Last week two Courts handed down decisions on opposite sides of the world that made me very, very happy.
Yesterday, GetUp won their High Court case and overturned the Howard era laws that restricted the number of Australian voters by closing the electoral roll at 8pm the same day as the election writs are issued. An estimated 100,000 extra people will be able to vote this election, and in future Governments will have to allow people to enroll to vote for at least a week after the election has been called. This means a lot more young people will be voting in future elections, and has essentially widened and strengthened democracy in Australia.
On Wednesday in the United States, California’s ban on gay marriage (“Proposition 8”) was overturned, with U.S. District Chief Judge Walker ruling that the ban on gay marriage was unconstitutional. He found that no legitimate state interest justified treating gay and lesbian couples differently from others.
When I got the text message from Simon on Friday when the High Court handed down their judgment, I was already thinking – because of the California decision- about how effective courts can be at cutting down unjust laws. Court cases can achieve outcomes to improve situations much more quickly, effectively and conclusively than political campaigns, in some cases where the circumstances are right.
People are often surprised when they discover I’ve got a law degree with first class honours from Sydney Uni, but haven’t gone into practicing law. I’d made up my mind pretty early on to be an environmental and human rights lawyer; by the time I was 15 or 16. The reason I decided this was because I thought that being a lawyer was all about cases like the High Court case that GetUp just won. I thought it was about fighting for the underdog, for the environment, for people’s rights.
And sometimes, it is. Those moments that Geoffrey Robertson wrote about in The Justice Game that inspired me to go into law are rare – but they do exist.
However, at Uni I quickly learned, through getting involved in more activism than I had been doing in high school, that laws could be changed by Governments to severely limit lawyers’ ability to pursue redress through the Courts (e.g. Howard’s refugee laws), and also that many of the things I wanted to change, in terms of protecting the environment, could rarely be brought to court.
Ultimately, I realised that laws alone weren’t the main barrier to social change and environmental justice, and we could win some battles in courts, but most had to be won in the public arena. I realised that when hearts and minds changed, the political situation (or Government) changed, and that led to new laws. Laws and courts don’t exist in a vacuum, but rather a context – and if you change the context, often the laws will follow. Sometimes it’s the other way around, but to rely on law as the only tool in my toolbox was, I decided, too risky.
The other reason I decided not to practice law was because I felt so strongly about climate change that I couldn’t bear being a lawyer that spent 90% of my time doing work unrelated to climate change in order to spend 10% of my time doing “pro bono” work on what I was passionate about. Even if I was to get a job at the wonderful and highly respected Environment Defenders Office, most of the cases seemed to be about planning laws rather than reducing pollution on a large scale.
Ultimately, there are plenty of great lawyers out there who have the skills to be brought into climate change cases when needed – but still not enough advocates and campaigners devoting the majority of their time to solving climate change. I decided that if the climate were to make a choice about my career (“What Would The Climate Do?”), it would rather that I set up the Australian Youth Climate Coalition than become a climate change lawyer.
This is the background to my thoughts over the past few days about the role of law in social change. Like other climate campaigners – I’m thinking of John Hepburn from Greenpeace and Pete Gray from Rising Tide in particular – I believe that law can play a strong role in solving climate change, here in Australia and internationally. Back when I was studying, this is what I focused on, at Sydney University with the wonderful lecturers Ben Boerr and Tim Stephens, and at Cornell Law School with Professor Rosen-Zvi. I wrote a case note on the Anvil Hill case that was published in the Sydney Law Review that shows how it can happen in practice.
There are several legal cases on climate change that are exciting and promising at the moment: domestic cases in other jurisdictions, and cases dealing with international law and climate change. A solid body of case law has been already developed that includes some wonderful cases. One of these was the Mass. v. EPA case that I studied intensively when I was at Cornell and that lead to carbon dioxide being ruled a “pollutant” and therefore giving the EPA power to regulate vehicle fuel emission standards.
I had a quick idea for a case that I’m wondering if I, or someone else, should pursue: suing the Australian Government (or any other recalcitrant and fossil-fuel obsessed Government, really) for breach of the Convention on the Rights of the Child. The fundamental right – of ensuring the survival of our next generation of children – is under severe threat from climate change. What do you think?
Anyway, these are some initial thoughts on a sunny Sunday. I’ll try to add another topic to this blog from now on – climate change law. Those two cases have restored the excitement and potential I used to feel as a law student about the ability of law to change the world. So to all the lawyers out there helping solve climate change in the courts – go for it!