: Environmental justice in NSW: 
access for all or a closed club?

Environmental justice in NSW: 
access for all or a closed club?

Sophie Riley

Over one hundred years ago, the Irish jurist, Sir James Mathew, reportedly quipped that: ‘In England, justice is open to all, like the Ritz hotel.’ Behind this witticism lie serious issues regarding access to justice and equality of treatment before the law — similar issues, that in the context of environmental justice, currently reverberate throughout New South Wales.

It is a truism to say that possessing a legal right and being able to enforce it are two different things. In particular, legal rules concerning participation and rights of standing may theoretically apply across the board, yet their operation is often constrained by economic factors. For these reasons, institutions such as Legal Aid NSW and pro bono centres such as the Environmental Defenders Office (‘EDO’) perform essential community functions. The EDO, for example, has provided legal advice and representation to the community for almost 30 years. In doing so, it acts as a counterbalance to activities and sometimes oppressive tactics of those with commercial interests and deep pockets. Tacit recognition of the importance of the EDO is evident in the enthusiastic support that the Office has received from consecutive state governments — at least until now.

In an act of shameful sophism, the present New South Wales government has seen fit to dismantle EDO funding and market the changes under the rubric of ‘Greater Access to Justice for Disadvantaged’. A media release dated 20 December 2012, and issued by the Attorney General, Greg Smith, SC, would have the public believe that the government is channelling scarce resources where they are ‘most needed … to those who cannot otherwise afford [legal assistance] and for cases which are in the public interest’. The media release also notes that funding may ‘not be used for lobbying activities, public campaigning and providing legal advice to activists and lobby groups.’ These changes follow hot on the heels of relentless attacks aired in 2012, of an unparalleled and apocryphal nature, and that impugned the integrity of the EDO.

As the government has not released fuller details on the meaning of the phrase ‘activists and lobby groups’ it is open to speculation as to how regulators will differentiate between a deserving member of the public and an otherwise unworthy activist or lobbyist. Clearly, one means of making this distinction is to evaluate the type of matter in question. Given that the proposed changes involve substantial funding cuts to the EDO and follow government comments untruthfully accusing the EDO of being a vexatious litigant, one conclusion is that any person interested in environmental protection carries a suspicion of being branded as an activist or lobbyist. This of course means that they are considered undeserving of public funds.

Of deeper concern is what these changes portend for ideals of social inclusion. As with definitions of activist or lobbyist, details on the economic threshold or cut-off for provision of legal aid have not been made public. Considering that the media release suggests the changes are designed to benefit those who are so poor they cannot afford legal representation, the changes have the potential to create a large middle section of society without real access to representation. In recent times, the EDO has been successful in a number of cases against the mining and energy industries. Those whom the EDO represented were arguably not so poor that they would have qualified for legal aid, yet not so affluent that they could have afforded to litigate the cases. Moreover, the type of litigation under consideration may not have conformed to Legal Aid guidelines. Although in theory these members of the public have access to the legal system, their financial situation would have made that scenario unlikely. Accordingly, without support from organisations such as the EDO, a large section of society will effectively be locked out. This, of course, contrasts starkly with large commercial interests that are invariably well-funded, leading to a system where justice is denied based on economic reasons and risks becoming a closed club.

Perhaps part of the reason for the attacks on the EDO is that the EDO has been too successful. During its thirty-year history, it has been instrumental in leading-edge ‘public purpose litigation’. This likely brings its work into direct conflict with government policy. However, what the government has lost in its scramble to eviscerate the EDO is acknowledgement of the fact that if the EDO succeeds in litigation, it means the defendant has flouted the law; a situation made all the more reprehensible where the acts in question have covert government support. Ultimately, if the government turns environmental justice into a closed club by stymying the work of the EDO, it is not just environmental activists and lobbyists that will miss out, but society as a whole.

SOPHIE RILEY teaches law at UTS.

© 2013 Sophie Riley

(2013) 38(1) AltLJ 68
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access for all or a closed club?

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