Administrative law: like the Curate’s egg, boring in parts, but environmentally useful nonetheless

By Peter Burnett

“Off with her head”, said the Queen of Hearts to Alice in Wonderland, when Alice couldn’t read the values of some face-down playing cards. The word of the Queen of Hearts was law. Not a good law, actually.

In the real world, ‘Bad King John’ of England (1166-1216) wanted his word to be law as well. While he might not have been quite so capricious as the Queen of Hearts, he was arbitrary and unjust enough to drive his barons to rebellion.

And that rebellion was settled by a set of rules called the Magna Carta in 1215.

While the Magna Carta is best known for establishing the mother of Parliaments and guaranteeing trial by jury (at least for ‘free men’), it also contained a number of guarantees against arbitrary action by the King and his officials — in other words, by government.

For example, King John guaranteed not to take anyone’s corn or chattels without payment and not to appoint incompetent or corrupt judges and officials.

As a result, the Magna Carta is also known for establishing the principle that government is not above the law and thus cannot behave in arbitrary and unjust ways.

This is the foundational principle of administrative law.

Now some believe ‘law’ is dry and boring, with the very mention of administrative law enough to send you to sleep.

I’m here to convince you that administrative law is far too important to be boring, though I will concede that it can be dry and tedious in the detail. In his book The Rule of Law, one of the great modern British judges, (Lord) Tom Bingham, gives the example par excellence of a tedious regulation:

Any reference in these regulations to a regulation is a reference to a regulation contained in these regulations. (!!)

And administrative law certainly has failings, as we shall see.

What has this got to do with the environment?

How is this relevant to the environment?

Anyone who has followed environmental issues through the courts will know that many court cases concerning the environment turn not on environment-specific principles (such as precaution or intergenerational equity), but on general principles of administrative law.

One such principle is that decision-makers should not be biased, or even appear biased.

A recent, if extreme, example of an environmental case involving that principle concerned the proposed extension to New Acland Coal’s mine near Oakey, Queensland.

This case has a history of appeals and re-hearings too long to recount, but in brief, an environmental assessment was done and a draft approval issued. However, because there were objections raised, the case was referred to the Land Court of Queensland, which had the role of making non-binding recommendations to the Minister for Natural Resources.

The key point for our purposes is that when the case eventually reached the High Court, they sent it back to the Queensland Land Court for a third hearing. This unusual outcome was required because the first and second hearings were affected by the appearance of bias, rendering both hearings invalid.

In the first hearing, the judge had apparently been deeply offended by a newspaper article on the mine extension, raising the possibility that his subsequent decision to recommend against approving the development might have been biased by his taking offence, while the reasoning of the judge in the second hearing became ‘infected’ by the apprehended bias of the first because she adopted some of his findings (at the direction of one of the intermediate appeal courts).

The High Court’s decision was hailed by the Environmental Defender’s Office as a major victory, and in one sense it is. High standards of decision-making have been upheld.

Yet the case also highlights the process-heavy downside of administrative law. Even if the third hearing is finalised without further appeal, there will have been a total of seven court hearings and a decisional timeframe spanning nine years and counting.

And we still don’t know whether the mine will be approved!

Of course, this is grist to the mill to industry and politicians running a campaign against ‘lawfare and green tape’, but the delays are more due to poor regulatory design than to administrative law itself.

A new line of attack

One feature of administrative law is that although its substantive principles are relatively constant, governments provide new ways to apply those principles by passing a constant stream of new laws.

Take for example the current challenge by the Environment Centre of the Northern Territory (ECNT) to the $21 million grant by Minister for Resources Keith Pitt to Imperial Oil and Gas, to expedite gas exploration activities in the Beetaloo Basin in the Northern Territory.

In the past, it has not been easy to bring legal challenges to government decisions to give money away. Some recent High Court decisions and federal legislation have changed this.

For example, since 2013, federal government grants must comply with the Public Governance, Performance and Accountability Act, which requires, among other things, that the minister making the grant be ‘satisfied, after making reasonable inquiries, that the expenditure would be a proper use of [public] money’.

A ‘proper’ use of money is defined in the Act as one that is ‘efficient, effective, economical and ethical’.

ECNT’s argument is that Minister Pitt committed an (administrative) error of law by failing to make enquiries about the climate risks associated with the development of the Beetaloo Basin, as well as the economic risks of that development as the world transitions to a zero carbon economy.

As far as I can tell this is the first time this line of attack has been used, although the Beechworth Lawn Tennis Club, which is challenging the ‘Sports Rorts’ grants made by the Australian Sports Commission, may well be using similar arguments. (Did I hear you mention ‘car parks’ as well?)

Boring in parts, but definitely useful

So, there you have it. While aspects of administrative law can be boring, overall it is far too useful in securing good environmental decisions to be ignored.

It does however have its problems, as the tortured and scandalously expensive chain of decisions in the New Acland Coal case show.

As a result, one of the challenges of environmental reform, beyond saving the environment of course, is to design decision-making processes that are not only fair and effective, but efficient as well.

Image by Gordon Johnson from Pixabay

Three experts and a politician in a sandpit – who has the real insight on climate policy in a connected society

By David Salt

The scientist, the economist and the lawyer

There were three people at the bar – a scientist, a lawyer and an economist – arguing about how to solve the intractable problem of sustainability, and specifically climate change.

The scientist said we just need to know a little more, remove some of the uncertainty around our knowledge on the earth system (and what humans are doing to it), and then society would fall behind the overwhelming scientific consensus that something needs to happen.

The lawyer said we just need better laws proscribing what’s acceptable and what’s not. Better rules are the solution.

The economist said we just need to provide the right incentives for people to begin doing the right thing and discourage them from doing the wrong thing. Bad behaviour, said the economist, should simply cost more making it ‘common sense’ to be sustainable.

Enter the politician

“You mean, like putting a price on carbon?” said a greying, white gentleman in an expensive suit who had butted into the conversation. “That worked a treat for Australia’s climate change policy.”

“Actually,” said the economist, “it did work well until it was canned by the Abbott Government in 2013.”

“But that’s the point,” purred the politician. “We proposed to ‘axe the tax’ and the people voted us in and we did… axe the tax that is. Putting a price on carbon was electoral poison and may we never hear of it again.”

“And you, Ms Scientist,” he said turning on the person representing science…

“It’s ‘doctor’ actually…” stammered the scientist; but was totally ignored by the politician who was building up a good head of righteous steam.

“…how effective has all your additional science reportage been in winning hearts and minds? For God’s sake, the IPCC’s Sixth Report read like a horror movie in terms of what it’s predicting. Yet we were able to deflect its potency by describing it as horror porn and pointing out we were actually beating our emission targets. It quickly faded from the news cycle.

“And as for you, Ms Lawyer, it’s all well and good to let scared children block coal developments by dragging our Minister for the Environment through the court saying she’s abandoned her duty of care to the future but just you watch happens on appeal.

“Mark my words,” he boomed, “No higher court will uphold a judgement that threatens to block every major economic development that brings with it a residue of environmental harm. To do so would kill the economy, the voters won’t hear of it.

“No, don’t you worry your pretty little heads with all this sustainability clap trap. The adults are in charge, and we’ll make sure there’ll be technology aplenty to ensure our thriving economy continues apace!

“And don’t forget whose taxes keep you happy and out of danger playing away in your little academic sandpits,” he finished with a flourish.

Shifting piles of sand

“You might be surprised what you find in sandpits, Mr Member of Parliament,” hissed back the scientist. “Back in the 80s, physicists experimented with models of sandpiles and discovered they were complex systems. The more grains you add to a pile of sand, the more unstable it becomes. It moves into what’s called a critical state.

“As the pile grows, more and more parts of the sand slope become unstable requiring just one more grain of sand to trigger a slide. At a certain point there are enough small triggers across the pile that setting off one small slide creates an avalanche that can rearrange the whole pile.

“You might think you’re safe from one of the small slides but the interconnected critical nature of the pile means change will occur well away from the initiating disturbance.”

“Thanks for that,” quipped the politician. “I’ll remember that next time a blunder into a sandpit.”

Pile high society

“You don’t get it, do you?” snapped the economist. “Our colleague is actually describing society. You and your conservative brethren are trying to hold things in the same state because that best serves your vested interests, your fossil fuel backers. But our sandpile society is slowly building up a resistance to your efforts. And when the instability corrects itself, your lack of action means the correction will be big.

“Companies and governments, though not the Australian Government, are trying to figure out how to sustain themselves in this increasingly uncertain climate-afflicted world. More and more countries are signing up to economic measures like a price on carbon. Carbon Border Adjustment Mechanisms are being developed by the G7. Even coal companies, irony of irony, are feeling the heat as insurance companies refuse to insure them; companies are having to figure out how they can do this themselves.

“All these things are little patches of instability on the sandpile and it’s making the whole sandpile unstable. This is not just a physics model, economists recognise it all too well and have seen it at play in every economic upheaval from the Great Depression to the GFC.”

“And you piss on the law, Mr Politician,” chimed in the lawyer. “But do you not see what’s happening everywhere at the moment?

“It’s not just a few children disillusioned at your deceit and lack of action. It’s courts at all levels calling you out. The whole Sydney City Council just endorsed the Fossil Fuel Non-Proliferation Treaty and, of course, most of the world signed up to the Paris Agreement. Citizens everywhere are now standing up and demanding what our governments are actually doing to meet these agreement.

“A Dutch court, in a landmark ruling, has just ordered Royal Dutch Shell to drastically deepen planned greenhouse gas emission cuts. This could trigger legal action against energy companies around the world.

“And a Paris court has found the French Government legally responsible for its failure to meet targets intended to reduce greenhouse gas emissions.”

“So, Mr Politician,” said the scientist, taking back the reins of the argument. “What does it mean for your efforts to stop change when all sectors of society – law, economics and science just to mention three – begin building in checks and balances to force change? Your malfeasance enables you to disable some of our efforts – ‘axe the tax’, as you say – but over time the little efforts across society build up, the triggers accumulate, the demographics change and the evidence emerges.

“I’d say you’re sitting on a hypercritical pile of sand being peppered by little grains of sand. And each new grain, each new disturbance, could trigger the slide that triggers the avalanche. And when that happens, your smug self-assurance over the success of the games you’ve been playing will be unable to staunch the flow.”

Nowhere to sit

“And if we’ve scared you out of the sandpit, Mr Politician, think of it as a game of musical chairs,” observed the economist. “Unfortunately, I can’t hear the music anymore.

“And, thanks to you and your efforts, it looks like Australia doesn’t have a chair to sit on.”

Image: In the sandpit of life, a single grain of sand can change everything if the circumstances are ripe. For an excellent article on sandpiles as models of economic growth and disruption, see https://www.mauldineconomics.com/frontlinethoughts/the-growing-economic-sandpile
(Image by Nuwanga Mavinda from Pixabay)

Let’s start with a bang, but then what? The early Hawke Governments: 1983-1987

This is another in our series on the environmental policies of previous Australian Governments.

By Peter Burnett

The blocking of Tasmania’s Franklin Dam project by the Hawke government in 1983 is legendary, even to many who weren’t around at the time. But who can remember what came next for the nation on the environment front?

The answer, for a few years at least, was ‘not that much’.

That dam case

The Hawke Labor government came to power partly on the back of a commitment to stopping the Franklin Dam. There had been a national groundswell against the project although, unsurprisingly, Hawke’s promise to block the dam was not popular in Tasmania, where the Labor Party failed to win a single seat.

Reflecting the prominent role the Franklin-Dam issue had played in the election, the Government made stopping the dam its first item of legislative business. The World Heritage Properties Conservation Bill, enabling the government to block the dam, waSs rushed through Parliament in a month.

And Tasmania immediately challenged the law in the High Court.

The High Court’s decision in the Franklin Dam Case, upholding the validity of the federal legislation, was of enormous significance. The Government won the case by a narrow 4-3 majority, but the implications of the majority’s wide view of the federal constitutional power to turn not just environmental commitments, but any international commitment, into domestic law, were by no means marginal.

Don’t forget Biggles

The case was also significant to political cartoonists, who from then on drew Attorney General Gareth Evans as a ‘Biggles’-style World War I flying ace.

This happened because the government needed some high-quality aerial photos of the dam site for the court case. What higher quality could there be than Air Force photo reconnaissance?

The problem was that the Air Force tasked an F-111 bomber to take high-altitude photos. No one would have noticed. Unfortunately for the Attorney General, the pilot, on finding the area overcast, decided to make his photographic runs at low altitude and high speed. You can guess the rest.

A national responsibility?

The effect of the Franklin Dam Case was to validate the theme of ‘national responsibility’ that Hawke had written into the Governor- General’s Speech for the opening of Parliament in 1983:

“My new Government has been elected with a very clear mandate from the people of Australia to protect the Australian environment. My Government is convinced that it would be a gross dereliction of its Constitutional responsibility were it to fail to carry out the clear wishes of the overwhelming majority of the Australian people.

“The national Government is obliged to protect Australia’s natural and cultural heritage, including the South-West Tasmanian wilderness.

The problem was that, aside from stopping the Franklin Dam itself, the Hawke government didn’t do much to implement this ‘national responsibility’ policy during its first two terms.

In fact, the post-Franklin Dam period, through to 1987, could be regarded as rather lacklustre when it came to the environment.

The National Conservation Strategy

This lack of lustre is particularly evident in the fate of the National Conservation Strategy.

This was a Fraser government initiative [see my blog on the Fraser years], continued by Hawke. The Strategy had involved two years’ consultation and culminated in a national conference under the chairmanship of scientist and former Vice Chancellor of the University of NSW, Sir Rupert Meyers.

Environment Minister Barry Cohen presented the completed strategy to Cabinet in 1984 as ‘a blueprint for tackling environmental problems’.

This presented the Government with an important opportunity to adopt a set of high-level objectives and principles of environmental policy and to translate these into action.

However, the States were tepid towards the strategy, even though they all ultimately endorsed it, and the Government’s central agencies gave some advice of which Sir Humphrey would be proud: that advice was summarised in the cabinet submission as ‘the definition of endorsement should not include a commitment to implement the Priority National Actions’!

Cabinet thus squibbed a major opportunity for early action, endorsing the strategy in principle and deciding that it would consider implementation later.

Of course, ‘later’ never came. This was despite Hawke emphasising in the published version that ‘[t]he real significance of the strategy … will be measured not so much by the words it contains but by the actions it generates’!

Unfortunately, this was by no means the last occasion on which Australian governments would talk the talk but not walk the walk.

More talking the talk …

This same failure can also be seen in Australia’s contribution to the OECD during this period.

Australia played significant role in persuading OECD environment ministers in 1985 to commit their governments to ‘an integrated approach, with a view to ensuring long-term environmental and economic sustainability’.

Indeed, in deploying the ‘natural capital’ metaphor in his speech to the meeting, Australia’s delegation leader, Employment Minister Ralph Willis, placed himself at the very cutting edge of policy:

“To our cost we have given inadequate attention to the need for an environmentally and economically integrated approach to the management of natural resources or ‘natural capital’…It is in our mutual interest that each country should manage its ‘natural capital’ as efficiently as possible and with the same concern as accorded the efficient use of other physical, financial and human capital.”

Domestically however we did nothing to develop programs based on maintaining natural capital.

In the meantime, the government had established national State of the Environment (SoE) reporting in 1985. The second SoE Report in 1986 reported that much had been achieved in establishing institutions, enacting laws and implementing programs, but warned that “continuation of these efforts is essential, and important environmental problems remain.”

And one of its conclusions was that “greater emphasis [needs] to be given to developing anticipatory policies designed to prevent future problems …”

Displaying a tin ear, the Government promptly discontinued SoE reporting as a budget savings measure. (National SoE reporting was re-established in 1996.)

Not the end of the story

If the Hawke Government were an environmental policy student in 1985, its report card would start with an A+, followed by a string of D’s. The card would bear the teacher’s comment that ‘this talented student has lost interest and is skipping class’.

However, things began to change in the lead-up to the 1987 election and Hawke would go on to become, in my view, Australia’s most pro-environmental Prime Minister to date.

But that’s another story for a future blog.

Banner image: The bright triangle ‘no dams’ sticker was emblematic of the Franklin Dam protests. It was the first big environmental issue tackled by the new Hawke Government in 1983.

Silver bullets only work in fairy tales so don’t make them policy priorities for climate change

Simple solutions for complex problems don’t exist and it’s dangerous to think they do

By David Salt

The Morrison Government is placing enormous faith in silver bullets to solve Australia’s biggest challenges. And that should worry every Australian because silver bullets are based on faith, not evidence.

Consider, for starters, their underwhelming response to the corona pandemic.

Simple solutions for complex issues

First they told us (sold us) a covid app would be our passport to living free. If enough people signed up to it, they promised, it would be the key to unlocking our economy. Costing millions of dollars to develop and promote, the COVIDSafe app was indeed supported by most Australians but, unfortunately, it quickly sank without a trace as its promise of infection tracing proved hollow.

Then they reckoned AstraZeneca would be a silver-bullet vaccine enabling an exit from pandemic living, and they put all their (and our) eggs into the AZ basket. So sure of this were they that they supported the production of AstraZeneca in Australia ensuring there would be no supply line issues. And, because they were so confident in the AZ fix, they turned their back on the Pfizer vaccine when it was offered to Australia mid last year.

Unfortunately for the government (and all Australians), the AZ vaccine had a rare blood-clotting side effect (limiting who could get it) and it wasn’t as effective against COVID variants. The Pfizer vaccine, on the other hand, came up trumps but we hardly had any. The consequences of this are playing out as I write this.

There was never going to be a simple solution to the COVID pandemic – too many variables, too many things changing over time, too many fallible humans acting in irrational ways – and we really should never have expected one. But we SO hoped for one, and that’s what politicians excel at – selling hope.

They sold us fool-proof technology, gold-standard tracing and guaranteed vaccine solutions without risk, and we wanted to believe it was true. But, as American journalist Henry Mencken described it: “For every complex problem, there’s a solution that is simple, neat, and wrong.” And how wrong have we been so far in this pandemic.

The biggest silver bullet

But the biggest silver bullet being deployed by the Morrison Government is their promise that climate change will be easily solved by “technology not taxes.”

This isn’t even a ‘real’ silver bullet but some ambiguous future aspiration held up to convince voters that they (we) don’t have to worry about climate change; we don’t have to change or sacrifice how we live (symbolised by the term ‘raising taxes’) because science and technology will come to our rescue. A simple sales pitch to solve a massive and complex problem. And though it’s not credible, it’s a sales pitch that had wide resonance at the last national election where the price of responding to climate change was front and centre but the cost of ignoring it was largely ignored.

Of course the phrase ‘this isn’t even a real silver bullet’ is problematic in itself. That’s because ‘silver bullets’ aren’t real. They are a weapon from folklore, a means of killing werewolves (or in some fairy tales, witches). Given their mythical value, the term has become a metaphor for a simple, seemingly magical and conclusive solution to a difficult and diabolical problem, like killing a powerful werewolf.

Given our politicians predilections for selling hope, silver bullets are their weapon of choice. Just keep in mind they aren’t real.

Beyond the fact that they’re mythical and don’t work, the problems associated with believing in silver-bullet solutions are legion. High up on the list are self-deception, lost opportunity cost and wasted time.

Dangerous on so many levels

If you buy into the belief that climate change can be fixed with a silver bullet – like say geoengineering a planetary heat shield to bring down temperature – than you’re deceiving yourself that you understand climate change. Instead of seeing our planet as a massively complex system you’re accepting the notion that the environment is a simple thing with knobs that humans can twiddle to optimise conditions. This is a dangerous self-deception held by some of the world’s most powerful people (who like to think they are in control). Former US Secretary of State Rex Tillerson, for example, is a proponent of geoengineering and once referred to climate change as “just an engineering problem”.

And if we prioritise our limited resources to develop these silver bullet solutions because we’re kidding ourselves about the nature of the problem, then we’re not investing in the many capacities we need to stay resilient in a changing world. Believing in a quick fix, a magical solution that solves the issue without wholesale change, means we don’t have to tackle the deep, multi-scaled dimensions of the problem. If you can convince the electorate, for example, that pumping sulfur dioxide particles into the stratosphere will keep the Earth cool, we stop investing in all the other things we should be doing in bringing down carbon emissions at all levels of society (which might explain why the fossil fuel sector is quite keen on geoengineering fixes).

Failing to acknowledge the real nature of the problem and investing in the wrong solution is obviously not a winning policy formulation, and this will eventually be apparent (in the long run Nature can’t be fooled). Unfortunately, by then the problem is usually worse, the damage often irreversible and addressing the issue a lot more expensive. If we opt for geoengineering solutions to climate change, following the same example, we may well be investing in silver bullets that use up what time we have to steer humanity away from the yawning abyss of climate breakdown. Indeed, it has been shown that the cooling effects of sulfur dioxide injected into the stratosphere by natural events (eg, the eruption of Mount Pinatubo in 1993) are short lived. They last a year or two then the heating trend caused by anthropogenic carbon emissions returns to its original trajectory as if the cooling effect had never occurred.

Firing silver bullets at coral

Consider the consequences of relying on silver bullets to save the Great Barrier Reef. It’s recently endured three mass bleaching events from rising water temperatures. The scientific consensus is that the Great Barrier Reef is cactus if humanity can’t radically reduce carbon emissions.

The Australian Government has devoted its energies to blocking UNESCO’s efforts to declare the reef ‘in danger’ while telling the world we’re the world’s best reef managers. It’s promoting and investing in technological solutions such as identifying heat tolerant coral species that can cope with increased temperatures, cloud brightening (a form of geoengineering) to reduce the temperature of the sun, and even massive water fans to promote mixing and bring down water temperatures.

While I am sure there is merit in all of these investigations, they don’t address the central issue of climate change and increasing temperatures, and they won’t save the Great Barrier Reef. They are silver bullets deployed by the government to convince the electorate that a magical solution exists for a diabolical problem. And the solutions they are promoting (as the world’s best reef managers) don’t involve voters having to change behaviour or a need for the economy to be restructured.

The cost in believing in these silver bullets (above and beyond that they won’t work) is a failure to acknowledge what the real problem is, a diversion of resources away from solutions that do address the challenge, and the loss of critical years during which the Reef slips further and further into irreversible decline.

Myths

The metaphor of silver bullets is now firmly part of the political lexicon. Next time you hear it being invoked, ask where the werewolves are and then remind the speaker that simple solutions to complex problems are simply myths.

Image by illusion-X from Pixabay