and property from damage, arising from fires, and (c1) for the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from damage arising from fires..."
There could be other legal bases for an application also.
There's no doubt such an action would be novel and highly adventurous. It would face significant technical hurdles, and would be potentially costly.
Unlike the US, Australian litigants are generally required to pay the other's costs in the event of failure.
Even the threshold challenge would be problematic: proving a causal link between global warming and the firestorm(s).
Only after that could the claimants go on to assert that, through its particular negligence, the Coalition had increased the danger, thus breaching its duty of care.
Legally, this is a heavy burden, even if the moral and political case seems open and shut.
What is clear, however, is that the expert advice was repeatedly shelved and that the whole issue of climate change and its associated dangers was cynically politicised to the material disadvantage of citizens - current and future generations - and the national estate.
If justiciable, and that is a big "if", the words and actions of senior Coalition figures undermining the science as "crap" and claiming any risks were manageable are legion.
Just weeks ago, the Deputy Prime Minister, for example, described those linking climate to bushfires as "woke inner-city greenies".
Add to this, the repeal of the carbon price, refusal to seek global action, failure to take reasonable steps on available knowledge to avoid loss of life, loss of property, and destruction of native flora and fauna.
Would an Australian court entertain such an application? According to several lawyers contacted, it is not impossible.
Tony Abbott's replacement in the North Shore seat of Warringah, Zali Steggall, took to Twitter on New Year's Day.
"Very hard to celebrate a decade where governments had all the facts on the risks ahead and failed to act. #ClimateEmergency #ClimateActNow"
They did know. But claimed they knew better. They were wrong. Legally or otherwise, that is a fact.
*Mark Kenny is Senior Fellow at ANU's Australian Studies Institute
Links
- Doctrine of Public Trust
- Landmark Ruling That Holland Must Cut Emissions To Protect Citizens From Climate Change Upheld By Supreme Court
- What Kenneth Hayne Says About Climate Change - Transcript
- (AU) Hayne Rebukes Directors On Climate Risk Failure
- (UK) A Legal Approach To Fighting Climate Change
- (US) Climate Change Lawsuits Ask Whether Fossil Fuel Companies Are Responsible
- The world is paralysed by a fear of going it alone
- Bushfire smoke's impact will linger long after the air clears
- Morrison's leadership is not a given after fire response
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