1. Administrative Law and Climate Change

Climate change generates a high volume of administrative law challenges in Australia and internationally.^[1] Climate-related litigation has become an important avenue for seeking to enforce governments’ climate change obligations. Indeed, more than 70 per cent of climate litigation internationally names the government as respondent or defendant in diverse cases brought by non-governmental organisations, individuals and companies.^[2] Within Australia and globally, litigation of climate change matters often takes the form of judicial reviews of administrative decisions to approve potentially climate-damaging projects such as coalmines.^[3] Indeed, the ‘first generation’ of climate litigation in Australia largely concerned administrative law challenges to government decision-making, particularly under planning and environment legislation.^[4]

A frequent argument in administrative law challenges is that government decision-makers have failed to adequately consider climate change in statutory decision-making processes.^[5] A common ‘climate conscious’ approach to administrative law advocacy has involved seeking to incorporate climate change within the scope of decision-making, particularly for projects with substantial climate impacts, by reference to broader statutory purposes.^[6] While climate litigation in administrative law has met with mixed success, its significance extends beyond the court room as an important mechanism for raising public and political awareness of climate change and generating pressure for broader regulatory change.^[7]

Climate change requires an urgent response and is widely understood to be legally disruptive.^[8] In response to disruptive situations, ‘legal frameworks must evolve or new authoritative legal frames must be developed’.^[9] However, the potential for climate change to generate pressure for evolution in legal doctrines and frameworks is in tension with the comparatively rigid and homeostatic nature of administrative law. This is particularly the case for Australian administrative law, which is characterised by, among other things, prescriptive judicial review legislation, a ‘preference to work within existing historic or doctrinal categories’ and Australia’s ‘especially rigid’ and constitutionally entrenched separation of judicial power.^[10] It is thus important to distinguish between legal disruption and legal development. Legal disruption occurs when problems cannot be managed using existing legal frameworks, thus necessitating a change in business-as-usual practices. In contrast to legal disruption, legal development is the normal evolution of the law. Disruption is therefore a useful frame, as it allows for categorising and defining disruptive processes that have more than a normal evolutionary impact on legal doctrines and frameworks.^[11]

The distinction between legal disruption and development raises two important questions that are explored in this chapter.

In examining the first question, this chapter primarily focuses on the Australian administrative law context, which, as noted above, is distinctive in terms of its strict and constitutionally entrenched separation of powers constraints. We examine climate litigation in judicial review generally under each of the three main categories of review: illegality, irrationality and procedural impropriety.^[12] We also explore the disruptive potential of climate change for both judicial review and merits review.

In addressing the second question, relevant examples from Australia and pertinent comparator jurisdictions illustrate possibilities for climate litigation in administrative law to generate pressure for change in regulatory frameworks. The chapter considers a perspective that climate litigation is not significantly disrupting well-established Australian administrative law doctrines. Even so, we consider whether it is true to say that it still plays an important role in catalysing regulatory evolution, particularly through the judicial review avenue, both in Australia and beyond.

1.1.  Climate-Related Legal Disruption in Administrative Law

As background for your evaluation of the extent to which climate change is disrupting existing doctrines and frameworks, it is useful to check your broad understanding of the Australian administrative law context. Administrative law provides important mechanisms for protecting the rights and interests of citizens affected by the decisions and actions of government agencies. Two of the key avenues of administrative law, judicial review and merits review, are the primary focus of this chapter. The availability of judicial review is entrenched in s 75(v) of the Australian Constitution.^[13] The High Court has reinforced the importance of the judicial review process in Australia, confirming that there is ‘an entrenched minimum provision of judicial review’ in Commonwealth matters.^[14] Legislative grounds of judicial review, which largely codify the pre-existing common law grounds of review, are found at both Commonwealth and state and territory levels.^[15]

Judicial review is the avenue of administrative law in which climate-related challenges are most frequently initiated.^[16] Within judicial review matters, climate change can be raised as a central or peripheral consideration.^[17] Decisions made under environmental and planning laws provide the most common context for raising climate change issues in a judicial review.^[18] As considerations of climate change, the land and the environment are almost wholly governed by legislation, statutory interpretation plays an important role in climate-related administrative law challenges.^[19] The courts’ discretion in statutory interpretation is largely exercised within the boundaries of upholding the separation of powers doctrine, as the courts are required to interpret statutes in line with the intention of Parliament.^[20] Within the judicial review process, disruption can occur when novel arguments or interpretations of statutes lead to climate change being read into existing doctrines, which may in turn promote climate conscious decision-making.^[21]

The rule of law and separation of powers both shape and constrain administrative law. Australian government ministers and officials are often the respondents in judicial review proceedings. This is an important aspect of the rule of law which holds that the Parliament, the executive and the judiciary are bound by rules and procedures to ensure that the law is knowable, and that it applies to all.^[22] There are also separation of powers constraints that define the powers that can be exercised by the judiciary in administrative law. Under Australia’s constitutionally entrenched separation of powers, two functions that are exclusively judicial in character are the power to conclusively interpret the legal meaning of a statute,^[23] and the power to determine the validity of executive action by reference to the authorising statute.^[24] Unlike in the United States, Australian courts do not defer to a government agency’s reasonable interpretation of an ambiguous legislative phrase, despite an agency’s experience working with the legislation it routinely administers.^[25]

The separation of judicial power underpins the important distinction between legality and merits in administrative law. In judicial review, courts must confine their analysis to the legality of a decision — that is, whether there has been a legal error. The legality/merits distinction is seen clearly in judicial review matters in which a court remits a decision back to the original decision-maker to be remade in accordance with law if the court determines that there has been a legal error. In contrast, merits review tribunals are able to take into account the facts and merits of a case.^[26] Merits review tribunals have broader review powers and, as a result, climate change may have a greater disruptive impact.^[27]

Against this backdrop, this chapter considers potential legal disruption arising from climate litigation in administrative law. First, in Section 2, we examine the extent to which climate litigation is causing legal disruption via evolution in administrative law doctrines through the avenues of judicial review and merits review. Second, in Section 3, we consider the ways in which climate litigation is generating pressure for evolution in regulatory frameworks responding to climate change.