Climate Change Policy

 
 
Table of Contents 
 
Introduction ..................................................................................................................... 3 
Purpose ........................................................................................................................... 3 
Background ..................................................................................................................... 3 
Context - evidence regarding climate change ................................................................ 3 
Legal Implications of Climate Change ........................................................................... 4 
International law ........................................................................................................ 4 
UNFCCC and Paris Agreement .............................................................................. 4 
Broader international frameworks ........................................................................... 6 
Australia’s domestic frameworks ................................................................................ 7 
Implications for the legal profession .............................................................................. 8 
Shifting legal demands .............................................................................................. 8 
Climate change litigation ............................................................................................ 8 
Access to justice ........................................................................................................ 8 
Education and skills development .............................................................................. 9 
Professional ethical obligations .................................................................................. 9 
Operational considerations ........................................................................................ 9 
Law Council Policy Position .......................................................................................... 9 
The legal implications of climate change ....................................................................... 9 
Principles for the development of the law .....................................................................10 
Principles for the legal profession .................................................................................11 
Principles for the Law Council ......................................................................................12 
Review .........................................................................................................................13 
 
 
 
 

Introduction

1. The physical impacts of climate change and its far-reaching consequences have

become increasingly apparent, globally and in Australia, in recent years. These

developments have caused international and domestic legal frameworks to evolve.

2. They have also presented practitioners, educational institutions and the legal

profession at large with novel and complex challenges with respect to the

development, understanding and practice of the law and prompted legal practices to

adapt at a structural level.

3. In its role as the peak body for Australian lawyers on federal and national issues, the

Law Council has developed this policy statement. In so doing, the Law Council

draws upon its commitment to the rule of law and its organisational objects – from

furthering the betterment of law in the public interest and the administration of

justice, to developing and promoting advancement of the profession and the ethical

standards of practitioners.

Purpose

4. This Policy is intended to:

• provide an evidence-based policy position on climate change which furthers

the Law Council’s objects and is clearly linked to its remit, for use in its work;

• ensure that the legal implications of climate change are well understood from

different perspectives - while noting that these implications are wide-ranging,

complex and continually evolving – as well as the implications for the legal

profession itself;

• set out the Law Council’s position on the principles that should inform the role

and development of the law, the role of the legal profession, legal education

and legal practice in this area, having regard to the objectives of the Law

Council.

Background

Context - evidence regarding climate change

5. The scientific evidence for the existence of human induced climate change is clear.

It indicates that increased concentrations of greenhouse gases (GHG) in the Earth’s

atmosphere, caused by human activity, have led to global warming at a rate that is

unprecedented in at least the last 2000 years. Climate change is driving changes in

weather patterns, including more extreme weather and weather events.

6. The physical risks arising from climate change extend to almost all facets of natural

and human life, from terrestrial, sub-terranean and marine ecosystems to socio-

economic systems. In Australia, the physical impacts of climate change on

Australia’s terrestrial and marine ecosystems are linked to increased drought and

floods, bushfires, severe storms, land degradation, sea level rise, ocean warming,

coral bleaching and water scarcity.

7. The consequences of climate change include serious effects upon human life,

health and livelihoods. Rural communities, women, children, older people, First

Nations communities, migrants and displaced peoples are likely to be

disproportionately affected. Displacement events prompting forced migration are

more likely, including across the Asian-Pacific region.

The economic costs of

climate change-related events range from damage to infrastructure to loss of

productivity. Climate change is considered a ‘threat multiplier’ in global and regional

security terms.

8. The legislative and policy responses to climate change include mitigation, which

aims to limit net GHG emissions, and adaptation, which aims to minimise the harm

caused by climate change. The United Nations (UN) Intergovernmental Panel on

Climate Change underlines that ‘large, immediate and unprecedented’ global efforts

are required in relation to both mitigation and adaptation measures.

9. Responding to climate change also involves managing transition risks, which relate

to the process of adjustment towards a low-carbon economy. The global transition

is also likely to lead to new opportunities for Australian society and business entities

and these opportunities are beginning to be explored.

10. Multiple sectors, industries and businesses are, and are likely to continue being,

impacted by the physical risks of climate change and the transition towards a low

carbon economy. These agricultural, insurance and tourism sectors. Many are

already identifying, evaluating and addressing climate-related risks. There is

business support for greater long-term certainty on climate change policy.

11. Fundamental shifts in employment are also anticipated. Across the business and

community sectors, there is consensus about the need to support just transitions for

all Australians.

12. The legal implications of climate change are being tested before Australian, foreign

and international courts and tribunals, which are being called upon to determine the

legal boundaries of the human response to climate change. With the proliferation of

such litigation, some bodies have described climate change as presenting ‘litigation

risk’, as well as physical and transition risks.

iii

13. The Australian legal profession has a critical part to play as it advises clients on the

legal implications of all these shifts, challenges and opportunities, participates in the

development of mitigation and adaptation measures and promotes the rule of law as

a stabilising force.

Legal Implications of Climate Change

International law

UNFCCC and Paris Agreement

14. Australia, as one of 197 parties to the United Nations Framework Convention on

Climate Change

(UNFCCC), has agreed to the overarching objective of achieving,

in accordance with the provisions of the Convention, stabilisation of GHG

concentrations in the atmosphere at a level ‘that would prevent dangerous

anthropogenic [human induced] interference with the climate system.’

Such a level

should be achieved ‘within a time frame sufficient to allow ecosystems to adapt

naturally to climate change, to ensure that food production is not threatened and to

enable economic development to proceed in a sustainable manner’.

15. The UNFCCC sets out certain principles

to achieve this objective:

• parties must proceed on the basis of equity and in accordance with their

common but differentiated responsibilities and respective capabilities;

• the specific needs and special circumstances of developing countries,

particularly those which are particularly vulnerable to the adverse effects of

climate change, should be given full consideration;

• parties should take precautionary measures to anticipate, prevent or minimise

the causes of climate change and mitigate its adverse effects. Where there

are threats of serious or irreversible damage, lack of full scientific certainty

should not be used as a reason for postponing such measures. This is known

as the precautionary principle;

• parties have a right to, and should, promote sustainable development. Policies

and measures to protect the climate system against human-induced change

should be appropriate for the specific conditions of each party and should be

integrated with national development programmes, taking into account that

economic development is essential for adopting measures to address climate

change; and

• parties should cooperate to promote a supportive and open international

economic system that would lead to sustainable economic growth and

development in all parties, particularly developing country parties, thus

enabling them better to address the problems of climate change. Measures

taken to combat climate change, including unilateral ones, should not

constitute a means of arbitrary or unjustifiable discrimination or a disguised

restriction on international trade.

16. Australia is also a party to the Paris Agreement,

vii

a separate treaty made under the

UNFCCC which superseded the Kyoto Protocol.

viii

The Paris Agreement seeks to

strengthen the global response to the threat of climate change. The

parties to the

Paris Agreement have agreed to the long-term temperature goal of holding the

increase in global average temperature, compared to pre-industrial levels, to well

below 2°C, and pursuing efforts to limit temperature gain to 1.5°C higher than pre-

industrial levels.

They have also agreed to increasing their respective abilities to

adapt to the adverse impacts of climate change and foster climate resilience and low

GHG emissions development, in a manner that does not threaten food production,

and to making finance flows consistent with a pathway towards low GHG emissions

and climate-resilient development.

17. Australia’s legal obligations under the Paris Agreement include:

• aiming to reach global peaking of GHGs as soon as possible, and undertaking

rapid reductions thereafter in accordance with the best available science, to

achieve a balance between anthropogenic emissions by sources and

removals by sinks of GHGs in the second half of this century, on the basis of

equity, and in the context of sustainable development and efforts to eradicate

poverty;

• to prepare, communicate and maintain successive nationally determined

contributions (NDCs) that it intends to achieve for five-year periods, to achieve

the purpose of the Paris Agreement;

xii

• to communicate each NDC with the information necessary for clarity,

transparency and understanding in accordance with relevant decisions, every

five years;

xiii

• to make each successive NDC ‘represent a progression’ beyond the last,

reflecting ‘its highest possible ambition’;

xiv

• to pursue domestic mitigation measures with the aim of achieving the

objectives of its NDCs,

as well as engaging in adaptation planning and

actions;

xvi

• to regularly report on various information, including a national report of

anthropogenic emissions and removals by sinks of GHGs;

xvii

and

• to support developing countries’ efforts to implement the Paris Agreement.

xviii

18. As with all treaties to which it is a party, Australia is bound to comply with and

implement these obligations domestically, in good faith.

xix

Broader international frameworks

19. Australia must also comply with other environmental treaties that are inextricably

linked to the UNFCCC, particularly, the UN Convention on Biological Diversity,

requiring a national biodiversity strategy and action plan; and the UN Convention to

Combat Desertification,

xxi

requiring measures to address desertification.

20. Australia has also made broader commitments under instruments regarding the

environment which, while not legally binding, are authoritative.

xxii

These include the

Stockholm Declaration

xxiii

and the Rio Declaration

xxiv

, which reinforce the inextricable

relationship between the environment and human rights, and the responsibility to

protect and improve the environment for present and future generations.

xxv

Australia’s commitments under the 2030 Agenda for Sustainable Development and

Sustainable Development Goals

xxvi

include taking ‘urgent action to combat climate

change and its impact’.

xxvii

21. Australia is legally bound to comply with a series of treaties to respect, protect and

fulfil human rights.

xxviii

The UN Declaration on the Rights of Indigenous

Peoples

xxix

(UNDRIP) as a comprehensive standard on human rights for Indigenous

peoples, should also be considered authoritative.

xxx

22. Australia will increasingly be required to consider the risks that climate change

poses to the enjoyment of human rights, as well as the role of human rights

obligations in informing measures taken to mitigate and adapt to the changing

climate and its impacts. The Office of the High Commissioner of Human Rights

considers that:

…climate change threatens the effective enjoyment of a range of human rights

including those to life, water and sanitation, food, health, housing, self-

determination, culture and development. States have a human rights obligation to

prevent the foreseeable adverse effects of climate change and ensure that those

affected by it, particularly those in vulnerable situations, have access to effective

remedies and means of adaptation to enjoy lives of human dignity.

xxxi

23. The Human Rights Council has further recognised the right to a safe, clean, healthy

and sustainable environment as a human right that is important for the enjoyment of

human rights, as well as being related to other rights that are in accordance with

existing international law.

xxxii

24. International legal frameworks will continue to evolve in light of, and be interpreted

by reference to, the challenges presented by climate change.

xxxiii

At the same time,

international legal experts and other international sectoral policy makers will

continue to identify and tackle ambiguities in the existing frameworks.

xxxiv

25. Climate change litigation globally is raising novel causes of action across multiple

areas. Foreign and international courts and tribunals are being called upon to

determine the legal boundaries of the human response to climate change –

including the duties and obligations of law makers to take action in response to

climate change and its physical impacts.

Australia’s domestic frameworks

26. Australia’s domestic regulatory framework has been adapting to address the

physical and transition risks of climate change, with momentum now evident across

a range of areas and at federal, state and territory levels.

27. Commonwealth, state and territory governments have taken various steps to meet

Australia’s international obligations and drive the reduction of GHG emissions in

Australia. The Commonwealth has established mechanisms such as emissions

reporting, the renewable energy target, the national hydrogen strategy and other

measures to promote investment in renewable energy and low-emission technology

and carbon sequestration programs, including the Emissions Reduction Fund. At

state and territory level, specific emissions reductions targets have been set and

policy frameworks are being developed to pursue these goals.

28. Governments and regulators have taken steps in various ways to take into account

the physical and transition risks of climate change. For example, climate change

considerations are now incorporated in many assessment and decision making

processes for water resource planning, biodiversity conservation, environmental

impact assessment and planning and development. Financial regulators and the

Australian Treasury are seeking to understand the impact of climate change on

financial stability and the broader economy.

xxxv

29. However, gaps and uncertainties in the law exist and the overall regulatory

landscape has been in a state of flux for many years. The gaps and uncertainties

have been addressed in different ways, for example:

• Domestic regulators and business have adopted international tools to provide

guidance on future action. The widespread adoption of the Taskforce on

Climate Change-related Financial Disclosures’ recommendations

xxxvi

is one

example.

• Regulators have provided guidance on their expectations of regulated entities

with respect to the assessment and disclosure of climate change-related risks

and opportunities.

xxxvii

• In Australian courts, a wide range of climate change-related actions have been

decided, settled or are on foot. Parties have included individuals,

shareholders, First Nations persons, children, non-government organisations,

governments, corporations, trustees, and directors.

• The use of Royal Commissions to examine Australia’s preparedness for,

response to and recovery from disasters as well as improving resilience and

adapting to changing climatic conditions and mitigating the impact of natural

disasters.

xxxviii

30. While these approaches will remain important going forward, the next phase of

development of Australia’s regulatory response to the physical and transition risks

posed by climate change must offer long-term solutions with higher levels of

ambition and predictability in order to:

• achieve Australia’s Paris Agreement obligations, particularly its NDCs

reflecting Australia’s ‘highest possible ambition’;

• drive mitigation measures which will lead to these NDCs being achieved; and

• enable government, business and civil society across all sectors of Australia’s

economy to best manage the physical and transition risks posed by climate

change, and take advantage of its emerging opportunities. In this context,

consideration of the need for novel or existing forms of funding and tax

incentives may be required to assist the Australian economy to meet the cost

of climate change and the cost of transitioning to a carbon neutral or negative

economy.

Implications for the legal profession

Shifting legal demands

31. A broad spectrum of Australian individuals, businesses, community sector

organisations and government agencies face new risks, liabilities and challenges in

light of the physical and transition risks of climate change, and increasingly, are

seeking legal advice to navigate them.

32. Novel, complex questions of law are arising, and are likely to arise, across multiple

legal practice areas, from occupational health and safety, to planning and

development, to insurance, to water rights. Particular industries and sectors will

require tailored legal advice to meet a myriad of climate change-related challenges

and opportunities. Diverse groups of Australians will also present new demands –

from rural, regional and remote communities, to small business owners, to First

Nations communities.

33. Australian lawyers across the private, government and publicly funded legal

assistance sectors are adapting to climate change-related changes in the law and

shifting client needs, and new climate-focused practice areas are emerging.

Climate change litigation

34. Climate change litigation, globally and domestically, is raising novel causes of action

across multiple areas such as environment and planning, administrative,

corporations including directors’ duties, tort and negligence, consumer, contract,

insurance and human rights law, with varying degrees of success and implications

for Australian laws.

35. As well as advising and representing clients in litigious matters, lawyers need to be

alive to the unfolding legal implications of climate change and its consequences,

within their areas of skill and competence, as these matters are adjudicated or

settled over time.

Access to justice

36. Ensuring that access to justice is readily available to Australians in need will be

highly relevant in the climate change context. While legal assistance bodies and pro

bono service providers are already adapting to new legal demands linked to the

physical risks of climate change (such as lost dwellings or livelihoods due to

bushfires, floods, and droughts), they are doing so within an already strained,

underfunded system.

37. Additional legal demands may see an expansion of need in existing areas of law,

fuelled by poorer physical and mental health, and increased socio-economic

disadvantage. Climate change may compound existing disadvantage throughout

Australian society as poor and vulnerable people are less able to recover from and

adapt to a changing climate.

Education and skills development

38. The Australian legal profession’s requirements for specialist, climate-related legal

knowledge and skills will evolve in light of these changing demands. This evolution

is being supported by shifts in the content of legal education and professional skills

development by universities and continuing professional development providers. It

will be important to ensure that current and future generations of Australian lawyers

are well-equipped to meet the challenge.

Professional ethical obligations

39. Questions may arise about how lawyers should comply with their ethical obligations

under professional conduct rules and common law principles in the context of

climate change.

Operational considerations

40. Members of the legal profession may also be considering how, in the course of their

daily legal practice operations, their actions may contribute to Australia’s and global

efforts to mitigate and adapt to climate change. This may involve reducing their own

carbon footprint and introducing more environmentally sustainable business

practices.

Law Council Policy Position

The legal implications of climate change

41. Climate change, and responses to climate change, give rise to material, long term

physical and transition risks. Climate change, and responses to climate change, will

also create opportunities.

42. The impacts of climate change on the natural environment are well documented.

Where those consequences have a negative impact on the natural environment and

on human health and wellbeing, this may involve a diminution of human rights.

43. The physical consequences of climate change and mitigation and adaptation

measures have economic risks and costs. Failure to accommodate these risks and

costs potentially has broader economic consequence to the Australian economy.

Furthermore, the physical and transition risks associated with climate change may

fall disproportionately on particular groups, including people who are economically

disadvantaged and marginalised. Conversely, where opportunities are realised,

these groups may not enjoy the economic benefits.

44. The law has a role in supporting effective action on climate change, including the

development of new opportunities, and the mitigation of transition risks. The law:

• defines the international framework for taking mitigation and adaptation

measures;

• promotes informed decision making and transparency under legal frameworks

for the collection of data about sources of emissions and climate change risk;

• supports the implementation of mitigation and adaptation measures in

Australia;

• promotes accountability through legal action and the resolution of disputes

between states, corporations, communities, civil society organisations and

individuals.

Principles for the development of the law

45. The Law Council will assess and advocate on federal and national law and policy

reforms responding to human-induced climate change by reference to the following

principles:

Australia’s international law obligations with respect to climate change should be

fully implemented domestically

46. This encompasses Australia’s obligations under the UNFCCC and the Paris

Agreement and other relevant international agreements

xxxix

to which it is a signatory.

Implementation measures should respect the principles underpinning these

agreements, including the adoption of measures to mitigate and adapt to the

physical and transition risks of climate change that:

• reflect Australia’s highest possible ambition;

• are consistent with sustainable development principles;

xli

• are based on the best available scientific knowledge

xlii

• are cost-effective so as to ensure global benefits at the lowest possible cost.

xliii

47. Australia’s international human rights law obligations under relevant treaties, as well

as the UNDRIP, should be fully respected, protected and fulfilled.

xliv

Australia’s response should give effect to rule of law principles

48. The legal implications of climate change will continue to evolve as new measures

are implemented and gaps, uncertainties and inconsistencies in the law emerge.

Rule of law principles

xlv

that are engaged by these developments include the

principle that the law must be both readily known and available, and certain and

clear. New laws should promote certainty and clarity for those affected by climate

change mitigation and adaptation measures, noting that uncertainty may itself

amplify mitigation and adaptation risks. Litigation should not be relied on as the

primary tool for resolving emerging gaps, uncertainties and inconsistencies in the

law as litigation is an imperfect, costly and time-consuming method of driving a

response to climate change.

49. Other relevant principles include that:

• the law should promote transparent outcomes which are subject to

independent reporting and oversight;

• the law should provide for well-defined Executive powers, with actions taken

by the Executive to be subject to, and authorised by, the law; and

• everyone should have access to a competent and independent lawyer of their

choice in order to establish and defend their rights.

50. Access to justice must be available to Australians in need. Future service planning

and funding arrangements for legal assistance bodies will need to take account of

increased legal demands related to both the physical and transition risks of climate

change and communities should be informed about, and empowered to participate

in developing, relevant laws as they evolve, and their rights to access the law to

uphold and defend their rights.

Australia’s response should be fair and equitable and should promote public

confidence

51. Mitigation and adaptation measures adopted by Australia should:

• be environmentally effective and have regard to direct, indirect and cumulative

impacts on the natural environment;

• be economically efficient;

• provide for assessment of, and transparent reporting on, the effectiveness of

specific measures over time;

• be fair and equitable;

• promote the long-term interest of households, workers and communities with

respect to effective action to the physical risks of climate change and consider

the principles of a just transition,

xlvi

with a view to respecting, protecting and

fulfilling the rights to work, social security, an adequate standard of living, non-

discrimination and cultural rights;

xlvii

• identify and address the needs of marginalised communities and groups which

are most vulnerable to the physical and transition risks of climate change;

xlviii

and

• be informed by the knowledge and leadership of diverse communities – in

particular, of First Nations communities as the original custodians of the land,

by reference to principles of self-determination and free, prior and informed

consent.

xlix

52. Decisions about mitigation and adaptation measures should be:

• predictable, with policy and decision makers explaining clearly in advance

when climate change related considerations should, or will, be taken into

account;

• transparent, and to that end should be supported by analysis to explain the

economic costs and benefits and the environmental outcomes to be achieved,

and information about who will bear the burden and who will enjoy the

benefits.

Principles for the legal profession

Lawyers should advise clients on the legal implications of climate change in

accordance with professional standards and legal ethics

53. Lawyers should be alive to the unfolding legal implications of climate change and its

consequences, and they should be informed, skilled and ready to assist clients on

climate change-related legal matters, within their areas of skill and competence.

54. Lawyers should be responsive to the broad spectrum of clients across the Australian

community facing new legal risks, liabilities and challenges in light of the physical

and transition risks of climate change.

55. With respect to their ethical obligations in the context of climate change, lawyers

should be aware that existing professional ethical standards, which set out the core

standards to be observed, provide appropriate guidance as to the proper

professional role of a legal practitioner.

56. Lawyers should also be aware that advice regarding a legal problem should be

provided in a manner which meaningfully addresses any identified climate change

issues and related consequences, including the possible risks, liabilities and

reputational damage which may flow from activity that has a negative impact on

climate change. It is not suggested that lawyers should offer advice on matters

unconnected to legal issues or outside the scope of their retainer, but rather, that

legal advice should take into account the full range of contextual circumstances in

which it is given, consistently with professional obligations.

Lawyers should be encouraged to consider how they can contribute to efforts to

address climate change

57. Climate change, and responses to climate change, will continue to raise novel legal

issues leading to uncertainty about legal rights and obligations, in turn contributing

to transition risk. Lawyers should be encouraged to consider:

• how emerging gaps, uncertainties or inconsistencies could be addressed

within existing frameworks;

• how they may be able to contribute their specialist knowledge to support the

development of new laws relating to climate change; and

• how they can contribute to the better understanding of the legal implications of

climate change.

58. Lawyers should also be encouraged to consider how, in the course of their daily

practice, they can adopt achievable actions which contribute to Australia’s and

global efforts to mitigate and adapt to climate change.

Principles for the Law Council

59. The Law Council, as the national peak body for the legal profession, commits to

contributing to efforts to address climate change, having regard to the following

objects in its Constitution

• to promote and defend the rule of law in the public interest, anticipating that

the following principles

may be particularly relevant in this context:

- the law must be both readily known and available, certain and

clear – given law reforms will increasingly be required to respond

to climate-related gaps, uncertainties and unfolding novel

situations.

- States must comply with international legal obligations – in

particular, Australia’s specific treaty obligations to mitigate and

adapt to climate change under the UNFCCC and Paris Agreement,

as well as related obligations under environmental and human

rights treaties.

- everyone should have access to competent and independent legal

advice – this will require a clear emphasis on ensuring access to

justice, as well as ensuring that the profession is informed, skilled

and ready to assist clients on climate-related legal matters;

- the Executive should be subject to the law and any action

undertaken by the Executive should be authorised by law – for

example, it will be important to guard against the gradual erosion

of the safeguards which preserve democratic balance, when

Executive powers are created and exercised in light of climate-

related emergencies.

• to further the betterment of the law in the public interest on climate change

issues. This is linked to the Law Council’s rule of law role and relies on its

ability to draw together an informed view, based on the expertise and

involvement of the legal profession across multiple relevant fields.

• to ensure that the profession is informed, skilled and ready to assist clients on

climate-related legal matters, in consultation with its constituent bodies,

university peak bodies and other bodies, which are primarily responsible for

the delivery of legal education and professional development.

• to uphold the administration of justice in the context of climate change. This

includes ensuring that information about relevant laws is readily accessible,

and that the roles and functions of legal practitioners and the courts are

understood and upheld. It also involves ensuring that lawyers’ ethical

obligations are well understood.

Review

60. This Policy is consistent with the Law Council’s Strategic Plan 2021-2026. In the

context of the challenges posed by climate change, this Plan requires the Law

Council to:

• collaborate and ensure representation in all matters involving uniformity and

consistency of national laws, and federal law reform;

• represent the legal profession internationally;

• lead law reform and legal policy with expertise at the national and international

levels;

• work closely with decision-makers and law-makers to influence and shape law

which is consistent with the rule of law;

• promote and defend the rule of law in international jurisdictions and

particularly the Asian-Pacific regions;

• provide federal government and other stakeholders with balanced, respected,

independent and apolitical policy positions;

• ensure policies are evidence-based, culturally appropriate and acknowledge

Australia’s international obligations; and

• develop policies to assist the profession to meet the needs of future

consumers of legal services.

61. The Law Council commits to reviewing this Policy after a period of five years, in

conjunction with the development of future Strategic Plans, to ensure that it remains

fit for purpose against rapidly changing global, domestic and legal environments.

Sylvain Ponserre and Justin Ginnetti, Disaster Displacement: A Global Review, 2008–2018

(Internal Displacement Monitoring Centre, 2019), 5, 7. See also Jane McAdam and Jonathan Pryke, ‘Climate

Change, Disasters and Mobility: A Roadmap for Australian Action’ (Policy Brief 10, October 2020) Kaldor

Centre for International Refugee Law at 1.

Intergovernmental Panel Climate Change, ‘Special Report on Global Warming of 1.5C – Chapter 3’ (2018),

Executive Summary.

iii

Eg, the Financial Stability Board (FSB) refers to liability risks: FSB, The Implications of Climate Change for

Financial Stability, Report, 23 November 2020, 16.

See, United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771

UNTS 107 (entered into force 21 March 1994) (UNFCCC).

UNFCCC parties have committed to achieving this objective in a timeframe sufficient to allow ecosystems to

adapt naturally to climate change, to avoid threats to food production and to permit sustainable economic

development: art 2.

UNFCCC, art 3.

vii

Paris Agreement, opened for signature 22 April 2016 [2016] ATS 24 (entered into force 4 November 2016)

(Paris Agreement). Australia ratified the Paris Agreement on 10 November 2016: Statement by the Hon Greg

Hunt MP, ‘National Statement, Signing of the Paris Climate Change Agreement’ (New York, 22 April 2016).

viii

Kyoto Protocol to the United Nations Framework Convention on Climate Change, FCCC/CP/1997/L.7/Add.1

10 December 1997 (Kyoto Protocol). Under the Kyoto Protocol, Australia committed to limiting increases in

its net GHG emissions between 2008 to 2012 to 8 per cent above its 1990 levels and, between 2013 and

2020, to 0.5 per cent below the 1990 levels.

Paris Agreement, art 2.1.

Ibid.

Ibid, art 4.1

xii

Ibid, arts. 3-4(1).

xiii

Ibid, arts 4.8-4.9.

xiv

Each successive NDC must also reflect each party’s ‘common but differentiated responsibilities and

respective capabilities, in the light of different national circumstances’: Ibid, art 4.3.

Ibid, art 4.2

xvi

Ibid, art 7(9).

xvii

Ibid, art 13(7).

xviii

Ibid, arts 9-10.

xix

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered

into force 27 January 1980), art 26.

Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29

December 1993) (CBD).

xxi

United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought

and/or Desertification, Particularly in Africa, opened for signature 14 October 1994, 1954 UNTS 3 (entered into

force 26 December 1996) (CCD). The objective of the UNCCD is to: ‘combat desertification and mitigate the

effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa,

through effective action at all levels, supported by international cooperation and partnership arrangements, in

the framework of an integrated approach which is consistent with Agenda 21, with a view to contributing to the

achievement of sustainable development in affected areas.’ See, art. 2. This is the only binding international

agreement which makes the connections between sustainable land management on the one hand, and the

environment and development on the other. See, United Nations Convention to Combat Desertification, ‘About

the Convention’ <About the Convention | UNCCD>.

xxii

For example, the principles in such instruments may crystallize into customary law over time, or may be

subsequently adopted into binding agreements.

xxiii

The text of the Stockholm Declaration was developed at the first international conference on international

environmental law (IEL), the United Nations Conference on the Human Environment on 5 June 1972. See,

Report of the United Nations Conference on the Human Environment, UN Doc. A/CONF. 48/14, at 2 and Corr.

1 (1972) (Stockholm Declaration).

xxiv

Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26 (Vol.

I) (12 August 1992) annex I, principles 5, 7, 13, 24, 27, Principles 1 and 10.

xxv

The Stockholm Declaration also recognised that ‘[b]oth aspects of man's environment, the natural and the

man-made, are essential to his well-being and to the enjoyment of basic human rights [including] the right to

life itself’: Chapter 1, Preamble [1].

xxvi

Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1 (21 October 2015)

(SDGs).

xxvii

See, SDGs Goal 13.

xxviii

Including, but not limited to, the International Covenant on Civil and Political Rights opened for signature

19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); the International Covenant

on Economic, Social and Cultural Rights opened for signature 16 December 1966, 993 UNTS 3 (entered into

force 3 January 1976) (ICESCR).

xxix

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess,

107th plen mtg, Agenda Item 68, Supp No 49, UN Doc A/RES/61/295 (2 October 2007) annex (UNDRIP).

xxx

While the Declaration is not a treaty and does not itself create legally binding obligations, many, if not all of

its provisions, have been recognised as reflecting customary international law: International Law Association,

Rights of Indigenous Peoples, 75th Conference, ILA Resolution No 5/2012.

(30 August 2012); Federico Lenzerini, ‘Implementation of the UNDRIP around the world: achievements and

future perspectives’ (2019) 23 International Journal of Human Rights 51. See also Adam McBeth, Justine

Nolan and Simon Rice, The International Law of Human Rights (Oxford University Press, 2011) 456.

xxxi

OHCHR, ‘OHCHR and climate change’, online.

xxxii

The human right to a safe, clean, healthy and sustainable environment, UN GAOR, 48

sess, UN Doc

A/HRC/48/L.23/Rev.1 (5 October 2021).

xxxiii

Potential areas for future attention may include international security, given that climate change has been

characterised as a source of aggravation of international peace and security in a Presidential Statement

adopted by the United Nations Security Council, and its members have described climate change as a ‘threat

multiplier’ in various Security Council settings (Impact of climate change, United Nations Security Council,

6587

mtg, Resumption 1, UN Doc S/PV.6587 (20 July 2011), see also overview of subsequent debates in

Karin Landgren et al, ‘The UN Security Council and Climate Change’ (Research Report, June 2021) Security

Council Report <https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-

CF6E4FF96FF9%7D/climate_security_2021.pdf>). Another potential area is international human rights and

refugee law as it address the challenges faced by persons displaced because of climate impacts; however,

the UNHCR has indicated that what is required is guidance on the interpretation and application of existing

legal and policy frameworks (not necessarily the development of new frameworks): UNHCR, ‘Strategic

Framework for Climate Action’ (2021) 3.

xxxiv

Eg, the Oslo Principles on Global Climate Change Obligations, which seek to articulate the current

obligations of all States and enterprises to defend and protect the Earth’s climate (Antonio Benjamin, Michael

Gerrard, Toon Huydecoper, Michael Kirby, M C Mehta, Thomas Pogge, Qin Tianbao, Dinah Shelton, James

Silk, Jessica Simor, Jaap Spier, Elisabeth Steiner, and Philip Sutherland, Oslo Principles on Global Climate

Change Obligations (2015)); and the Principles on Climate Obligations of Enterprises (Jaap Spier (ed.),

‘Principles on Climate Obligations of Enterprises’ Expert Group on Global Climate Change (2020, Eleven

International Publishing).

xxxv

See, eg, Council of Financial Regulators, Council of Financial Regulators Climate Change Activity

Stocktake 2021, <https://www.cfr.gov.au/publications/policy-statements-and-other-reports/2021/council-of-

financial-regulators-climate-change-activity-stocktake-2021/#Appendix-%E2%80%93-Update-of-recent-

agency-activity>.

xxxvi

Task Force on Climate-related Financial Disclosures, Recommendations of the Task Force on Climate-

related Financial Disclosures, Final Report (June 2017).

xxxvii

Eg, Australian Securities and Investment Commission (ASIC) Report 593 on Climate Risk Disclosure by

Australia’s Listed Companies, ASIC RG 247 and RG 228; ASIC Commissioner Cathie Armour, ‘Managing

climate risk for directors’ (February 2021) https://asic.gov.au/about-asic/news-centre/articles/managing-

climate-risk-for-directors/; Australian Prudential Regulation Authority (APRA), ‘Understanding and managing

the financial risks of climate change’, letter to APRA-regulated entities (online), Monday 24 February 2020;

APRA, SPS 530 Investment Governance; APRA, ‘APRA releases guidance on managing the financial risks of

climate change’ (Media Release, 22 April 2021); draft Prudential Practice Guide CPG 229 Climate Change

Financial Risks.

xxxviii

Eg, the Royal Commission into National Natural Disaster Arrangements was established on 20 February

2020 in response to the extreme bushfire season of 2019-20 which resulted in loss of life, property and wildlife

and environmental destruction.

xxxix

Eg, the CBD and CCD.

Paris Agreement, art 4.3.

xli

UNFCCC, arts 3.3 and 3.4; Paris Agreement, art 4.1; also arts 6, 8, 10. See also the Law Council of

Australia, Policy on Sustainable Development, Policy Statement, 14 September 2019.

xlii

Paris Agreement, Preamble; arts 4, 7, 14.

xliii

UNFCCC, art 3.3.

xliv

Paris Agreement, Preamble; Law Council of Australia, Policy Statement on Human Rights and the Legal

Profession, May 2017, Law Council of Australia, Policy on Sustainable Development, Policy Statement,

14 September 2019.

xlv

Law Council of Australia, Rule of Law Principles, Policy Statement, March 2011.

xlvi

Paris Agreement, Preamble; For one description of the principles involved in a just transition, see

International Labour Organisation, Guidelines for a just transition towards environmentally sustainable

economies and societies for all, (2015). This states that ‘A just transition for all towards an environmentally

sustainable economy needs to be well managed and contribute to the goals of decent work for

all, social inclusion and the eradication of poverty (4, [4[]).

xlvii

ICESCR, arts 6,7, 8, 9 and 11; ICCPR, arts 2, 3, 26.

xlviii

Paris Agreement, Preamble, arts 6, 7, 9, 11.

xlix

Law Council of Australia, Indigenous Australians and the Legal Profession, Policy Statement, February

2010

Constitution of Law Council of Australia Limited, adopted on 16 April 2003, cl 2.

Law Council of Australia, Rule of Law Principles, Policy Statement, March 2011.