Glossary

Access to justice is a central element of the rule of law. It refers to the need for the system to be equally accessible to all and lead to results that are individually and socially just.[1]

[1] Mauro Cappelletti and Bryant Garth, ‘Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective’ (1978) 27(2) Buffalo Law Review 181).

Latin for ‘a guilty act’; the physical or external element(s) that need to be proved for the accused to be found guilty of criminal offence; usually some form of conduct (act or omission), circumstance in which the conduct occurred, or the result of the conduct. See also mens rea.

The process of adjustment to actual or expected climate and its effects (IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability).

Attribution science refers to ‘the process of evaluating the relative contributions of multiple causal factors to a change or event with assessment of confidence’.[1] In the context of climate change, attribution science is used to provide evidence of: (i) how human activities affect the global climate system (climate change attribution); (ii) how changes in the global climate system affect other interconnected natural and human systems (impact attribution); (iii) how changes in the global climate system affect the frequency, magnitude, and other characteristics of extreme events (extreme event attribution); and (iv) the relative contributions of different actors and activities to global climate change (source attribution).[2]

[1] IPCC, Climate Change 2021: The Physical Science Basis, Glossary

[2] Michael Burger, Jessica Wentz, and Daniel J. Metzger, ‘Climate Science and Human Rights: Using Attribution Science to Frame Government Mitigation and Adaptation Obligations’ in César Rodríguez-Garavito (ed), Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action (Cambridge University Press, 2022) 223.

Australia’s lead regulator for implementing and enforcing Australian Consumer Law.

A form of conditional liberty; person arrested for a criminal offence may be released from custody on the condition that they undertake to appear in court at a specified future time and potentially subject to other conditions.

Breaking the law with the aim of persuading the authorities to change the law or government policy; the ‘civility’ of such law-breaking is usually seen as requiring that it be done in public, in good conscience, with a preparedness to be arrested, and without violence.

The idea that consumers can make purchasing choices that will shape the market to drive change for climate mitigation and adaptation because the more consumers purchase more climate-friendly products, the more businesses will be incentivised to take climate action to attract more consumers.

Greenwashing where the false, misleading or deceptive environmental claims relate to the climate credentials (mitigation or adaption) of a product, service, brand or company.

Cases where climate change is a central issue in the dispute, climate change is raised as a peripheral issue, climate change is one motivation behind the case, or where the case has implications for mitigation or adaptation (Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy, Cambridge University Press, 2015, p. 8).

A form of damages that aims to put a person, as nearly as possible, in the position that they would have been had the contract been performed or the tort not been committed.[1]

[1] Lewis v Australian Capital Territory (2020) 271 CLR 192.

A sum of money awarded to a plaintiff at the conclusion of a successful lawsuit in satisfaction for the wrong suffered by the plaintiff.

An order made by a court that conclusively pronounces the existence or non-existence of rights or obligations concerning the parties before it.[1]

[1] Katy Barnett and Sirko Harder, Remedies in Australian Private Law (2nd ed, Cambridge University Press, 2018) 420.

‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’ (Independent Expert Panel for the Legal Definition of Ecocide).

A statutory defence to a criminal charge, whereby an accused person is not guilty if they reasonably believe that ‘circumstances of sudden or extraordinary emergency exists, committing the offence is the only reasonable way to deal with the emergency, and the conduct is a reasonable response to the emergency’ (Commonwealth Criminal Code 1995, s 10.3); the wording of the defence differs across the jurisdictions; based upon the common law defence of necessity, which still applies in New South Wales, South Australia and Tasmania.

An energy source formed in the Earth’s crust from decayed organic material. The common fossil fuels are petroleum, coal, and natural gas.[1]

[1] U.S. Energy Information Administration (EIA), Glossary <https://www.eia.gov/tools/glossary/index.php?id=Fossil%20fuel#:~:text=Fossil%20fuel%3A%20An%20energy%20source,%2C%20coal%2C%20and%20natural%20gas>.

Sources of greenhouse gases – which may be natural or anthropogenic (i.e. caused by human activity).

Gases that trap heat in the atmosphere.

Gases that absorb heat (infrared radiation) from the Earth’s surface and reflect the heat back to the Earth. The main greenhouse gases are Carbon Dioxide, Methane, and Nitrous Oxide.[1]

[1] Commonwealth Scientific and Industrial Research Organisation (CSIRO), Greenhouse gases <https://www.csiro.au/en/research/environmental-impacts/climate-change/state-of-the-climate/greenhouse-gases>.

False, misleading or deceptive marketing claims about the environmental credentials of a product, service, brand or company.

A jurisdiction (international, regional, national, or subnational) in which human rights legislation is in operation.

A coercive remedy originating in equity in the form of a court order compelling a party to do or not to do something.

The United Nations body for assessing the science related to climate change.

The Intergovernmental Panel on Climate Change (IPCC) is an intergovernmental body of the United Nations that publish interim reports advancing scientific consensus about climate change caused by human activities.

Examination by a court of the legality (rather than the substantive merits) of an administrative decision.

Jurisdiction refers to the scope of a court’s authority to decide matters. It comes from the Latin ‘juris’ (the law) and ‘dicto’ (to say or declare).

The terms ‘just transition’ refers to the transition away from a fossil fuel economy to low-carbon and environmentally sustainable economies and societies.   It is ‘just’ if no one is left behind during the transition, for example workers in the fossil fuel industry, who should be supported to learn other skills they can use in other industries.[1]

[1] United Nations Committee for Development Policy, ‘Just Transition’ (Web page, 2023) <https://www.un.org/development/desa/dpad/wp-content/uploads/sites/45/CDP-excerpt-2023-1.pdf>

Involves the claim having the quality of being capable of being considered legally and determined by the application of legal principles and methods by the courts.

Changing laws, or law reform, involves processes and practices that might involve government institutions and non-government agencies, protests, court decisions and elections.

The negative impacts of climate change that occur despite, or in the absence of, mitigation and adaptation.

An order issued by a superior court compelling a body exercising public authority to fulfil a public duty that remains unperformed.

Latin for ‘a guilty mind’; the state(s) of mind or fault element(s) that need to be proved for the accused to be found guilty of criminal offence, i.e. intention, knowledge, recklessness, dishonesty. See also actus reus.

Review of the correctness of an administrative decision, taking into account issues of law, fact, policy and discretion. Merits review is generally undertaken by an administrative tribunal rather than a court.

A human intervention to reduce emissions or enhance the sinks of greenhouse gases (IPCC, Climate Change 2022: Mitigation of Climate Change).

The term person, or similar expressions to denote persons in law, include a body politic or corporate, as well as an individual.

The 11 law subjects required to be successfully completed for candidate status for admission into practice as a legal practitioner in Australia.

Court action ‘intended to achieve change to law and policy that will benefit individuals and communities beyond those directly involved in the campaign'.[1]

[1] Andrea Durbach, Luke McNamara, Simon Rice and Mark Rix, ‘Public Interest Litigation: Making the case in Australia’ (2013) 38(4) Alternative Law Journal 219, 219. It should be noted that defining ‘public interest’ is notoriously challenging, and the term has not been definitively defined by legislation or by the courts: see, e.g., Chris Wheeler, ‘The Public Interest Revisited - We Know It’s Important But Do We Know What it Means?’ (2016) 72 Australian Institute of Administrative Law Forum 34–49.

A regulatory framework governs the conduct of companies, organisations and individuals operating in the regulated industry or sector. The framework comprises legislation (Acts, regulations and rules) as well as procedures, guidelines and standards.

Relevant factors, derived from past cases, to be considered when determining whether a duty of care is owed in a negligence claim when there is no existing precedent.

‘Direct GHG emissions occur from sources that are owned or controlled by the company, for example, emissions from combustion in owned or controlled boilers, furnaces, vehicles, etc.; emissions from chemical production in owned or controlled process equipment’ (The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, 2004).

‘GHG emissions from the generation of purchased electricity … Scope 2 emissions physically occur at the facility where electricity is generated’ (The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, 2004).

‘Scope 3 emissions are a consequence of the activities of the company, but occur from sources not owned or controlled by the company. Some examples of scope 3 activities are extraction and production of purchased materials; transportation of purchased fuels; and use of sold products and services’ (The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, 2004).

The division of government responsibilities between the legislature, which makes the law, the executive, which administers and enforces the law, and the judiciary, which interprets and adjudicates disputes about the law.

Any process, activity or mechanism which removes a greenhouse gas … from the atmosphere (IPCC, Climate Change 2022: Mitigation of Climate Change).

A ‘social license to operate’ refers to acceptance by the community of an organisation’s standard business practices.[1]

[1] The Ethics Centre, ‘Ethics Explainer: Social Licence to Operate’ The Ethics Centre (Webpage, 23 January 2018) <https://ethics.org.au/ethics-explainer-social-license-to-operate/>.

(or locus standi, from the Latin ‘a place to stand’) is the right to bring a legal action or challenge some decision.

‘Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs… In its broadest sense, the strategy for sustainable development aims to promote harmony among human beings and between humanity and nature.’[1]

[1] Report of the World Commission on Environment and Development: Our Common Future, U.N. Doc. A/42/427, Annex (20 March 1987) 81. The Brundtland Report definition of ‘sustainable development’ was adopted by the United Nations General Assembly: United Nations General Assembly, Report of the World Commission on Environment and

Development (NRES/42/187) 11 December 1987.

Adverse effects experienced in one State caused by or originating from an area under the jurisdiction of another State.