Striking to uphold the law?

Dr Rowena Maguire, Dr Bridget Lewis and Dr Hope Johnson from the QUT School of Law discuss recent climate strike action, complacency around the climate crisis, and the need for Australia to have a credible climate policy.

Young people fight for their future

On Friday 20 September over four million people across 163 countries went on strike and marched through their towns and cities to take a stand against a lack of sufficient action to address the climate crisis. The climate strike was inspired by Greta Thunberg, the Swedish teenager who has educated and inspired school children across the globe about the necessity of taking sufficient action now to reduce greenhouse gas emissions. Thunberg passionately reminded world leaders that they should not be turning to children to find hope and or solutions to the climate crisis.

The school climate strike movement in Australia has three key demands:

  1. No new coal, oil and gas projects, including the Adani mine;
  2. 100% renewable energy generation and exports by 2030; and
  3. Fund a just transition and job creation for all fossil-fuel workers and communities.

These three demands are exceptionally reasonable given that Australia is a signatory to the Paris Agreement which has a long term temperature goal of limiting global warming to well-below 2 degrees above pre-industrial levels. Current predictions suggest that urgent action is needed now if there is to be any hope of meeting this internationally agreed target, as a common sign at the school strike reminded us: Denial is not a policy.

The school children on strike talk about their right to a future, an idea encapsulated in the international environment principle of inter-generation equity. This principle, which is part of most international environmental agreements and included in the Paris Agreement, states that current generations hold the earth in trust for future generations and requires that present generations manage the earth and its resources as custodians, as opposed to dominating or acting as masters over nature. In simple terms, school children are asking for leadership on climate change, so that they have a future to look forward to, a future which has diversity in plants and animals, a future that provides clean air, water and food, and a future that is not totally disrupted by natural hazards such as floods, drought, cyclones and fire.

Recently a group of eight Torres Strait Islanders submitted a petition against the Australian government to the United Nations Human Rights Committee. The petition alleges that Australia is infringing their right to culture, the right to be free from arbitrary interference with privacy, family and home, and the right to life. This is the first climate claim against the Australian government on human rights grounds and first claim internationally filed on behalf of inhabitants of low-lying islands.

Strong sense of complacency in Australia

At the 27th Annual Australian and New Zealand Society for International Law Conference in July 2019, Professor Christina Voigt reminded the audience in her keynote speech that international law does not have a great track record of dealing with international crises (such as war, natural disasters or refugees), thus highlighting the importance of taking action in the next 10 years to reduce emissions while there is still time to do so.

There has a been a strong sense of complacency around the climate crises, often justified by the belief that it is not possible to reverse climate change, that economic interests trump other interests and that it is too hard to change behaviour. Climate change is the product of generations of consumption and fetishized economic growth, and addressing it properly will require radical shifts in the way we think about our relationship with nature and a willingness to change the way we live. Consumption for the sake of consumption needs to be called out and questioned, consumption simply to fuel the economy is a misguided approach that underpins the current neoliberal economic model, which is premised on the need for constant economic growth, a goal which even economists acknowledge as being impossible to achieve.

Climate change is a huge problem but rather than articulate it in terms of its human consequences, it is often couched in methodical scientific and policy jargon, language which removes people from the equation, and allows people (especially politicians) to pretend that it does not exist. It is far too easy for our political leaders to hide behind carefully selected facts and figures or to point the blame in other directions rather than tackle the magnitude of the challenge that is before us. We need to start holding our politicians to account individually and asking them directly which side of history they want to sit on. Politicians need to start behaving like their house is on fire.

Australia needs a credible climate policy guided by Aboriginal & Torres Strait Islander knowledge and sovereignty

Australia does not have a credible climate policy, the current mixture of initiatives has been designed with the sole purpose of ensuring “business as usual”. Climate policy in Australia should be guided by Aboriginal and Torres Strait Islander knowledge of country and acknowledge their sovereignty over the land. This policy needs to demonstrate courage and reimagine the future, a future that is not premised upon economic growth, but a future premised on caring for people and the planet. Such a policy would:

  • Build Aboriginal and Torres Strait Islander leadership into its development and implementation;
  • Meaningfully represent the interests of future generations in decision-making;
  • Strengthen democratic institutions to ensure transparency and accountability over decisions that impact the climate;
  • Commit to reducing subsidies to fossil fuel projects;
  • Promote and enable renewable energy investments;
  • Support just transitions to a green economy, including through ensuring workers’ rights
  • Identify meaningful ways to prohibit land clearing;
  • Incentivize and support farmers to introduce climate smart agricultural practices;
  • Encourage local governments to introduce food protection zones to protect peri-urban farmland;
  • Invest in interventions to reduce consumption-based greenhouse gas emissions including by up-scaling public transport and promoting sustainable diets;
  • Encourage a shift away from an economy of consumption to an economy based on compassion and care.

Legal breakthroughs in NSW not applicable in Queensland

Promising developments in New South Wales over the last few months suggest that decision-makers in New South Wales agree with the school children that no new coal mines should be approved in Australia. The Rocky Hill coal mine was refused partially on climate change grounds – wrong mine, wrong time and NSW Independent Planning Commission recently refused to approve the Bylong Valley coal mine solely on the grounds of climate change and intergenerational equity, noting that while the economic benefits of the mine would accrue to present generations, the environmental, agricultural and heritage costs would be borne by future generations. These decisions show that when environmental law principles such as inter-generational equity are considered and applied they result in the inevitable conclusion that new coal mines cannot be justified.

Meanwhile in Queensland, the Adani coal mine has been given the tick of approval by both the governments and the courts, and the government recently extinguished native title over the proposed site, meaning that there are now only very low legal hurdles for the mine to jump before having full legal approval to go ahead. Environmental law in Queensland does not give blanket approval for new coal mines, however the interpretation of the law in Queensland has effectively done so in the past. Queensland courts are not bound by the decisions reached in NSW, but the recent decisions from NSW are certainly persuasive and hopefully influential in guiding future decisions of Queensland courts.

Extinction Rebellion, “emergency” defence and civil disobedience

Future climate action appears to be escalating largely led by the Extinction Rebellion, an environmental group using civil disobedience as a strategy to protest against inaction on climate policy. Extinction Rebellion will be leading a range of activities from 7-11 October across Brisbane and many of the protestors are willing to risk arrest and conviction to make their point. The last time that Australia saw this sort of citizen protest was during the movement to prevent building of the Franklin Dam in Tasmania where 1400 people were arresting (a campaign which was ultimately successful). The Queensland Police arrested 72 activists at the August climate strike for various offences including obstructing traffic and breach of peace. When defending these charges in the court, Extinction Rebellion members will test the extraordinary emergency defence  a defence created to respond to rare situations where a person breaks the law because of an emergency. In the context of the climate protests, the argument is that breaking laws, such as breaches of the peace, is defensible because we are in a climate emergency. Dr Nikki Rogers has just published a book which examines the emergency discourse and the extraordinary emergency defence. The relevant question for the court when considering the defence is “what is reasonable”? When determining “reasonability”, it is suggested that the court needs to take into account the structures that limit what an ordinary citizen can do regarding the climate crisis. When our government is failing to act in response to the impending crisis and citizens’ options are limited, is it not reasonable to take strong action through civil disobedience?

The school climate strike movement, unlike previous environmental law movements, shows some awareness of the impact of colonization upon global environmental degradation. The climate strike rally in Brisbane prioritised Indigenous voices and knowledge, a lesson that should be more broadly adopted in all environmental governance forums. With respect to the climate emergency debate, however, it is really important to acknowledge that there are concerns associated with declaring a “climate emergency” under the law. Emergency framing has historically been associated with the granting of significant power to leaders to take extreme action. In Australia, the framing of emergency was used to justify extreme measures against Indigenous populations such as the Northern Territory Intervention in 2007. Groups concerned with climate justice have advocated against the use of the term emergency on the basis that such framing opens the door for the introduction of untested geoengineering solutions becoming justified or seen as the inevitable action required to reduce greenhouse gas emissions when what is needed is systematic behaviour and economic change.

The window for averting climate disaster is closing and the changes we need to make are daunting. The determination of the school strikers and their supporters will only continue to grow until sufficient action is taken. Their commitment ought to spur us on to make changes in our own lives, and to demand stronger action from our politicians. The younger generation has called on us to act now to assure their future. It is up to us to not let them down.

Dr Rowena Maguire, Senior Lecturer, QUT School of Law
Dr Bridget Lewis, Senior Lecturer, QUT School of Law
Dr Hope Johnson, Lecturer, QUT School of Law

Alex Deagon on the necessity and means of protecting institutional religious freedom

Institutional religious freedom is not absolute, but what kind of specific rights or exemptions should exist?

Senior Lecturer Dr Alex Deagon contends that the religious freedom of institutions is a cornerstone of democracy and must be protected, and he discusses this in a blog published as part of a ‘Real-World Approaches: Freedom of Religion or Belief’ series on the ‘Religion and Global Society’ blog for the London School of Economics.

Far from being a threat to liberal democratic states, Alex argues that protecting religious associations preserves the development of the structures, processes and content necessary for the progress of democracy.

Alex explains that “democracy requires the nurture of diverse voices that inform public understanding of human advancement and the common good, and it is precisely within such faith and other communities that people can develop, nourish and deploy their voice.”

“Religious institutions need the space to independently form and develop unique perspectives which they can contribute to public discourse.”

You can read Alex’s blog post, The Democratic Imperative: On the Necessity and Means of Protecting Institutional Religious Freedom, on the Religion and Global Society blog.

About Alex Deagon

Alex’s expertise includes theories of law, law and theology, and freedom of religion, and his research has been published in many prestigious national and international journals.

You can learn more about Alex and his research and publications in his staff profile.

Technology companies and protecting our rights

Professor Nicolas Suzor’s recent book, Lawless: The Secret Rules That Govern Our Digital Lives, examines the power that social media platforms, search engines, and other technology companies have over our lives and the need for new digital constitutions that protect our rights.

The book shows us how our social lives, our news, and our information environments are shaped by a complex web of legal, technical, and social forces.

Drawing on ten years of research, Nic’s book offers a vision of a vibrant, diverse, and flourishing internet that can protect our fundamental human rights. Lawless is a must-read for those that care about the internet and the future of our digital lives.

Lawless is available from amazon.com.au. A free open access full PDF of the book is also available.

About Nicolas SuzorProfessor Nicolas Suzor

Professor Nicolas Suzor researches the regulation of networked society. He is a Professor of the QUT School of Law, and a Chief Investigator of QUT’s Digital Media Research Centre.

Nic is also the Deputy Chair of Digital Rights Watch, an Australian non-profit organisation whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.

You can learn more about Professor Nicolas Suzor and his research in his staff profile.

QUT Faculty of Law Journal Law, Technology and Humans publishes first article

Law, Technology and Humans is an international, open access, peer-reviewed journal publishing original, innovative research concerned with the human and humanity of law and technology.

Image by Jon Tyson

Supported by the QUT Faculty of Law, the Journal was launched earlier this year alongside the QUT Law Lab and is one of four QUT-supported scholarly journals.

Ahead of the inaugural issue scheduled for later this year, Law, Technology and Humans has published its first article. Towards the Uberisation of Legal Practice considers ‘NewLaw’, a new business model in the delivery of legal services.   Emerita Professor of Law at the ANU College of Law Margaret Thornton discusses the key features of NewLaw entities and the ramifications for individual lawyers, with some interesting perspectives in regards to gender and age.  Online first at https://lthj.qut.edu.au/article/view/1277

Follow Journal announcements on Twitter @LawTechHum

To learn more about the journal you can visit the website or contact the journal’s General Editor Professor Kieran Tranter at k.tranter@qut.edu.au. 

 

 

Annual research scholarship round – apply now

Applications for our annual research scholarship round are now open for students starting in 2020.

Apply for a research degree and register your interest in a scholarship any time between now and 30 September 2019.

You can help find real-world solutions to a diverse range of topics in law. Possible research topics in the School of Law include:

  • International human rights law
  • Children’s health law
  • Jurisprudence and theories of law
  • New Technology and the law
  • Japanese and Asian comparative law

Find out more about research projects on our website.

An information session will be held on Tuesday 3 September, 10am-11am, at Gardens Point, Z Block, Level 10, the Gibson Room (1064). This will also be a recorded Zoom session. To register your interest in joining the session via Zoom, email research.scholarships@qut.edu.au by no later then Friday 30 August 2019.

 

QUT and Griffith real world collaboration project on Diabetes

Dr Elizabeth Dickson (QUT) and Dr Malcolm Smith (Griffith University) are collaborating on research projects for the Australian Diabetes Education Association and Diabetes Australia. Both organisations are committed to improving the health and well-being of around 1.7 million Australians living with diabetes.

In September 2018, The Australian Government announced that it would allocate 6 million dollars to fund the development of a training program for school staff supporting around 6000 Australian school students with type 1 diabetes. The program will address current inconsistencies in the level of support offered to students in Australian schools.  It is of particular concern that not all Australian students with type 1 diabetes have access to school based assistance with and supervision of insulin delivery and blood glucose monitoring. Elizabeth and Malcolm conducted a review of relevant law and policy applicable to the safe delivery of insulin at school.

In 2019 Elizabeth and Malcolm have been conducting a similar review of law and policy as applicable to the safe administration by carers of insulin to people with diabetes and another disability that prevents self-administration.

This type of research is a great example of academics making an impact in the real world.

Read Dr Michael Guihot’s article about rules on the ethical development of artificial intelligence in The Conversation.

Dr Michael Guihot’s article  “Will we ever agree to just one set of rules on the ethical development of artificial intelligence?” has been published in The Conversation.

In his article, Michael discusses the ‘many, many guidelines’ from governments and other bodies around the world that seek to instil an ethical approach to developing artificial intelligence and whether these guidelines are enforceable. He also discusses the need to build some global consensus on artificial intelligence .

Michael’s current research focuses on ‘Artificial Intelligence, Robots and the Law” and he is currently co-authoring a book by that name. Michael’s research investigates the intersection of new technology and law, including the regulation of artificial intelligence, and the impact of new technologies on power and governance including how changes in global power structures affect private and public governance, and the impact of new technology on legal institutions.

Learn more about Michael and his publications in his staff profile.

Dr Alex Deagon’s religious freedom research published in the Sydney Morning Herald

Prior to the Federal Election unexpectedly won by the Coalition Government, Labour indicated its intention to remove religious exemptions to the Sex Discrimination Act (Cth) which allow religious schools to ‘discriminate’ against staff and students in the process of upholding a religious ethos. Dr Deagon was asked to contribute on this matter to a special issue of St Mark’s Review: A Journal of Christian Thought and Opinion on the topic of religious freedom in Australia after the Ruddock Review. Other contributors to the special issue included:

Dr Deagon’s article, ‘Maintaining religious freedom for religious schools: options for legal protection after the Ruddock Review’, argued that there are persuasive theoretical, international and constitutional reasons to provide robust legal protections to religious schools seeking to select and regulate their school community. On the eve of the election, Dr Deagon also authored a shorter opinion piece in the Sydney Morning Herald summarising this argument: ‘Folau verdict aside, Labor threatens religious freedom in schools’. Given the significant swing against Labor in seats with stronger religious affiliations, religious freedom may have been a significant factor in the election result.

Earlier, in April 2019, Dr Deagon also participated in the ‘Religious Freedom after Ruddock’ conference at the University of Queensland. He delivered a paper entitled ‘Religious Schools, Religious Vendors and Refusing Services after Ruddock: Diversity or Discrimination?’ The paper argued that the religious protections for religious schools to refuse marriage services if it conflicted with the doctrines of the school should also be extended to religious vendors who refuse marriage services.

The paper was accepted for publication in a special forthcoming issue of the Australian Law Journal, along with other contributors such as:

  • Professor Nicholas Aroney, Professor of Constitutional Law at the University of Queensland and member of the Ruddock Religious Freedom Review Panel, and
  • Professor George Williams AO, Dean, Anthony Mason Professor and Scientia Professor of the University of New South Wales Law School.

You can find out more about Alex’s research interests and publications here.

Single-use Plastic Waste Policy in 2018: What will 2019 hold in store?

Dr Rowena Maguire and Dr Hope Johnson from the Faculty of Law are currently working with Dr Manuela Taboada (Design), Associate Professor Leonie Barner (Polymer Chemist) and Dr Glenda Caldwell (Design) on a transdisciplinary project funded by the Institute of Future Environments at QUT which aims to design out plastic waste. They will be launching an app shortly, which individuals can use to track their plastic waste.

In this blog, Dr Rowena McGuire and Dr Hope Johnson review single-use plastic waste policy in 2018 and discuss what 2019 will hold in store.

As Stephen Buranyi recently observed ‘Plastic is everywhere, and suddenly we have decided that is a very bad thing’. While the science on the impacts of plastics on marine life has been clear since the 1980s society has, until recently been happy to look the other way on our throwaway culture. This culture of convenience generates significant plastic waste, most of it arising from food packaging and most of it going directly to landfill. Once in landfill, our products of plastic convenience will continue to live on past our own life with plastic bags taking between 10- 1000 years to breakdown and plastic bottles taking 450 years or more to break down. The regulatory framework for addressing waste is referred to as the Circular Economy. The Ellen MacArthur Foundation identifies three principles of the circular economy: 1) design out waste and pollution; 2) keep products and materials in use, 3) regenerate natural systems. Historically, political support and leadership for laws encouraging reduced consumption and production have been generally low, due to our economic structure which depends upon the over-production and consumption of products. More recently, however, governments have started to embrace circular economy type initiatives due to the escalating costs of managing the waste from our throwaway culture.

Single-use plastic regulation around the globe in 2018

2018 marked a turning point for plastic pollution and for sustainable consumption more generally. The European Commission, the UK and local towns and provinces around the world banned, or announced an intention to ban, certain single-use plastic products. Maharashtra in Mumbai, India’s largest city with a population of 18.4 million, introduced criminal sanctions for manufacturing or selling a broad range of single-use plastic bags, plates and takeaway food containers.

2018 saw Chile ban retail businesses from using plastic bags. The theme for World Environment Day 2018 was “Beat Plastic Pollution”, which was paired with the release of the first ever UN report on the state of plastics and the governance required to curb plastic use. While China, which had imported an astounding 45% of plastic waste imports since 1992, restricted its imports of plastic waste products sending shock waves through public and private sectors in over 100 countries.

Supermarkets for the first time introduced “plastic free” aisles. Under the threat of government regulation Australian supermarkets voluntarily phased out light-weight plastic bags leading to an 80% decline in plastic bag use nationwide. The past 12 months have seen a distinct rise in the number of transnational companies restricting plastic straws from the likes of Starbucks, Disney and Ikea.

Closer to home, New Zealand has been phasing out single-use plastic shopping bags. Queensland introduced a ban on single-use plastic bags and a container-deposit scheme leaving NSW as the only state in Australia without regulations or plans to reduce plastics.

State and federal ministers in Australia agreed to a new 2018 National Waste Policy and the Senate Environment and Communications Reference Committee, released its report into Australia’s regulation and management of waste and recycling which emphasised that waste policies need to be based on waste reduction (i.e. preventing the creation of waste in the first place).

Early developments in 2019 suggest that governments are going to ramp up action on plastic waste with Vanuatu pledging phase out of disposable nappies, plastic cutlery and packing such as netting and clamshell cases by December 2019. Vanuatu and Costa Rica are racing to ban all single use plastic by 2021.

Government support for the circular economy is also growing at home with the Queensland Government announcing the establishment of Australia’s first Circular Economy Lab which aims to support innovative projects to change the way we think about material, resources and waste in Queensland. And the Hobart City Council in Tasmania has just voted in favour of introducing a by-law banning all single use plastics by 2020 (the ban covers cutlery, sauce sachets, straws, takeaway cups and lids).

Dr Rowena Maguire

What is propelling this regulatory action?

Individuals interact with plastic everyday. Its tangibility and its visibility, even to urban populations, separates it from other global environmental issues like climate change or soil desertification. Moreover, single-use plastics, unlike other resource intensive and environmentally persistent products, have alternatives that are, generally, widely accessible. Reusable bags and cups, for instance, are a well-recognised means through which individuals construct their self-identity as a compassionate person and communicate their membership into particular social groups such as those that hold environmental values. The War on Waste captured national attention and put our shameful waste practices under the spotlight. This show galvanised action by community groups and schools to tackle waste. Social media is also playing a role in making waste a visible problem by distributing disturbing images of plastic pollution harms across various social media platforms.

In addition to the tangibility and visibility of the plastics problem there are two other factors propelling regulatory reform on plastics: shifts in the international trade of waste; and growing scientific warnings over the harm of single-use plastic on our environment.
The China Plastic Ban of 2018 stopped the importation of mixed plastic products from entering China. Mixed plastic makes up the bulk of plastic packaging in Australia and has left local governments in Australia stockpiled with plastic waste, which is destined for landfill until alternative recovery pathways or new markets for mixed plastic emerge. Local governments remain under pressure from their constituents to pay for recycling onshore, but do not have capacity to pay for recycling of all mixed plastic waste.
Scientists lament that we have not only plastified human life, but we have also plastified the life and death of marine animals. The US Academy of Sciences estimates that 6.4 million tons or about 5% of all plastic produced ends up in the ocean. Plastic harms all marine life, including whales, turtles and seabirds, when ingested, either by physically blocking the gut of these animals or as a result of the containments within the plastic poisoning the animals.

Dr Hope Johnson

Plastic bag bans and other kinds of regulatory interventions reinforce and strengthen plastic reducing norms. The relationship between these factors is non-linear, and their relationship to legislative restrictions or bans varies depending on context. Regardless, the anti-single-use plastic movement shows that where leadership and public pressure are strong, regulation to reduce consumption and production of unstainable products is possible.

If you want to know more about Dr Rowena Maguire and Dr Hope Johnson’s research search their staff profiles.

Fiona McDonald secures International Senior Research Fellowship at Durham University

We are delighted to announce that Associate Professor Fiona McDonald has secured a place in Durham University’s Senior Research Fellowship programme, which she will commence in April 2019. The programme is designed to attract lively, inventive and influential figures in academia where Fiona will foment new and sustainable research collaborations across the panoply of Durham University’s collective activities. Fiona will sit in the Institute of hazard, Risk and Resilience, with internationally-recognised leaders in developing resilient, research-informed approaches to hazard and risk. Her research will focus on an ethical and legal analysis of facemask use in particulate air pollution events.

Associate Professor Fiona McDonald

Fiona is a co-director of the Australian Centre for Health Law Research, an Adjunct Associate Professor at the Department of Bioethics, Dalhousie University, Canada and  member of the Dalhousie University’s Technoscience and Regulation Research Unit . Prior to her appointment

in the Faculty of Law, Fiona was a research associate at the Health Law Institute at Dalhousie University, Canada and a legal advisor to New Zealand’s Health and Disability Commissioner.  Fiona’s research encompasses issues related to health governance and has four broad themes:

  • the governance of health and systems (with a focus on rural bioethics and disaster response)
  • the governance of health technologies
  • the governance of health professionals
  • the governance of health organisations.

Fiona’s work has been published in a range of international journals, she has presented at a number of international conferences, and has received grants, contracts and scholarships to conduct research in this area. You can read more about Fiona in her staff profile.