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).

Centred on the human. Western thought tends to be anthropocentric because it puts human beings and human values at the centre of everything.

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.

Co-curriculums are learning activities and experiences that extend beyond the formal academic programs while complementing them. In legal education, co-curricular programs often focus on professional practice, skills development, and addressing contemporary issues. Climate and sustainability co-curricular programs have gained prominence in higher education in the last decade. They aim to enhance students’ understanding of climate-related issues, build skills for assisting clients affected by climate change or hoping to create positive climate impact and encourage students to reflect on current climate-related laws and policies through bridging theoretical learning with practical experience.

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.

There are many definitions of climate justice. The definition by the Climate Justice Global Alliance states that ‘climate justice advocates for equitable solutions that prioritize the needs of those who are most affected by climate change, strive to reduce greenhouse gas emissions, and ensure that the burdens and benefits of climate action are distributed fairly, taking into account historical and systemic inequalities.’ Climate justice has various aspects:

- Distributive justice: paying attention to inequalities in the causes, burdens of addressing and experience of impacts.
- Procedural justice: ensuring participatory, accessible, fair and inclusive processes to address climate change.
- Recognition justice: centring voices of those who have historically been marginalised, such as First Nations in Australia.
- Reparative or corrective justice: considering what actions are necessary to redress and repair harms caused

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).

Climate wars in Australia refers to the acute political contestation and polarisation in Australia in relation to the necessity and level of state response to climate action.

Clinical Legal Education (‘CLE’) is a form of experiential learning in which law students are placed in the role of lawyers working under the supervision of qualified lawyers and learn by doing in a clinic (a clinical legal education subject or program) setting. Key is the engagement in a process of supervisory feedback and reflection on experience.

The community legal centre (‘CLC’) movement began in the early 1970s, driven by students, academics, young workers and lawyers. Currently, there are approximately 200 CLCs across Australia. They provide free and independent legal support to people experiencing hardships but unable to access regular paid legal services due to socioeconomic disadvantage. Their services span across civil, family and criminal law. In addition to providing legal services, CLCs also participate in community legal education, law reform and advocacy to mobilise change and support the community in a holistic way.

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.

Compensatory federalism describes the operation of a federal system of government where there are overlapping, dual sources of power across the national and sub-national governments, and this allows for the sub-national units to ‘step up’ (or ‘compensate’) when the national government fails to act.[1]

[1] Alan Fenna, ‘Climate Governance and Federalism in Australia’ in Alan Fenna, Sébastian Jodoin, and Joana Setzer (eds) Climate Governance and Federalism: A Forum of Federations Comparative Policy Analysis (CUP, 2023), 1, 28-29.

The idea that people should pursue their individual interests, and realised their personal identity and social status through the consumption of various goods and services.

Encompasses both ontology and epistemology, and refers to a way of understanding normative relations in the world and the universe. The term is often used to refer to a culturally situated way of being and knowing, such as Indigenous cosmology or Christian cosmology, which each offer a distinct account of creation and meaning. While each cosmology exists among and in relationship with others, in what has been called a ‘pluriverse’, some cosmologies make claims to universality. Cosmology also refers to the western scientific study of the universe and its origins.

Country is a word that holds many different meanings for First Nations people, especially given the diversity of First Nations across Australia. There are certain concepts and ideas about Country that many First Nations people share. For instance: Country is alive. Country is timeless. And Country is us. Country refers to the lands, waterways, seas and skies to which First Nations peoples are connected through ancestral ties and family origins.  Country also encompasses relationships, such as relationships with plants, relationships with animals and relationships with Ancestors. Country is a proper noun, which is why it should be capitalised.

The skills of cultural awareness/competency requires a recognition that Indigenous knowledges are an important, unique element of Australian society, which contributes to economic productivity by equipping people with the capacity to work across Australian society and in particular with First Nations communities.

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.

Decolonisation occurs when First Nations people or non-Indigenous people reverse impacts of colonisation. Decolonisation seeks to remedy the aftermath of colonisation through direct action and listening to the voices of First Nations people. First Nations people can decolonise through self-determination, that is taking care of their own affairs. Non-Indigenous people can decolonise by making a conscious effort to prioritise and learn about First Nations culture and values.

Deliberative multilateral forums (such as citizens assemblies) are forums designed to bring together a wide cross-section of the public to deliberate in a structured and informed way to understand issues and reach collaborative decisions.

Earth or ecologically-centred.

‘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.

Provisions in a constitution that require governments to undertake environmental protection or limits on government power to restrict environmental degradation. These include duties placed on governments to protect the environment, rights of citizens to a healthy environment and rights of nature itself to flourish.

A theory of knowledge. Epistemology asks how human beings know what (we think) we know. Is knowledge always socially situated? Is knowledge necessarily subjective?

s 79 (commonly referred to as the expert opinion exception (though the section does not actually use the term ‘expert’), is an exception to the exclusionary rule in s 76. It allows certain witnesses to offer opinion evidence, subject to the threshold questions of relevance (discussed above), where the witness possesses ‘specialised knowledge based on training, study or experience’ and the opinion is ‘wholly or substantially based on’ that specialised knowledge. The recent High Court decision in Lang v The Queen [2023] HCA 29 has, arguably, unified the approach for all Australian jurisdictions, by relying on the UEL framework in a case from Queensland (one of the remaining common law jurisdictions). While cases have held that the (specialised) knowledge, ‘“connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”’ (see Re Tang [2006] NSWCCA 167, [138] quoting Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)), Australian courts have rejected arguments that s 79 should be interpreted to include an expectation that the expert opinion has to be shown to be reliable or trustworthy before it is admitted.

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>.

Fossil fuel hegemony refers to the dominant, and over-represented influence that the fossil fuel industry has in relation to state actions (including laws, policies and political discourse) to maintain the status quo and delay actions combat climate change.[1]

[1] Christopher Wright, Daniel Nyberg and Vanessa Bowden ‘Beyond the Discourse of Denial: The Reproduction of Fossil Fuel Hegemony in Australia’  (2021) 77 Energy Research & Social Science 77.

Free Prior and Informed Consent (FPIC) is a right to be consulted and included in decision-making about projects and activities impacting on First People and their lands.  It is contained in Articles 18 and 19 of the United Nations Declaration on the Rights of Indigenous Peoples.  The essential elements of FPIC are:

Free - should imply no coercion, intimidation or manipulation. This ensures that Indigenous people can make decisions about projects or activities affecting their lands, territories, and resources in an autonomous and self-directed manner.
Prior – consent should be sought in advance and with sufficient time for community consultation and decision-making processes to take place.
Informed – should imply that information is provided that covers the nature and scale of any project or activity; its purpose, locality and duration; and an assessment on the likely economic, social, cultural and environmental impact, including potential risks; fair and equitable benefit-sharing; and any persons and organisations involved.

A Commonwealth government tax paid by employers on non-salary benefits provided to employees or their associates as a reward for services, such as private use of a car or reimbursement of personal expenses. FBT is separate from income tax and is calculated on the grossed-up value of the benefit.[1]

[1] Fringe Benefits Tax Assessment Act 1986 (Cth).

Future Generations Commission is a dedicated institution that holds the government to account for its actions on behalf of future generations.

Green lawfare is a term used by opponents of climate action to describe ‘the law and the institutions and processes of the law … to conduct a kind of social, political or environmental warfare by other means.’[1]

[1] George Brandis, ‘“Green lawfare” and Standing: The View from Within Government’ 90 AIAL Forum.

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

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.

As Indigenous laws in Australia are handed down, generation to generation, in the form of oral history, testimony about the content of those laws would be contrary to both the rule against hearsay and the rule against opinion evidence. Section 78A of the UEL is an attempt to overcome these dual problems in relation to evidence about customary indigenous laws in Australia. The general rule established in s 76 is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 78A states that an opinion expressed by a member of an indigenous group about the existence or non-existence, or the content, of the traditional laws and customs of that group, may be admissible as evidence of the existence of that traditional law or custom.

Aboriginal and Torres Strait Islander peoples are the first peoples of Australia, meaning they were here for thousands of years prior to colonisation. Current research confirms that Aboriginal and Torres Strait Islander peoples have lived on the Australian continent for upwards of 60,000 years. While estimates vary, this figure represents the most widely accepted timeframe based on available evidence. Australia is made up of many different and distinct Aboriginal and Torres Strait Islander groups, each with their own culture, language, beliefs and practices. Aboriginal people come from the mainland of Australia and its surrounding islands.  The Torres Strait region is located between the tip of Cape York and Papua New Guinea and is made up of over two hundred islands. First Nations is a collective term that refers to Indigenous peoples of a nation, region or place. Indigenous peoples refers to the people with historical and ancestral ties to a place that pre-date colonisation, and is the term used by the United Nations in its Declaration on the Rights of Indigenous Peoples. All these collective terms can be used respectfully. As proper nouns, all should be used with a capital letter.

The Uluru Statement from the Heart expresses the idea of sovereignty as a spiritual notion. It expressed it this way: ‘The ancestral tie between Country and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors’. Sovereignty means exercising autonomy, both at an individual level and as a people. It encompasses an obligation to look after Country for future generations. Aboriginal and Torres Strait Islanders have always been sovereign peoples, who practised sovereignty differently from European nation states. Their obligations were not to some hierarchical god, represented by a monarch. Their obligations were to their law and they were responsible for the maintenance of Country for the benefit of future carers of law and Country.

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

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.

Judicial Notice is a common law doctrine which has been adopted by the Uniform Evidence Laws.  Section 144 of the UEL provides that provides that “proof is not required about knowledge that is not reasonably open to question and is (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned”.   The Australian Law Reform Commission notes that matters of ‘common knowledge’ is understood to mean those facts which are so broadly understood that requiring confirmation would be a waste of effort.  For instance, the fact that on a sunny day the sky appears blue, or that sea water is salty.   Note that while evidence is not required for matters that fall within the doctrine, parties are not precluded from leading evidence about these matters.

Section 144(2) provides that a judge may acquire common knowledge or knowledge sourced in an authoritative document in any way that the judge thinks fit.  If the judge decides that judicial notice applies, the court (including a jury, if there is one) must take this common knowledge into account (s 144(3)).

Finally, s 144(4) provides that parties to a proceeding must be given the opportunity to make submissions as to how this common knowledge should be acquired or taken into account. The ARLC states that this requirement reinforces judicial obligation to accord natural justice to parties to a proceeding.

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.

An approach to drafting a constitution that involves the inclusion of detailed limits on government power to be enforced by courts. This contrasts with constitutions written in a political constitutionalist model. Such constitutions are typically more skeletal. They set up a robust democratic system and rely on political means, such as public debate and parliamentary scrutiny, to weed out government wrongdoing.

‘Preparedness’ refers to a state of being ready for something to happen, especially for a disaster.[1] In the context of disaster law and climate change, ‘legal preparedness’ can be understood as activities or initiatives that aim to reduce the risk of legal issues arising for individuals or communities prior to a disaster/extreme weather event occurring and to equip them with tools to manage and recover from legal challenges arising from such events.

Examples of legal preparedness initiatives can be observed in the work of community legal centres. They include:

- Sharing legal information through various channels;

- Conducting community legal education to raise awareness of potential legal problems, such as insurance disputes, and strategies for legal protection;

- Encouraging the safe keeping of key legal documents by promoting ‘digital inclusion’; and

- Developing legal information resources to highlight the intersection of legal problems caused by disasters.

[1] ‘Definition of ‘preparedness’’, Collins (Web Page) <https://www.collinsdictionary.com/dictionary/english/preparedness>

Section 135 was included in the proposed uniform evidence law to replace the concept of ‘legal relevance’ under the common law. Section 55 of the UEL refers to the capacity of the evidence to ‘rationally affect the assessment of the probability of the existence of a fact in issue’ and is a low threshold requiring only a logical connection between the evidence in questions and proof of a fact in issue. By contrast, ‘legal relevance’ was said to enable the judge to make a qualitative assessment of the probative value evidence and exclude evidence where the connection was considered to be insufficient. Section 135 allows a judge to exclude evidence where the probative value of the evidence is substantially outweighed by the risk that it will be, ‘misleading, confusing or cause an undue waste of time’. The section also allows the judge to exclude evidence carrying a risk of unfair prejudice where that risk substantially outweighs the probative value of the evidence. In criminal cases, under s 137, the trial judge must exclude prosecution evidence where the probative value of the evidence is outweighed by the risk of unfair prejudice to the defendant. The scope of the application of s 135 or 137 has been narrowed, however. Following a controversial High Court majority judgment, the current position in Australia is that in undertaking the balancing exercise contained in the UEL, s 135 (that applies in all cases) and s 137 (that applies only in criminal cases), probative value is to be assessed without considering the reliability of the evidence in question, as reliability is to be reserved for the finder of fact. In the context of civil litigation, the judge as both the trier of fact and of law and so judges are generally less likely to exercise their discretion to exclude evidence, preferring such considerations to be taken into account when considering the weight to be given to evidence.  However, find that even ‘at its highest’ there is some scope for the trial judge to find that the evidence is ‘weak and unconvincing’ and exclude it under either s 135 or s 137.

The holder of legal rights, ordinarily theorised as a construct of law. Natural persons are legal subjects when they are recognised as such by a legal system. Corporations are made into legal subjects by corporations law. Some have argued that legal subjectivity ought to be extended to natural entities, such as rivers.

Liberal democracy / Liberal democratic tradition refers to a system of government that reflects three key conditions, including democratic government (usually through representative government based on regular elections), limited government (through a number of mechanisms including the rule of law, independent judiciary and judicial review, separation of powers and federalism), and the protection of individual liberties against the state, with a priority given to civil and political rights.

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).

Mutual constituting refers to a dynamic relationship where phenomena fundamentally and iteratively shape each other.

The Organisation for Economic Co-operation and Development (OECD) is an intergovernmental organisation of 38 member countries, including Australia, that collaborates with over 100 nations to develop evidence-based analysis and international standards. Funded by its members, the OECD plays a key role in shaping public policy and informing global debates on economic and social governance.[1]

[1] Organisation for Economic Co-operation and Development, About the OECD (Web Page) https://www.oecd.org/about/.

A field of philosophy/theory that addresses what exists; the theory of being and of what is fundamental to existence. For instance, the question of whether human culture is fundamentally different from nature is an ontological question

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

A tax on a market activity that is designed to internalise a negative external cost of that activity that is not otherwise included in the market price. An example of a negative externality is the impact of greenhouse gases emitted by an industrial activity.[1]

[1] Arthur Cecil Pigou, The Economics of Welfare (London: Macmillan & Co, 1920)

Policy capture refers to the ‘process of consistently or repeatedly directing public policy decisions away from the public interest towards the interests of a specific interest group or person. Capture is the opposite of inclusive and fair policy-making, and always undermines core democratic values.’[1]

[1] OECD, Preventing Policy Capture: Integrity in Public Decision Making (2017). https://www.oecd.org/gov/preventing-policy-capture-9789264065239-en.htm

An approach to drafting a constitution that emphasises political institutions and processes to hold governments accountable. The expectation is that political means, such as public debate and parliamentary scrutiny, will effectively weed out government wrongdoing. This contrasts with constitutions written in a legal constitutionalist model. Such constitutions typically include more detailed limits on government power to be enforced by courts.

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

The UEL dictionary defines ‘probative value’ as, ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’ (emphasis added). The probative value of the evidence is the maximum capacity of the evidence to affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. The High Court in IMM v The Queen [2016] HCA 14 has held that in assessing probative value (in the context of balancing it against the danger of ‘unfair prejudice’) a judge is to take the evidence ‘at its highest’, which has been interpreted to mean that a judge cannot to consider the reliability of the evidence when assessing the probative value of the evidence in the context of an admissibility challenge

Public health law aims to create the conditions for people to lead healthy, fulfilling lives. It encompasses the prevention of public health ‘nuisances’ or local/environmental risks to health, infectious disease control, and the prevention of non-communicable diseases, as well as establishing the public health institutions, powers, and functions of government. In addition to public health Acts, the field encompasses dedicated legislation on significant public health threats, such as tobacco control, and motor vehicle and consumer product safety.[1]

[1] Lawrence O Gostin and Lindsay F Wiley, Public Health Law: Power, Duty, Restraint (Oakland, CA: University of California Press, 3rd ed, 2016)

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.

Public law conventionally refers to the law governing the state, specifically, the exercise of state power. It includes the design of institutions exercising state power; the distribution of power amongst these institutions; the nature of their exercise; and the public law principles that traditionally govern their operation (including federalism, representative government, separation of powers and the rule of law).

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.

This is a cultural, legal and philosophical foundation for First Nations people that encompasses the central relationships of life and extends to people and to Country. It embeds the notion of shared responsibility and ongoing obligations.

Under the UEL, ‘relevance’ is a first threshold rule of admissibility. Section 56 of the UEL provides that if evidence is found to be ‘relevant’ then it will be admissible as long as it it not otherwise excluded by other rules (for example, the rule against hearsay, in s 59 or the opinion rule in s 76).  Conversely evidence that is not relevant in the proceedings is never admissible. Relevance is defined in s 55 of the UEL as evidence that “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” (emphasis added). It can include evidence relevant only to the credibility of a witness (which will be relevant indirectly to a fact in issue). The s 55 definition provides a low threshold in so far as all that is required is a rational connection to a fact in issue in the proceedings (if the evidence were accepted); under the common law this was referred to as ‘logical relevance’. The common law concept of ‘legal relevance’ is incorporated into s 135 of the UEL, that allows the judge to exclude evidence where the probative value of the evidence is substantially outweighed by the danger that it will be unfairly prejudicial to a party, be misleading or confusing, of cause or result in an undue waste of time.

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 right of First Nations People to freely determine their political status and freely pursue their economic, social and cultural development. It encompasses the ability for First Nations People to meaningfully assert their agency and freely determine their relationships to colonial and settler colonial states. This right is contained in Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples.  Article 4 also includes the right to autonomy and self-government.

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/>.

Solidaristic ethos refers to the practice of politics that emphasises the shared collective and relational objectives of communities across generations, rather than the individual interests of voters.[1]

[1] Joo Cheong Tham, Democracy and Climate Change, IDEA (2023).

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

Strategic Lawsuits Against Public Participation (‘SLAPP suits’) describe lawsuits that are brought for the real purpose of intimidating, burdening, punishing, harassing and ultimately silencing a person for speaking out against the plaintiff on matters of public interest.

‘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.

Favourable tax treatment of persons or activities, such as concessions, rebates and offsets, in order to support policy objectives. As this represents revenue forgone, it can be viewed in a similar way to government expenditure.[1]

[1] Stanley Surrey and Paul McDaniel, Tax Expenditures (Cambridge: Harvard University Press, 1985)

A fundamental principle of the adversarial trial (whether criminal or civil) is that witnesses offer their evidence by way of a narrative of fact(s) and refrain from offering their opinion or interpretation of those facts. Thus, witnesses are required to give evidence in relation to facts about which they have personal knowledge – so what they ‘saw, heard or otherwise perceived’ – not their opinion as to the significance of what they saw or heard or perceived.  This principle recognises that witnesses should not trespass on the role of the fact-finder (whether a jury or a judicial officer) whose role it is to absorb the information presented, draw inferences about the meaning or significance of evidence, and reach a conclusion about whether the party bearing the relevant onus of proof has succeeded in proving their case to the requisite standard (which in civil cases is on the ‘balance of probabilities, see s 140.) This exclusionary principle  is codified under the UEL in s 76  which prohibits witnesses from offering their opinion if the purpose of adducing that opinion is proving the truth of the facts asserted in that opinion. There are three main exceptions to the exclusionary rule contained in s 76, an exception for ‘lay opinion’ in s 78, a relatively new exception that allows members of an Aboriginal or Torres Strait Islander group to offer opinions about the existence or content of their own traditional laws and customs (s 78A), and s 79, the exception for witnesses possessing ‘specialised knowledge’.

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

Uniform Evidence Law (UEL) refers to the evidentiary and procedural regime governed primarily by an Evidence Act that is based on the Model Evidence Bill drafts produced by the Australian Law Reform Commission in response to their Evidence Inquiry 1980 - 1987, rather that the common law. Jurisdictions that have adopted the UEL are New South Wales, Victoria, the ACT, the Northern Territory, Tasmania, Norfolk Island and the Commonwealth. All of these jurisdictions have adopted an Evidence Act that mirrors in most substantive respects thethe Evidence Act 1995 (NSW/Cth). Some sections of the UEL were amended or added following the 2004 – 2005 Review by the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission. While not all the Acts are exactly uniform in each jurisdiction, the differences are relatively minor.

World Bank is an international development organisation and research institution owned by 189 member countries. Its primary role is to reduce poverty by providing financial assistance to the governments of lower-income countries to support economic development and improve living standards. It also offers policy advice in sectors such as health, education, nutrition, finance, justice, law, and the environment.[1]

[1] The World Bank, What We Do (Web Page, 2024) https://www.worldbank.org/en/what-we-do.