2. Developments in Professional Ethics in Response to Climate Change

2.1 Climate Conscious Lawyering

This book invites you to become a ‘climate conscious lawyer’, and chapter 1 briefly introduces the term ‘climate conscious lawyering’. Chief Judge Preston^[1] discusses five elements of a climate conscious approach, some of which we have touched on above, and the others we turn to now.

2.1.1 Holistic Legal Advice

As discussed above, the Law Council of Australia (‘LCA’) and the NSW Guidelines now acknowledge the importance of advice that considers potential climate risks, liabilities and reputational damage that may flow from a client’s proposed actions.

2.1.2 Identification, Interpretation and Application of Legal Rules

Legislation and other legal rules require interpretation. Preston suggests that lawyers adopt an interpretation that promotes climate change goals, ‘provided that doing so is consonant with and required by the principles of genuine interpretation’.^[2] Further, given that the law in many areas is developing rapidly in the face of climate change, lawyers should advise with a view to how courts of the future are likely to rule on liabilities and responsibilities for climate-related harms.

2.1.3. Ethical Duties of Lawyers

In Preston’s view, ‘ethical thinking about climate change and its consequences should pervade all aspects of legal practice’.^[3] As discussed above, climate change is increasingly relevant to all areas of legal practice, so this exhortation applies to all lawyers.

2.1.4. Overriding Duty to the Court

We have discussed this aspect of lawyers’ duties above, but it is worth quoting Preston on this, because he considers this duty includes upholding the values of the law, one of which is justice (broadly defined and including climate justice):

Climate conscious lawyers should advise and act in ways that uphold and advance the fundamental values and integrity of the legal system, including climate change justice. These are moralistic standards which lawyers should strive to achieve and against which their advice and actions can be assessed. For example, their advice and actions should be consonant with the … [promotion of] peaceful and inclusive societies for sustainable development, including a just transition to carbon neutrality, and promoting access to justice for all, including people who have suffered and will suffer harm due to climate change.^[4]

2.1.5. Personal Ethics Approach

Preston outlines several ways that lawyers can align their daily legal practice with their personal moral convictions. He suggests that lawyers discuss the moral aspects of client projects with their clients, noting that, in his experience, clients are prepared to modify their actions to lessen the social and environmental impacts of their activities.^[5] One aspect of such counselling is to promote human rights in corporate practice (see further below). Another aspect is to encourage corporate clients to adopt sustainable business models. Preston also encourages lawyers to be active in areas of law reform, pro bono work and ‘intellectual activism’ to address the climate crisis. As noted above, some lawyers are already involved in such action — for example, acting in climate change litigation, reconceptualising how law might regulate corporate activities toward sustainability or, more radically, re-imagining law as part of an earth-centred system of governance.^[6]

2.2 Human Rights and Climate: How Will This Impact Lawyers’ Duties?

Developments in human rights law are material insofar as they may extend clients’ obligations to consider and address climate harms, and so shape the legal and ‘ethical counselling’ landscape identified by Preston. Since international human rights standards are not embedded significantly in either the Constitution or Australian federal law, human rights law has played a more limited role in strategic climate litigation in Australia than it has in more rights-based constitutional regimes. Nonetheless, as the UN Human Rights Commission decision in the Torres Strait Eight claim shows, this does not reduce the federal government’s responsibility under international law.^[8] Moreover, a number of jurisdictions — the ACT, Victoria and Queensland — have passed human rights legislation (we refer to these as the ‘human rights jurisdictions’), which is having direct effects on climate-related legal work. This evolving framework plays at least a potential role in climate change lawyering in four ways.

(1) As an interpretative aid: courts in the human rights jurisdictions are under an interpretative duty to seek compatibility with human rights (so far as possible) when construing legislation.^[9] Outside of those jurisdictions, human rights principles play a more restricted role, insofar as the presumption that legislatures do not legislate contrary to ‘fundamental rights’ extends only to established common law rights under Australian law.^[10]

(2) As a formal basis for challenging federal or state government decision-making: again, the scope for action is limited. Petitioners may invoke the jurisdiction of the UN Human Rights Committee, which has the power to make declarations that the government has breached the petitioners’ fundamental rights under the International Covenant on Civil and Political Rights (‘ICCPR’).^[11] In the human rights jurisdictions, state courts are empowered to address breaches of human rights obligations by governmental and some quasi-governmental bodies.^[12] Enforcement of rights under the Acts is thus only ‘horizontal’, between citizen and state; there is no ‘vertical’ right of action as between citizens.

(3) Courts are also obliged in the human rights jurisdictions, when acting as administrative decision-makers,^[13] to give proper consideration to any relevant human rights engaged by an application to them. This has particular significance in environmental and planning matters, where human rights norms are being referenced to challenge the extension or development of fossil fuel extraction activities. Thus, in Waratah Coal, the Queensland Land Court determined that, when making mining application and environmental authority decisions, its administrative function is enlivened, and ss 16 (right to life), 28 (cultural rights of First Nations peoples), 26 (rights of children), 24 (right to property), 25 (right to privacy) and 15 (right to equality) of the Human Rights Act 2019 may be engaged.^[14] At the same time, it has also been recognised that climate change and its human rights impacts are not the only factors that have to be taken into account by decision-makers in such matters.^[15] Applications must be determined on their individual merits, and that involves a complex balancing of ‘competing needs and considerations’.^[16] In sum, this remains a fast-moving area of law, and human rights, while of acknowledged importance, are by no means a magical ‘trump card’.

(4) As part of a growing ‘human rights due diligence’ (‘HRDD’) regime for companies, both voluntary and mandatory HRDD obligations are an important feature of the transnational business environment. The UN’s Guiding Principles on Business and Human Rights (‘UNGP’)^[17] have become the ‘authoritative global standard’ on corporate human rights performance.^[18] ‘They create expectations that all business enterprises should respect human rights in their governance arrangements and systems, business operations, and across their value chain’ (UNGP 14). Moreover, the UNGPs also expect that states should regulate corporations in their jurisdiction in a way that encourages compliance with human rights, and HRDD is a way to achieve that. The approach in Australia to HRDD has so far been voluntarist, but informal commercial and reputational pressure on businesses to develop HRDD mechanisms appears significant (see part 3).

It should also be noted that although private entities such as business corporations are not ordinarily within the scope of the states’ human rights legislation, they are permitted by the ACT and Queensland Acts (but not the Victorian Charter) to ‘opt in’ to these legislative commitments. So far, few companies have chosen to do so,^[19] but there is an opportunity here for corporates to position themselves, by opting in, as leaders in environmental and social governance/HRDD progress.