Drought, deaths and prayers. Won’t someone think of the Australian farmer.

 

This is an edited version of a presentation I gave to the Journal of Environmental Law ‘Environmental Law and Populism’ Workshop held at The University of Oxford in November 2019.

Introduction

My geographical focus today will be the Murray Darling Basin, a geography that encapsulates five sub national jurisdictions and is co-managed under referred legislative powers by the Commonwealth government and state and territory governments under the Water Act 2007 (Cth) (‘Water Act’) and the Murray Darling Basin Plan.

I am going to talk to you about the rise of a populist discourse in Australia centred on the interests of the farmer. It is a discourse that has become especially evident over the past 12 months following fish deaths in the Darling River in New South Wales (‘NSW’) and the political declaration of drought in the eastern Australian states. It is grounded in rural unrest about the allocation of water rights, and has been deployed to resist legislative or political action to address the climate catastrophe enveloping Australia. And so for these reasons, I view the ‘farmer interests’ discourse as an environmental discourse.

What I hope to highlight is that the problems that fomented the discourse (especially climate change and water mismanagement) are not those problems being addressed by the laws that are being supported by the discourse. At least for the time-being.

The discourse is present in news media, notably the Australian tabloid press and the mostly Sydney-based right-wing radio stations, in posturing by politicians within and outside of parliaments, and it has more recently been mocked and satirised on social media through the use of memes.

The environmental discourse has been used to achieve a political response this year, especially in the form of drought relief for farmers – a controversial policy because many of the farmers receiving assistance to keep them farming face a reality of prolonged dry periods and some within the industry[1] are arguing that the time is right for some farmers to transition off barren lands.

The discourse has been used to support legal changes in 2019 – including in NSW: laws that diminish native vegetation controls, that alter the law of nuisance for agricultural production and that further criminalise on-farm protests by animal rights activists, and federally in the attempts to regulate milk prices by the fringe and conservative populist party: Pauline Hanson’s One Nation Party.

What is an environmental discourse and how is it relevant to populism?

My understanding of what environmental discourses are is informed by the 1990s scholarship of Hajer[2] and Dryzek.[3] Environmental discourses are a ‘shared way of apprehending the world’[4] or an ‘ensemble of ideas, concepts, and categorizations’ which are given meaning through their reproduction and repetition and the political ecology within which they are struck.[5] They bring together adherents, into discourse coalitions, in order for them to interpret information and stories about the environment.[6] Although the discourses and their coalitions of supporters shed or disguise complexity[7] and are oftentimes lacking in coherence.[8]

Discourses comprise ‘vocabularies of motive’,[9] language, metaphors, analogies, clichés, catch phrases, and concepts and structures of bias. They are condensed into often simple, succinct, and agreeable storylines within which actors are able to attach their disparate views, values, and interests.[10] They become ‘world views’, emblematic and ritualised and infiltrate common language in a way that shape and highlight particular knowledge.[11]

Elsewhere Chris Hilson has written of the presence and role of narrative in climate litigation in engendering a populist frame and movement,[12] and he has contrasted the presence of narrative, storylines and discourses within environmental jurisprudence and law making, and encouraged viewing these prisms of language and positionality as drivers for legal action and involvement.

What’s more, as Hilson writes in preparation for this workshop, ‘populism appeals to emotions over rationality’ and this emotion is often wrapped up in narratives of experiences and feelings.[13] There is within populist movements, says Hilson, an appeal to the ‘will of the “real people’ and as Fisher notes a ‘telling of simple stories’:[14] especially of ‘the people against the elite, and [of] the “real” people’: like Australia’s farmers: sometimes referred to as the ‘real Australians’, including by Australian politicians.[15] Preston similarly writes of sloganeering and propagandising driving policy and politics.[16] I hope to colour these perspectives today.

The fish kills

As I have noted, I am interested in the rise and power over law and policy of the ‘farmer interests’ environmental discourse. In the context of the recent Australian popular interest in the wellbeing of the bush, and the re-energisation of populist political parties I trace the farmer interest discourse to the widespread community shock about the fish kills – an environmental catastrophe – in the Darling River around Menindee from 11 months ago.

Of course, there is a strong poetic narrative, dating to colonial times, of Australian ‘bushmen’ and farmers being central to the Australian identity.[17] And while that narrative certainly helped consolidate the discourse, other events have shaped the discourse for present social media times.

A video in the aftermath of the first fish kill in December 2018 (featuring a farmer holding a dead Murray cod who had previously brought a High Court challenge over the diminution of his business’s water rights)[18] went viral[19] triggering much political anxiety. Both the federal government and, unconventionally, the federal opposition initiated inquiries into the cause of the deaths to both qualm and exploit the community shock and anger.[20]

Scientists identified mismanagement of water allocations, including over-allocation to high water users, and low environmental flows arising from the NSW government policies of water release as the primary causes.[21] An earlier corruption scandal, leading to a Royal Commission by the state of South Australia, was the result of water users in NSW taking greater volumes of water than they were allocated or that they were entitled having earlier benefited financially from claiming water use efficiency dividends. All of this occurred according to the terms of the federalist Murray Darling Basin Plan under the watch of the NSW government, meaning that environmental and downstream flows were reduced.[22]

And then there was the contribution of a changed climate, exceptionally wet then dry and hot weather conditions; with the government’s investigators explaining that ‘climate change amplified these conditions and will likely result in more severe droughts in the future’ and with it more fish kills.[23]

The NSW government saw the effect of the community anger over its role in water mismanagement in the electorates that contain the Darling River and adjacent rural centres in the March 2019 state election, with populist parties, most notably the Shooters, Fishers and Farmers Party with its policy platform of reform to water law and policy,[24] and independents, recording large swings to them as voters deserted the rural conservative National Party.

The drought

The federal government, despite avoiding the same electoral damage as its NSW conservative counterparts and being returned to power thanks it claims to the votes of the ‘quiet Australians’ has, however, experienced community anger as drought conditions have worsened in NSW in particular, and it has refused to revisit its market-based water policy.

Communities further downstream in the Murray Darling Basin have been agitating for some of the dedicated environmental flows under the water plan and Water Act to be reallocated to agricultural purposes, and for a reallocation of water from high use, high profit, principally export cropping – think cotton and almonds for instance, to a larger number of farmer interests, particularly those who are a part of the local food supply system, and to dairy farmers.[25]

The federal minister, David Littleproud, whose extended family was implicated in water allocation manipulation,[26] has borne the brunt of farmer and rural constituency wrath[27] for the government’s inaction.

The national discourse

The broader and generally urban community, supported by commercial media, especially talk back radio and breakfast television, and supermarket chains, has organised a charitable response. Australians have been urged to buy bales of hay for farmers (that was on my opening slide), to donate dollars at the supermarket till, to adopt a farmer. Governments are claiming to be thrifty with spending and focussed with government policy such that immediate farmer interests are prioritised – in terms of social welfare and drought policy.[28]

And such commentary has been mimicked on social media.[29] The Australian farmer has become the cause of populism to such an extent that it is now being mocked through memes on social media.

Among other figures of mockery has been the Prime Minister whose government has resisted calls for policy or legal responses to address the causes of the experience of drought – climate change and water allocations. Turning to prayer and government financial assistance; assistance characterised as too little by the populist class.[30] Yet to challenge the discourse – especially to raise climate change as part of the problem is to be dismissed as taking advantage of the predicament faced by Australian farmers; and to be identified as no longer one of the government’s preferred obedient quiet Australians.

While laws to address the core challenges faced by those on the farmlands have not (yet, perhaps) eventuated from the farmer interest discourse, other laws and legal manoeuvres have arisen from the discourse, perhaps opportunistically or by design. I want to note three legal changes where the discourse was deployed in the speeches and commentary supporting the proposed legislation.

The Native Vegetation Act amnesty

First, in the decision of the NSW government to direct its Department of Planning, Industry and Environment which regulates native vegetation protection to cease its investigation, penalisation and prosecution of suspected unlawful land clearing undertaking under laws that the NSW parliament repealed in 2017 – the Native Vegetation Act 2003 – and which it replaced with a more permissive and self-regulated system of native vegetation management on private lands. The Department is now required to work with landholders to achieve compliance with Codes.

The Minister responsible for agriculture,[31] not the Minister responsible for the environment, explained his government’s decision to a NSW farmers conference:

“I don’t want to see farmers who undertook activity, which if they did it today it would be completely legal, prosecuted for activity that they did 10 years ago that might’ve been illegal at the time”.

Yet it has since been reported that many of the investigated parties were not farmers as imagined or recalled – dust covered and Akubra hat wearing; rather large industrial cotton agribusinesses.[32] The distinction, however, was not drawn out in the populist demands for the change led by the Sydney radio station 2GB.[33]

Radio personality Ben Fordham campaigned for this legal-policy change under a promise of fighting for Aussie farmers facing “bankruptcy”[34] from action by government ‘bullies’ and from “being forced off their land because of the aggressive tactics” of the Department.[35] Farmers, already doing it hard, weren’t getting a fair go. Lost in the hyperbole of concern and victim making was an acknowledgement that a native vegetation officer was shot dead five years ago doing his job enforcing these laws.[36]

The Right to Farm Bill 2019 (NSW)

Which is awaiting royal assent having passed both houses of the NSW parliament, is the second and most notable legal change supported by the farmer interests discourse this year.

The Act achieves two primary but disconnected goals. First, it creates higher penalties up to three years for trespass onto agricultural land (compared to other private lands) and creates new offences of organising – directing, inducing counselling – such trespass activities. These are legal changes directed towards animal rights protesters by the least quiet and most unAustralian of Australians at the moment – vegan extremists.

These laws add to other laws passed by the Commonwealth parliament this year that create crimes of using a carrier service to organise trespass or property damage on agricultural land.[37]

Second, it creates a defence to claims of private nuisance where what would otherwise be an ‘unreasonable interference’ has occurred on commercial agricultural land (or farm affiliated land – including land used for rodeos) consistent with other laws, primarily planning laws, for at least one year, and has not been undertaken negligently.[38] This is the second version of the US Right to Farm statute, following Tasmania in the 1990s.[39]

Adam Marshall, Minister for Agriculture and Western NSW in introducing the bill explained how tough our farmers are it doing in the face of drought,[40] and proclaimed that the bill:[41]

enshrine[d] in law a farmer’s right to farm their land, to grow the food and fibre to feed and clothe [us and would tackle] on-farm trespass … and the questioning by vegan vigilantes and other ideologically motivated groups of a farmer’s right to undertake lawful activities. 

The Protecting Australian Dairy Bill 2019

While defeated in the Senate by 30-31 votes this month, and which sought to include a base minimum price for milk for each dairy season, is worth noting because it showed the discourse on display and used against the government who continues to be a key figure in the discourse coalition[42] in an ongoing battle over milk pricing policy and the power imbalance between Australia’s supermarket duopoly and dairy farmers.

In introducing the bill and also in the media,[43] Pauline Hanson, populist Queensland Senator, pleaded for her proposed law to be passed for the people of the nation – embodied in the Australian dairy farmer:[44]

We have to stand up for all the dairy farmers. … I call on everyone in this parliament: represent the people of this nation—the dairy farmers, who are on their knees and going under. All they want is a fair price for their milk, and the public will pay for it.

The climate change activist farmers

I will finishing by mentioning that while this discourse has not been used to address the kinds of existential problems facing Australian farmers through law and policy, it has given a voice and power and space for discussion by farmers. And so it might present another avenue, perhaps more conciliatory, less disruptive or threatening to government to achieve legal and policy change of the sort required merely for Australia to fulfill its international targets and meet other nations in the challenge to avert a climate crisis.

The Guardian newspaper has a journalist producing regular stories about climate change from the bush framed through the experience of the farmer,[45] rural and agricultural policy think-tanks have raised concerns about government inaction on climate change[46] and the new grouping of Farmers for Climate Action, led in part by one of Australia’s most effective young climate activists and thinkers, Anna Rose, is reshaping the image of the modern and the future farmer and articulating their understanding of the climate policy needs required to keep them on the land and Australia the land of sweeping plains and bushwomen.

[1] The National Farmers Federation is urging exit packages: Ean Higgins, ‘Call for “exit packages” for drought-hit farmers’, 23 October 2019. The Australian. Editorial, ‘Structural solution to the farm “crisis”’, 24 October 2019. Australian Financial Review.

[2] Marteen Hajer, The Politics of Environmental Discourse: Ecological Modernization and the Policy Process (Oxford, 1995).

[3] John Dryzek, The Politics of the Earth: Environmental Discourses (Oxford, 1997).

[4] Dryzek, 8.

[5] Hajer, above n 2, 44.

[6] Dryzek, above n 3, 8.

[7] Hajer, above n 2, 45.

[8] Hajer, above n 2, 44.

[9] Ray Kemp, ‘Why not in my backyard? A radical interpretation of public opposition to the deep disposal of radioactive waste in the United Kingdom’ (1990) 22 Environment and Planning A 1239, 1244.

[10] Marteen Hajer, ‘Discourse coalitions and the institutionalization of practice: the case of acid rain in Britain’ in Frank Fischer and John Forester (eds), The Argumentative Turn in Policy Analysis and Planning. (Duke, 1993) 43.

[11] Hajer, above n 2.

[12] Chris Hilson, ‘Law, courts and populism: climate change litigation and the narrative turn’ Chapter 5 in  Susan M. Sterett and Lee D. Walker (eds), Research Handbook on Law and Courts (Edward Elgar, 2019).

[13] Chris Hilson, ‘Climate populism, courts and science’ (2019) 31 Journal and Environmental Law 395.

[14] Elizabeth Fisher, ‘Unearthing the relationship between environmental law and populism’ (2019) 31 Journal and Environmental Law 383.

[15] Christopher Mayes, ‘Cultivating a nation: Why the mythos of the Australian farmer is problematic‘ The Conversation, Littleproud meets with parched farmers hoping for rainCountryman, 28 March 2019. 

[16] Brian Preston, ‘The end of enlightened environmental law’ (2019) 31 Journal and Environmental Law 399.

[17] See the 1890s work of Bajo Patterson, for example. Mayes, above n 15.

[18] Arnold v Minister Administering the Water Management Act 2000 240 CLR 242.

[19] Paige Cockburn and Kevin Nguyen, ‘Mass fish deaths at Menindee sparks viral video as Minister receives threats’ ABC News, 

[20] See the letters to the editor, Sydney Morning Herald, 11 January 2019; Cameron Gooley, ‘Menindee rotting fish clean-up to begin next week‘ ABC News, 

[21] NSW Government, Department of Primary Industries, Fish Death Interim Investigation Report: Lower Darling River Fish Death Event, Menindee 2018/19 (January 2019); Australian Academy of Science Expert Panel, Investigation of the causes of mass fish kills in the Menindee Region NSW over the summer of 2018–2019 (2019)

[22] Anne Davies, ‘Damning Murray-Darling report says NSW ‘well behind’ on water-sharing plansThe Guardian, 15 January 2019; Bret Walker SC, Murray-Darling Basin Royal Commission Report (January 2019).

[23] https://theconversation.com/we-wrote-the-report-for-the-minister-on-fish-deaths-in-the-lower-darling-heres-why-it-could-happen-again-115063

[24] Shooters Fishers and Farmers Party (NSW), SFF strategy on Murray Darling Basin water management. The party’s principle environmental policy position is the rejection of protected areas for environmental preservation.

[25] Peter Hannam, ‘On their knees’: Drought and nuts blamed for ‘decimating’ food sector’ Sydney Morning Herald, 25 October 2019.

[26] Kerry Brewster, ‘One of Queensland’s largest irrigators expected to be charged with fraud The Guardian, 8 April 2018.

[27] Warwick Long, ‘Effigy of Federal Water Minister David Littleproud floats toward SA in Murray-Darling Basin Plan protestABC News, 20 September 2019.

 

[28] Peter Lewis, ‘There is growing empathy for those on Newstart. The dynamics of welfare politics are changingThe Guardian, 13 August 2019.

[29] Viki Gerova, ‘Thousands Sign Petition To Scrap Sydney’s NYE Fireworks And Donate Funds To Fire Relief10 Daily, 17 November 2019.

[30] Michelle Grattan, ‘View from The Hill: Alan Jones v Scott Morrison on the question of how you feed a cowThe Conversation, 15

[31] John Ellicott, ‘Marshall takes stick to old veg laws, reviews all old ordersThe Land, 1 August 2019.

[32] Anne Davies, ‘NSW farmers granted amnesty for illegal land-clearingThe Guardian, 1 August 2019.

[33] Davies, above n 32.

[34] 2GB, ‘Ben Fordham’s fight to save Aussie farmers from bankruptcy‘ 2GB, 21 May 2019.

[35] Anne Davies, ‘Farmers prosecuted for land clearing allege former NSW minister gave them green lightThe Guardian, 17 October 2019.

[36] Kathleen Ferguson and Jennifer Ingall, ‘Native Vegetation Act amnesty angers partner of slain environment officer Glen TurnerABC News, 2 August 2019.

[37] The Criminal Code Amendment (Agricultural Protection) Act 2019 (Cth) creates offences of:

  • Using a carriage service for inciting property damage, or theft, on agricultural land; and
  • Using a carriage service for inciting trespass on agricultural land

[38] The ‘defence’ was originally drafted as:

No action lies in respect of nuisance by reason only of the carrying out of a commercial agricultural activity if:
(a) the activity is carried out lawfully, and
(b) the activity is not carried out negligently, and
(c) the activity is carried out on agricultural land, and
(d) the land on which the activity is carried out has been used for the purposes of agriculture for a period of at least 12 months.

It was amended at the initiation of the Shooters Fishers Farmers Party:

No action lies in respect of nuisance by reason only of the carrying out of any of the following activities if the activity is carried out lawfully and not negligently and that type of activity has been carried out on the land for at least 12 months:
(a) a commercial agricultural activity,
(b) an activity carried out for the purposes of any of the following:
(i) any business or undertaking in which cattle, poultry, pigs, goats, horses, sheep or other livestock are kept or bred for commercial purposes (for example, a dairy, saleyard or feedlot),
(ii) a business or undertaking for the commercial production of products derived from the slaughter of animals (including poultry) or the processing of skins or wool of animals, including abattoirs, knackeries, tanneries, woolscours and rendering plants,
(iii) a business or undertaking for forestry (including timber mills) or aquaculture,
(iv) a show or competition involving livestock (including a rodeo).

[39] Primary Industry Activities Protection Act 1995 (Tas).

[40] Adam Marshall, NSW Legislative Assembly Hansard, 17 September 2019 (Second Reading Speech). The Minister noted:

Our farmers are doing it tough, as every member of this House knows, and the amendments to the Inclosed Lands Protection Act 1901 and the new Right to Farm Bill 2019 are part of a broader suite of initiatives by the Government. We all know how hard the drought is for all communities and farmers in rural, remote and regional New South Wales. That is why in July 2019 the Government announced an additional $1.1 billion in drought support. The acts of trespassers can undo the great work that our farmers do every day to protect and maintain the world-class biosecurity regime we have in New South Wales.

[41] Marshall, above n 40.

[42] Susan McDonald, Senate Hansard, 11 November 2019 (Second Reading Debate). National Party senator for Queensland,  McDonald claimed:

There is no more important industry in Australia than agriculture in growing the food and fibre that feeds the nation and feeds a good part of the world. Dairy is indeed an important part of that industry. They are doing it as tough as anybody at this moment—as tough as pork producers, as tough as feed lotters and as tough as anybody who is having to pay a dollar a kilo for feed, who are struggling to get water in the face of a deep drought. But these are not things that can or should be solved by this legislation.

[43] The New Daily, ‘Pauline Hanson weeps at plight of dairy farmersThe New Daily, 18 October 2019; Matt Coughlan and Daniel McCulloch, ‘Pauline Hanson can’t milk support for dairy billThe New Daily, 11 November 2019.

[44] Pauline Hanson, Senate Hansard, 11 November 2019 (Second Reading Speech).

[45] Gabrielle Chan, ‘For farmers climate change is the headline to our lives, but McCormack’s Nationals avert their gazeThe Guardian, 11 November 2019.

[46] Australian Farm Institute and Farmers for Climate Action, Change in the air: Defining the need for an Australian agricultural climate change strategy
(June 2019).

Endings and Fairness: The Clean Energy Act 2011 (Cth) and Queensland Nickel

Originally published at Opinions on High, the Melbourne Law School High Court blog.

Australia’s first national laws to put a price on carbon were effective to their end; reportedly leading to reductions in Australia’s combined greenhouse gas emissions. In their absence it has been reported that increases in emissions have resumed. While our new Prime Minister grapples with how to rein in these emissions, the High Court last year confirmed that the carbon price laws were lawful, and through the prism of the Constitution fair, to their end. The history books will show, however, that politicians failed to make the case for a carbon price law, but they devised and crafted a successful, if complex though geographically unfair, legal policy. Over the past few days the protagonist in the High Court case, Queensland Nickel, with the business faltering, has brought claims of fairness into the political discourse around this business’ carbon intensive operations.

The Constitution and no interstate discrimination

In Queensland Nickel Pty Ltd v Commonwealth [2015] HCA 12, notable also as Nettle J’s first judgment, the High Court dismissed a claim by Queensland Nickel that regulations supporting the principal Act, the Clean Energy Act 2011 (Cth), were unconstitutional based on their geographic effect. Arguments relying on s 99 of the Constitution, the non-discrimination provision, that the regulations inadvertently and indirectly discriminated against the Queensland-based refinery business wholly owned by Clive Palmer MP, the federal parliamentary member for Fairfax, were rejected.

The High Court concluded that the additional financial liability imposed on Queensland Nickel relative to other refineries in Western Australia that triggered the case was not a cause of a difference or discrimination on the grounds of physical or jurisdictional geography but a result of past decisions made by Queensland Nickel on purely financial grounds. The effect of the laws as experienced by Queensland Nickel relative to its Western Australian competitors may have had an increased financial burden on Mr Palmer’s company, which has not been attributed to the company’s financial woes, but that burden was not attributable to the law; rather business decisions made by the company in its infancy.

In the High Court case, Nettle J adopted the plurality view in the Fortescue Metals case, and found that the particular parts of the carbon price regulation that set out liabilities for nickel refineries ‘did not discriminate between States. In terms, it applied equally to eligible persons carrying on the production of nickel regardless of the State of production’ (at [56]). Although Nettle J acknowledged a difference in practical effect of the laws for Queensland Nickel, he considered that ‘in this case it does not appear that any of the differences between the plaintiff’s and the Western Australian nickel producers’ inputs, production processes or outputs were due to differences between Queensland and Western Australia in natural, business or other circumstances’ (at [58]).

Instead, Nettle J focussed on past decisions about mining processes as giving rise to the different effect of the laws. The mining process adopted by Queensland Nickel was found to have been the reason for the greater financial burden under the laws. Although Nettle J conceded that the mining process decision ‘was informed by geographic considerations’ (at [61]), the decisions were ultimately based on delivering to each firm the greatest possible financial windfall at the time the decisions were made in the historical technological settings.

This conclusion, which eschews considerations of the geography of place, effect, and time in preference for considerations of financial autonomy offers an appropriate and consistent ending for the Clean Energy Act 2011, because financial interests trumped geographic interests and fairness throughout its invention, implementation and repeal.

The carbon price laws and unfairness

In the lead up to the last federal election Clive Palmer claimed to have advice that the carbon price legislation was unconstitutional, drawing in the then federal opposition leader, Tony Abbott, and then Queensland Liberal National leader Campbell Newman in support of his case. One of the frames developed to oppose the carbon laws was fairness and justice. This particularly included fairness to Australia internationally and fairness for businesses in Australia, especially those smaller businesses facing higher electricity costs, and fairness to families facing higher electricity costs (not all caused by the carbon price laws). At that time, in 2013, however, opposition to the laws was not widespread or strong, with most people ambivalent towards them (as distinct from the deeply felt opposition to the then Prime Minister’s popularly understood broken promise not to introduce a carbon tax). Moreover, opposition to the carbon price laws diminished further in the year following the election of the Tony Abbott led government and in the lead up to their repeal.

There could have been a more sophisticated level of opposition to the laws, not triggered by the financial costs created by the laws (as that was their very deliberate intention), but based on geographic fairness. By geography I mean the distribution between places and jurisdictions and across space, time and scale of social, environmental, political and economic advantages and burdens, whether deliberate or consequential.

The remainder of this short piece tries to record those geographic bases for opposition to Australia’s recent political and legal responses to the issue of carbon emission reductions, which, unlike Mr Palmer’s claims, did not rise to prominence in law or the media. With Mr Palmer’s recent attempt to deploy a discourse of fairness in the context of the financial predicament of Queensland Nickel it is a timely to record these fairness bases.

Geographer Lesley Head has demonstrated that those Australians with lowest incomes experienced the greatest burden of reducing emissions from electricity use under the carbon price legislation. In contrast, the rich simply paid more to run their air conditioners and wine fridges. Indeed, any consideration of the distribution of effect of climate policies and laws across the spectrum of advantage in Australia is typically not prioritised. The recent history of Australian climate policy has examples of ignorance of their geographic fairness, and the discourse of ‘climate justice’ is rarely highlighted in this country while claims about financial business injustices are.

Moreover, the way the carbon price laws were comprised and then administered demonstrated a lack of concern for geographic fairness in place of economic purity and attention to dominant financial interests. For instance, the laws were ultimately not accompanied by regulations that mandated improvements on those coal-fired generators that disproportionately affect carbon exposed communities. Rather the laws did include exemptions to protect trade-exposed business. Moreover, the promise to close down the least efficient power generators in order to achieve significant additional reductions, and indirectly improve the environmental health of the host communities, came to nothing. The long-advocated greenhouse trigger for environmental assessments in the federal Environment Protection and Biodiversity Act 1999 (Cth), which would have protected more communities from future pollution, was dismissed again — this time as being incompatible with the market approach of the carbon price regime.

The repeal of the laws, however, has entrenched localised pollution (an exception is in Anglesea where the generator supplying the local aluminum smelter has been decommissioned on financial grounds). Large coal fired generators are now not required to reduce their emissions at all. The Australian domestic approach to emissions reductions now also reflects its international agenda of using offsets in place of reductions: a policy approach I have previously questioned as being geographically unfair.

While the High Court’s approach to the issue of the geographic effect of the carbon laws was cursory, that should not leave us to think that the recent and current approaches to carbon emissions reduction laws and policies passed the geographic ‘fairness’ test. Rather, these laws created and have embedded geographic discrimination of a type that s 99 of the Constitution is unable to redress.

Queensland Nickel’s financial struggles and retorts to fairness

As for Mr Palmer’s claim that the Queensland government should have guaranteed Queensland Nickel’s immediate financial security on the basis of fairness, that’s far more difficult to unpack. As Antony Green alludes to it seems that Mr Palmer was attempting to use ‘fairness’ as a slogan in the same way the present government has for its current reform agenda: an agenda focused on matters economic and overlooking the geographic unfairness of climate change law and policy. Lost also in the framing of the debate by Mr Palmer, but identified by the Queensland opposition, is the fairness of the State potentially being called upon to rehabilitate the refinery site lest the local community continue to bear environmental harms without any economic advantages from the operation of the refinery.

Clearing the Air: Australia, environmental justice and ‘toxic’ pollution

Here is a speech I gave at a public seminar hosted by Environmental Justice Australia on 8 July 2014 on the topic of air pollution and environmental injustice.

—–

The focus of this evening’s seminar is the recently published ‘Clearing the Air’ report into air pollution by our hosts, Environmental Justice Australia.

However, I want to start my presentation by taking you back a couple of years to the report that saw this organisation shift its attention, and ultimately its name, towards concerns of environmental justice.

In that report, the final report of the Environmental Justice Project (pdf), the Environment Defenders Office (‘EDO’) – as it then was – explained an absence within Australia of a narrative – or movement – for environmental justice and a policy gap in the promotion of environmental justice principles throughout the country.

For those of you unfamiliar with the concept of environmental justice it is a term with an evolving definition: it is defined differently depending on context and perspective. What links the definitions, however, are two concerns about fairness.

First, fairness in terms of where environmental harms are situated. In this respect the concept is understood as having distributional or geographic aspects.

Second, a concern about fairness in decisions about projects or policies that are perceived as having environmentally harmful effects – wherever those effects may be located. So in this respect the concept is also understood as having procedural or political aspects.

When understood at its most basic level within these two terms, I am sure you will agree that for many decades these concerns about fairness have been evident in Australia. I am confident that each of you could recall a case, a project, a decision, a pollution event that either gave rise to concerns about distributional unfairness or procedural or political unfairness.

Some readers of the EDO’s Environmental Justice Project Final Report, however, suggested that the concept of environmental justice is novel to Australia: that the EDO’s work was the first time that environmental justice had been brought into view in Australia. That is not accurate. A review of the footnotes of the EDO report makes plain that there has existed and been recorded for a period of time in Australia events and literature on environmental justice.

In fact, the experience of air pollution in Australia allows you to trace environmental justice concerns for decades. The graphic locating geography hot spots of air pollution in the Environmental Justice Australia report, (pdf, see page 16), offers you an opportunity to reflect on how long those spots have been presenting distributional, unfair health problems to those communities. They have not just appeared over the past two years.

The principal messages in my presentation today, drawn from my research and also what I learned in putting together and recently teaching the subject Toxics, Waste and Contamination Law is that environmental justice concerns have played a part in our pollution laws over the past 40 years.

It is only now are we as a community of scholars and of individuals beginning to frame our laws as being directed to achieve environmental justice. The report we are discussing tonight is part of this movement; part of the trend.

I want to offer two potential reasons for this interest in environmental justice: not simply the concepts but also the words, the discourse, the phrase, the term.

First, we are seeing demands that human health impacts be a priority when governments respond to incidents and reports of degraded environments and, associated with that, a second potential reason (and this is somewhat preliminary and speculative) is the displacement, in the view of non-government entities, of sustainability as the predominant policy goal of environmental laws.

To reach these conclusions, however, it has been necessarily for me to take what is becoming an unconventional route to understanding what environmental justice means.

The conventional route is to see environmental justice as having emerged from the environmental racism movement in the USA, exemplified by the incident in the late 1970s and early 1980s in Warren County where abandoned chemical wastes were relocated in the face of African America led opposition to a tip created in the least wealthy and least white county in North Carolina.

A less specific, less limiting and arguably more global and less instantaneous, alternative starting point for the emergence of environmental justice is in the anti-toxics movement.

Political scientist John Dryzek traces the discourse of environmental justice to this movement and social scientists Buell and Szasz also separately reached this view.

For them ‘toxic’ was and is a word of political power and an expression and encapsulation of human health concerns. Szasz writes of toxic as ‘icon’, a rallying point. Buell writes of the ‘global rhetoric’ of toxicity predating the 1970s. Dryzek notes the difficulty in disproving toxicity: hence it has symbolic and political power.

Toxic was proxy – for justice, for fairness, for protection of human health. It remains so. You are also likely seeing it appear more in our environmental language. Alkon et al in recent scholarship in the journal Local Environment argue that we should not always be looking for environmental justice as a term to understand its meaning and force, but to be mindful of proxy terms.

So if you are looking for a narrative of environmental justice in Australia a search for concerns and complaints about toxicity can be a proxy. You are all likely aware of the long standing National Toxics Network. Some of you might be aware of the book Local Heroes edited by Kathleen McPhillips which recounts incidents of toxic pollution and threats around Australia, including at the periphery of Coode Island here in inner Melbourne. These, as well as some of those locations in the pollution hot spots map, are Australia’s early stories of environmental justice. They date for decades.

What is central in the toxics terminology is the human – toxic effects on humans. So having sketched out a path for you to see environmental justice as having resonated through our experience of pollution laws, I now want to turn to emphasise the centrality of human health to those concerns. To show the parallel experience of health and toxicity in our modern environmental laws.

If you look at the origins of the Environment Protection Act 1970 (Vic), you will see a focus on human health concerns within the broader community.

Former federal MP Lindsay Tanner, in his co-authored 1978 book, The Politics of Pollution, pinpoints the proposal for the Carrum sewerage treatment plan with an effluent pipeline into Port Phillip as a trigger for the public to demand a comprehensive pollution control regulatory system in Victoria: a system that would protect the “quality of life” of the public. Tanner’s book also records the election promise of the Bolte government to create the Environment Protection Authority in May 1970 in response to community demands for government intervention to control pollution for their benefit.

While these laws have changed over the past 40 years, particularly in the post-Rio legal sphere, and while governments have repositioned the laws to achieve environmental protection and meet principles of sustainability, recent reports analyzing the conduct of the Environment Protection Authority reiterate that in the community’s view these are laws ought to protect them, their well-being and their health, and that their health has been missing from the agency’s regulatory enforcement activities.

My research has also led me to suspect that if the community ever signed up to the concept of environmental sustainability it has since signed off.

With Annette Jones I reviewed submissions to human rights dialogues, which clearly (and perhaps naturally because of the subject matter) prioritized human well-being, particularly of the most vulnerable in the community, over environmental sustainability and protection concerns. This was so even when governments invited submitters to consider explicitly a right of ‘environmental sustainability’, as the Tasmanian government had proposed. There the Tasmanian people rejected that right in preference to a right to a healthy environment.

The issue of human health as a regulatory priority of pollution laws will be explored in a forthcoming volume of the Michigan Journal of Environmental and Administrative Law. In the introductory essay by Uhlmann, he notes that:

“I would submit that the environmental laws themselves are human-centric … Our environmental laws focus on the need for pollution prevention to protect public health.”

He argues that in contemporary times: “We regulate hazardous waste, … when it has the substantial potential to be harmful to “human health and the environment (in that order).”

Ulhman is not alone in suspecting an internal US change in approach to greenhouse gas emission regulation (with human health as its core) is symbolic as well as pragmatic. In the same volume he notes that Tracy Bach presents research that shows the community is more likely to accept greenhouse gas regulations if climate change is understood as a human health issue. Bach, an environmental pragmatist, argues that we should attempt to secure atmospheric environmental protection through human interest.

Elsewhere in the US, the need for change climate regulatory responses are framed in environmental justice terms in order to persuade regulators to require emissions reductions from power plants rather than letting markets do that work so that communities that host energy infrastructure should see real benefits and changes in the quality of the air that they breathe. President Obama, admittedly with limited alternatives, has responded in a manner that his advisors claim responds to environmental justice and the claims of environmental justice advocates to limit emissions in vulnerable communities.

So, I want to bring you back to environmental justice in Australia. Now, perhaps as a result of the EDO’s two-year old report, we are seeing a clearer and more conscious and deliberate engagement with the concept in Australia. Chakraborty and Green have produced and analysed National Pollutant Inventory data maps with social advantage data showing a clear and strong correlation in Australia between a lack of advantage and presence of potentially harmful pollutants.

Moreover, Felicity Millner (pdf) from Environmental Justice Australia has written about the need to achieve fair access to justice in the environmental law field in Australia. This organization may take on a role as justice advocate, a role that Alkon et al identified as important in driving the environmental justice narrative, and the Clearing the Air report challenges us to confront and come up with a way to respond to an environmental injustice.

The constitutional fate of the Clean Energy Act

This post was first published on Opinions on High on 6 August 2013 as ‘News: Waiting for the mining tax case and forgetting about any carbon price case’
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Tomorrow we will learn of the High Court’s decision on the challenge by Fortescue Metals and others to the Commonwealth’s mining tax legislation – the Minerals Resource Rent Tax Act 2012 (Cth). The court heard that case in March this year. Professor Michael Crommelin from Melbourne Law School will be writing about the Fortescue case for Opinions on High.

Readers might recall that when public opposition, and threats about constitutional challenges, to the minerals resource rent tax was at its height, there were similar discussions about the carbon price legislation (the Clean Energy Act 2011 (Cth)). Here is an opinion by Professor George Williams from the time foreshadowing the likely constitutional objections to the mining tax and carbon price.

Nevertheless, there has still been no application made to the High Court to challenge the Clean Energy Act 2011. This is despite the many months of threats of challenge, and a writ and statement of claim being lodged with the court only a little over a month ago by Queensland Nickel.

Having reviewed that writ, it is apparent that the future of Australia’s carbon price is destined to be decided at the forthcoming election, and not by the High Court afterall. This is because the writ does not attack the legislation that creates and embeds within the economy the mechanism for pricing carbon. Instead, what Queensland Nickel is challenging is the constitutionality of the way the compensation scheme for trade exposed polluting industries was devised under separate regulations. Queensland Nickel argues that the compensation scheme discriminates across the states, inconsistently with section 99 of the Constitution, because it advantages some states, like Western Australia, over others, including Queensland. It does not challenge the carbon price.

Let’s link up: joining our carbon price to California’s

Here is a piece I co-authored with Katherine Lake for The Conversation.

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As the pace of international climate negotiations has slowed, the interest and attention of international organisations and climate policy watchers has been diverted to national climate change responses.

National programs are seen as a major driver of the next international climate change deal. In this setting, Australia is searching for partners to shape the future of a global market response to climate change.

Perversely, given that it was ostracised in climate negotiations for so long, Australia – with its climate price in place and a connection with the European Union’s emissions trading system assured – is now being portrayed as a climate leader and broker.

We recently attended a gathering in the United States of policy-makers, lawyers and scholars from Australia and California, and got the impression the carbon price has given Australia negotiating clout. While presentations were being made inside the conference venue, outside Australian government officials, led by Parliamentary Secretary for Climate Change and Energy Efficiency Mark Dreyfus, were discussing linking Australia’s carbon price scheme with California’s cap-and-trade system.

California has recently linked its now operational cap-and-trade system with Quebec. There is a real possibility of Australia linking its carbon price with California’s and further extending and entrenching cross-border carbon markets. In the next five years we might see Australian emissions reductions or emissions offsets being transferred between companies in Perth, Rome, Los Angeles or Montreal.

The contextual differences

There are contextual differences that Californian and Australian negotiators have begun to explore as a precursor to striking any deal to link carbon schemes.

As Australian legal scholars, including Godden and Prest have noted, Australia’s carbon policy has been framed by economics and market theory. Bureaucrats have acknowledged that Australia’s carbon laws are not environmental laws. They are laws that create a carbon market.

Australia’s carbon price and the market it creates is the centrepiece of Australia’s carbon laws. It is supplemented by incentives to promote renewable technologies (such as the Clean Energy Finance Corporation) and create offsets (like the Carbon Farming Initiative).

The Californian cap-and-trade system reflects a broader stakeholder concern than in Australia, and is described as a “back-stop” by the agency that designed and will implement it. It is only needed to address those carbon emissions that are not mitigated through the range of other environmental regulatory measures. These include:

  • ratcheting emissions and fuel standards;
  • bans on the expansion of coal and fossil fuel generation;
  • prohibitions on the purchase of carbon intensive fuels; and
  • statutory obligations on utilities to find energy efficiency savings.

Cap-and-trade is only expected to meet 20% of California’s emissions reduction target, whereas in Australia the carbon price is expected to deliver most of, if not all, Australia’s emissions reduction target.

Just as it did when negotiating its EU deal, Australia might need to modify its carbon legislation should California seek greater complementarity between systems.

Ultimately, we do not see the broader contextual differences as a barrier to linking. Once Australia’s scheme converts from a fixed price to a trading scheme, the structure and operation of the carbon pricing regimes will be fundamentally the same across both jurisdictions. There will be general compatibility between emissions reductions and emissions offsets, even if California’s scheme is only intended to achieve a minor proportion of its mitigation objectives.

The barriers

There are barriers that could delay or frustrate linking. There are reports California is concerned about the lack of an auction reserve price in Australia. While this has price implications, it is not a barrier to linking. Removing a price floor (and associated reserve price) was a feature of the European system that Australia adopted. California may also drop the feature if it wants to connect with Europe.

A more substantial barrier, in our view, is that despite California being a larger economy with a bigger population than Australia, it lacks international personality. Australia cannot negotiate a treaty with California to formalise any system connections. Both jurisdictions will likely be limited to non-binding memoranda of understanding and regulatory endorsement of each other’s schemes. Australia will face the risk of Californian regime change should the Unites States federal government limit or implement a carbon market.

A related issue is that Australia will need reassurance from the United States government that it will recognise Californian emissions reductions at the national level and in a global climate change agreement. It will also presumably be necessary to get the EU on side with such a link. This is because ultimately, once linked, Californian offsets allowed into Australia, at least indirectly, will also flow into the EU emissions trading system.

The prospects and opportunities

There is one positive to not being able to formalise the linking of schemes with a treaty. It means linking can be achieved relatively quickly, as was the case with the arrangement for one-way linking with the EU. We therefore do expect some form of linkage soon, possibly ahead of the Australian federal election.

The simplest way would be to link through offsets. California has a similar offsets mechanism to Australia’s Carbon Farming Initiative, covering the land and agricultural sectors. An initial link could be agreed through a one-way or mutual recognition of these domestic offset credits. For instance, emissions reductions generated by the capture of methane at landfills or the planting of vegetation could be traded between the two schemes.

This option was raised in the public discussions last week. California is currently seeking comments on using offsets from linked schemes. Significantly, the recognition of Californian offsets in Australia’s scheme could be achieved without further amendments to Australia’s carbon legislation.

There are significant political and structural opportunities for linkage for both Australia and California. California will continue to lead the United States, as it desires, on climate change – reaping the rewards of innovation and the plaudits of progressive law-makers. And it will continue to exert political pressure on the Obama administration to act.

For Australia, the more credentials it receives and the more connected its carbon price becomes, the more difficult and humiliating it will be for any future Coalition government to extricate itself from the system. This is a win-win scenario for the current government both politically and for its approach to taking action against climate change.

This article was co-authored by Katherine Lake, Senior Associate in the Climate Change and Energy Practice at international law firm, Ashurst.

Brad Jessup is a member, and owns a share, of Hepburn Community Wind Park Co-operative Ltd, a community-owned wind farm in rural Victoria, and is a member of the Victorian Environment Defenders Office. He has previously received funding from the Energy Pipelines CRC.

Katherine Lake does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

The Conversation

This article was originally published at The Conversation.
Read the original article.

Why environmental justice matters

Here is a presentation I gave at the EDO/CREEL Environmental Justice Symposium:

I want to present two somewhat related thoughts to you today about why environmental justice matters.

The first thought is: that environmental justice matters because the concept of ecological sustainable development has failed – ESD has become a catch-phrase, has always lacked meaning, and certainly no longer prioritises environmental protection and conservation. The concept of ecological sustainable development is not used to improve the livelihood of the least advantaged among us. The ecological modernists, and even the ecological industrialists, have employed the notion to achieve their ends, be they environmentally benign or destructive. Moreover, a legal system designed around an environmental justice framework might have caused decision-makers and ourselves greater reason to doubt the appropriateness of government decisions made about the environment and development.

This thesis is demonstrated by three Australian case studies which are the subject of my current research and which explores the aspects of distribution, recognition, participation and capabilities that David Schlosberg has identified as being components of a multi-faceted, hybrid and plural notion of environmental justice.

It is demonstrated in a battle over a landfill in rural NSW where the law at first intervened to halt a project that would have cross-generational adverse impacts on the rural future of the people of the township of Molong, whose landscape would include the home of a landfill and recycling plant owned and operated by, and servicing the people of, the neighbouring city of Orange. Later, however, the law allowed the court’s concerns to be downplayed as the project was rebadged as one of the most sustainable waste projects of state importance. The landfill was approved. The community was left with no meaningful avenue to the courts to challenge a dubious legal conclusion reached by the NSW Minister for Planning.

It is also seen in the environmental assessment process, an archetype of sustainability law, for the Channel Deepening Project here in Victoria, and was especially evident in the process for the sugarloaf pipeline, where the environmental law failed to guarantee expected and typical rights to participate in the project evaluation process in a meaningful way, a process already designed to advantage industrialist proponents.

It was evident in the dispute over logging in Tasmania’s Wielangta forest, where the ‘ecologically sustainable’ Regional Forests Agreement – a model of sustainability policy – was found to allow the endangerment of species the RFA was supposed to conserve and protect. While the court at first instance concluded that the law required an assessment to be undertaken before any activity would further diminish threatened species populations and the species’ capacity to flourish, the executive governments of the Commonwealth and Tasmania devised a work-around to permit logging in the forest despite its adverse impacts on the ecosystem.

My second thought about why environmental justice matters is that a principle of environmental justice is an important moderator of some our collective environmental enthusiasm. It should make us think before, as a community, we are seduced by the promise of environmental benefits using relatively novel policy approaches.

Last month I returned from a half-year research stay in the San Francisco Bay Area where environmental justice issues are raised and pursued by a number of grass-roots non-profits whose focus is on improving the environmental health of California’s most disadvantaged communities. While often the environmental justice groups work alongside traditional environmental groups, they have recently lined up against them in court.

The issue that has demonstrated a disjuncture between community-focused environmental justice groups and mainstream state and national environmental groups has been the Californian Government’s decision to adopt a cap-and-trade mechanism to reduce its greenhouse gas emissions.

The environmental justice groups succeeded in court by arguing that the government had failed to follow the process required of it in law because it did not evaluate alternative options for reducing greenhouse gas emissions – particularly a carbon tax – or indeed regulatory limits on emissions. The environmental justice movement’s concerns about a cap-and-trade mechanism include that there is an ability under that system to offset emissions. This might lead to total emission reductions but will not have the associated benefit of reducing the local pollution in some of California’s most polluted areas. They argue that the only fair way to reduce greenhouse gas emissions is to reduce them at source, and at every source.

The policy setting has already led to the development or proposal of new, more efficient and sustainable gas fired power plants – a cluster of them (each power plant just coming under the human health emission limit triggers for assessment and mitigation requirements – collectively they are over the limits). They are being built or proposed around the poor township of Richmond, though much of the power will be used in San Francisco where polluting power plants were closed owing to the lobbying efforts there of a wealthier and empowered community.

Rubbish to Molong: NSW Planning’s repressive approach to projects of significance

Would you classify a landfill for a rural city in New South Wales as state or regionally significant? Should it get a smoother ride through the planning system than other kinds and scales of development? Should it be immunised from local laws which discourage developments with adverse impacts?

Later this month we will find out what the NSW Government thinks. Can NSW get its planning laws in order so they respect local communities, provide a role for independent review, and protect the environment? If so, it will need to wrestle control from the Minister, whose predecessors have used the laws to advance a government-controlled development agenda.

The previous NSW Labor Government thought that a landfill built near the town centre of Molong in country NSW – the Orange Waste Project, which would be a dump for Orange’s rubbish – was regionally significant. It approved the locally controversial development in 2010 under the former Part 3A of NSW’s planning laws. This was despite local planning policy directing that the landfill should not be located on the chosen site and even though the courts had rejected a previous iteration of the development.

The assessment and approval of the Orange Waste Project stands as an illustration of how Part 3A operated at its best and its very worst. It demonstrated how a developer can be encouraged and cajoled into improving the environmental credentials of a development. But it also showed how a local community can have its social, economic and environmental concerns confirmed and supported by local laws, but then found insignificant compared to the presented benefits of a decreed regionally significant project.

Like so many other Part 3A developments, in this project the community was left with nowhere to seek redress despite having a case worth arguing.

The relevant planning policies said the proposed site – which would be used for landfill, composting and recycling – was valuable agricultural land. A permit could not be granted until the decision-maker assessed how the development would affect the present and potential agricultural uses of the land. And the decision-maker had to be satisfied that the landfill wouldn’t have an adverse effect on the long-term use, for sustained agricultural production, of any prime crop-and-pasture land.

The NSW Land and Environment Court overturned an initial approval of the landfill principally on the basis of this policy context. The Court found that the effects of the development would be adverse and long-lasting. On the actual site and in surrounding lands, agricultural uses would be displaced, restricted or put at potential risk.

There was also opposition because the town’s amenity would be affected by rubbish trucks going back and forth from Orange. And more symbolically, the people of Molong did not want their town to be the place where its neighbour’s rubbish, coming from a different local government area, would be dumped.

The developer, the Orange City Council, responded to the court decision by revising its project. It reduced potential environmental impacts and increased sustainable waste practices. Then it presented the tip proposal to the former government as regionally significant under Part 3A.

The Minister for Planning used a broad and practically unchallengeable power to decide that the project was regionally significant. In doing so the geographic scale for the decision-making changed. Local impacts would give way to perceived or potential regional benefits. This was even though the project’s “regionally significant” status was disputed by opponents. The decision was poorly supported by facts and statutory interpretation principles.

What happened next was what happened for over 98% of projects under Part 3A – the Minister approved it. The opponents’ opportunities for appeal were largely and symbolically denied within the planning laws.

We will soon find out what the O’Farrell Government thinks about the importance of certain developments that were previously assessed under the former Part 3A of NSW’s planning law. The NSW Parliament repealed this law shortly after the Coalition Government was voted into office. As part of a review of the NSW planning system, an options paper for reform, and the government’s response to it, are due to be released in June (though the options paper was also promised for April and May, so we shall wait and see).

The paper will certainty include new proposals for identifying, assessing and approving state significant developments. It is important to be able to identify critical and strategic developments warranting State Government oversight. But whether proposals can be framed in a way to pacify ongoing community anger about Part 3A will be interesting to watch.

Can the people of NSW expect meaningful reform? The test will be whether the breadth of the application of the previously laws is severely constrained to projects of true importance to the state. The control previously consolidated in the Planning Minister will have to be reduced and subject to objective standards of good decision-making. And the courts, communities and Parliament must all have defined roles in the new system.

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This article was written for and originally published by The Conversation. Read the original article. It is based on this earlier research.