4. Conclusion
This chapter has invited you to reflect on why climate change is not significantly disrupting well-established Australian administrative law doctrines, particularly through the avenue of judicial review. It suggests that these trends are unsurprising in light of the legality/merits divide against the backdrop of Australia’s constitutionally entrenched separation of powers. There is, however, greater evidence of legal disruption in merits review cases such as Gloucester. Moreover, the significance of climate litigation extends beyond the courtroom as an important mechanism for catalysing regulatory and policy change, both in Australia and relevant comparator jurisdictions such as the US and the UK. Although the disruptive impacts of climate change on administrative law doctrine are relatively limited to date, this chapter considers that climate litigation is playing an important role in creating pressure for regulatory evolution in Australia and internationally. These challenges and opportunities are important to consider in weighing the desirability of pursuing a climate-related action in administrative law compared to other legal pathways.
Examination by a court of the legality (rather than the substantive merits) of an administrative decision.
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.
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).
