1.1.   Criminalising Excessive Greenhouse Gas Emissions and Production of Fossil Fuels

1.1.1.   Criminalisation as Means of Reducing Greenhouse Gas Emissions

Given that the main cause of anthropogenic climate change is excessive emissions of greenhouse gases, much effort has been put into law reform proposals that aim at reducing such emissions, through incentives, disincentives, or a combination of both. Such proposals include emissions trading schemes, tax incentives for cleaner energy sources, government subsidies for reducing emissions, and licensing regimes whereby only industries that emit within specified limits may retain their licence.^[1] Another option is to make it a criminal offence to emit excessive amounts of greenhouse gas (GHG). This involves imposing the disincentive of criminal punishment, and would clearly be a more radical step, as criminalisation is usually regarded as properly only a ‘last resort’, after other forms of legal regulation have at least been considered.^[2]

1.1.2.   The Justification of Criminalisation

What would be an acceptable policy basis for criminalising excessive GHG emissions? ‘Traditional’ serious crimes such as assault, theft or threats to kill are usually made offences because they are actions which not only cause harm but also do so wrongfully or culpably. That is, it is not just because someone is harmed by such acts (eg they suffer physical pain, injury, loss of property, fear) that they are made criminal offences, it is also because these acts involve inflicting such harm in a morally objectionable or wrongful way (eg the acts are done with intent to harm, or with awareness of the probability of harm, or with dishonesty). The criminal law, as Simester and von Hirsch have argued, is ‘a morally loaded regulatory tool’,^[3] which means that making something a crime is not just a matter of prohibiting it but also of censuring (or morally blaming) those who commit such acts.^[4]

That may (or may not) be relatively straightforward for traditional crimes against the person or property offences, but how well would this approach to criminalisation apply to a ‘non-traditional’ crime such as excessive GHG emissions? Emitting greenhouse gases can now be regarded as a harmful activity, but what makes such conduct wrongful or morally culpable? Does it merit the morally loaded label of being a crime? Is that label merited because, now that it is clear to reasonable people that such emissions are harmful (to humans, other animals and other organisms), to engage in such action intentionally, knowingly, recklessly or grossly negligently is sufficiently morally blameworthy to warrant being censured as ‘a crime’?

Alternatively, criminalisation might be justified on the basis simply that it is socially desirable that emissions be reduced. Making excessive emissions a criminal offence, on this argument, is not so much a moral condemnation as just a way to ‘nudge’ people into complying with socially desirable behaviours, in much the same way that parking offences are a tool for getting people to use parking spaces fairly, and not a form of moral condemnation.

1.1.3.   Defining the New Crime

If the legislature decided to make excessive GHG emissions a crime, there is then the question of how this new offence should be defined. The legal definition of a criminal offence consists of the elements of the offence, these being the distinct factual matters that need to be proved for the offence in question to be proved. Criminal offence elements are traditionally divided into two basic kinds: physical elements (actus reus — the guilty act) and mental or fault elements (mens rea — the guilty mind).^[5] Physical elements are usually one of three kinds: conduct, circumstance and result. The most common fault elements are intention, knowledge, recklessness, gross negligence and dishonesty.

In brief, in the definition of a criminal act, a person performs some act or omits to do so (the conduct), does so in a particular situation (circumstance) and does so with some result being caused by that conduct. Not every criminal offence has to have a circumstance or result; some criminal offences have just a conduct element as the physical element. Each physical element might also have a fault element associated with it; for example, the conduct might have been intentional, with the circumstance being known, and the person being reckless as to the result.

With regard to the definition of a new offence of excessive GHG emissions, it would seem that the conduct element would need to be a matter of emitting a specified GHG beyond a specified amount, over a particular time period. It would also seem necessary to specify under what circumstances the excessive emission occurred; for example, are the emitters to be anyone or just certain industries? Most criminal offences apply to everyone: murder, theft and threats to kill do not specify that they only apply to some people. Should that approach apply to a new offence of excessive emissions? Or would it be appropriate to restrict the offence so that it applied only to corporations or individuals engaged in identified GHG-emitting industries?

With regard to the fault elements of the new offence, it would seem that there could be a range of possible mental states: there could be different offences for intentional, knowing, reckless and negligent breaches of the relevant limit. There is also the possibility that the new offence should have no fault elements. No-fault offences consist solely of the physical elements, with no need for the prosecution to prove any fault elements. If the accused is allowed by law to raise the defence of mistake of fact in relation to such an offence, then the offence is a strict liability offence; if the defence is not available, then the offence is an absolute liability offence. That defence is satisfied if the accused mistakenly but reasonably believed in the existence of facts which, had they existed, would have meant that the accused’s conduct would not have constituted an offence. Usually, the accused needs to provide or point to evidence that raises the issue (the evidential burden); the onus is then on the prosecution to disprove it.^[6]

Similar to the defence of honest and reasonable mistake is the defence of due diligence. This appears in various statutory provisions and allows, in essence, that it is a defence if the accused corporation took reasonable precautions and exercised due diligence to avoid committing an offence and the offence occurred because of causes beyond the accused’s control.^[7]

1.1.4.   The Effectiveness of Criminalisation

Creating criminal offences is often a cheap, easy and supposedly popular way for legislatures to be seen to be doing something.^[8] However, the question must always be asked whether criminalisation is effective in changing behaviour. This is especially important where what is being criminalised is not a clear moral wrong that most people would see as deserving condemnation and punishment (such as murder or rape) but is more a matter of something that is socially undesirable. The point of criminalising such conduct is to try to prevent the conduct from happening in the first place rather than punish those who have engaged in it. If the point of criminalisation is not so much to morally censure offenders but to deter people from offending, then there should normally be good evidence to support the claim that criminalisation would be effective as a deterrent.

One of the fears concerning the criminalisation of conduct where the main offenders are commercial corporations is that where fines constitute the penalty for breaking the law, that burden simply becomes part of the cost of doing business. The criminal penalty thus runs the risk of being simply the ‘government fee’ for engaging in the targeted conduct, rather than an effective deterrent.

1.2.   Ecocide

1.2.1.   Background to the Proposed Offence of Ecocide

The scale of the effects of climate change has raised the prospect of the destruction of whole ecosystems. This has renewed calls for the creation of a new offence, under international criminal law, of ‘ecocide’. International criminal law is criminal law that has been created at the international level, in contrast with domestic or national criminal law, which is where most criminal offences are found. International law as such usually concerns the rights and obligations of states; international criminal law, however, imposes criminal liability directly on individuals and provides for enforcement through international judicial institutions such as the International Criminal Court.^[9]

According to one of the champions of the idea of ecocide, the late Polly Higgins,

[e]cocide is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.^[10]

The term ‘ecocide’ has gained currency since the 1960s. Ecocide was originally conceived as a possible war crime.^[11] But the idea has since evolved such that large-scale environmental harm is something that can be done in peacetime and with sufficiently harmful effects that it should be part of both domestic and international criminal law.

Higgins and others have argued that ecocide should be included in the Rome Statute of the International Criminal Court, an international treaty adopted in 1998 that established the International Criminal Court.^[12] The jurisdiction of that court is limited to ‘the most serious crimes of concern to the international community as a whole’ (Article 5, para 1). Ecocide, it has been argued, should be included as a fifth international atrocity crime, after the existing four core international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.^[13]

1.2.2.   Proposed Definition of ‘Ecocide’

In June 2021, an Independent Expert Panel for the Legal Definition of Ecocide, convened by the Stop Ecocide Foundation, proposed a definition of ‘ecocide’ to be inserted into the Rome Statute:

“ecocide” means 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.

The Panel then proposed that the following definitions of key terms also be included in the Rome Statute:

1. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
2. “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;
3. “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;
4. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
5. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.

1.2.3.   Is Ecocide Still a Human-Centric Concept?

The offence of ecocide represents a major shift in thinking as to whose or what interests the criminal law can and should protect. The criminal law relating to fatal offences has traditionally been very human-centred. Fatal offences in Australia such as murder and manslaughter have been limited to the killing of human beings.^[14] The killing of animals, where it is a crime, has largely been left to offences under legislation intended to prevent cruelty to animals.^[15] Human-centrism is also the norm in international criminal law.^[16]

1.3.   Criminal Responsibility of Corporations for Climate Offences

1.3.1.   Corporate Criminal Responsibility

Much of the activity that contributes to climate change is performed by corporations rather than individual human beings. It may be argued, then, that if ecocide or emitting excessive amounts of greenhouse gases were to be criminalised, the offences should be drafted to reflect the fact that the most likely (and most important) culprits will be corporate entities.

A corporation is an artificial legal person, and, being a legal person, can acquire and dispose of property, enter into contracts, and sue or be sued. It can also be held criminally responsible. It is conceptually reasonably straightforward to attribute the actus reus or physical element of a criminal offence to a corporation: where the employees, servants or agents of the corporation engage in certain conduct while performing their contractual duties, that conduct can be attributed to the corporation.

It is more difficult to make sense of how mens rea or fault elements (things such as intention, knowledge, recklessness, negligence and dishonesty) are to be attributed to an abstract entity with no real mind of its own. One of the main ways that the common law attributes fault to a corporation is to identify some particular human being (or more than one) who embodies ‘the mind and will’ of the corporation.^[19] If a human being is the corporation’s guiding mind and will and, while they were acting in their role, they had the relevant intention or knowledge, then that intention or knowledge can be attributed to the corporation. Such people will usually be very senior officers of a corporation: directors, chief executives or senior managers. The Commonwealth Criminal Code provides for the attribution of fault where the board of directors or a ‘high managerial agent’ of the corporation ‘explicitly, tacitly or impliedly authorised or permitted the commission of the offence’.^[20]

1.3.2.   Corporate Culture

Another approach to corporate criminal liability is not to look at the level of individuals’ conduct but to look instead at the corporation’s ‘culture’. The Commonwealth Criminal Code defines this as ‘an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes [sic] place’.^[22] A corporate culture is thus something distinct from and not reducible to the minds of individuals.

The Code provides that criminal fault can be proved where there was a corporate culture ‘that directed, encouraged, tolerated or led to non-compliance with the relevant provision’.^[23] This can be especially relevant to offences involving omissions or negligence.

1.3.3.   Would the ‘Carbon Majors’ be Complicit in Criminally Excessive Emissions?

There is also the question of the responsibility of corporations which extract and supply the fossil fuels whose subsequent consumption creates excessive GHG emissions. Some have argued that the major fossil fuel production corporations (the ‘carbon majors’) can be seen as complicit where they knew such emissions would follow when they supplied the fuels, in much the same way that a person who gives another person a gun, knowing that they will use it to murder someone else, can be regarded as an accessory to the subsequent murder.^[24]

Under the Commonwealth Criminal Code, criminal responsibility is extended, via the concept of complicity, to those who thus enable the principal offender to commit the offence:

A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.^[25]