Defending the Environmental Defenders in New South Wales

I am posting a letter by 59 environmental law professors in Australia that was sent to Premier Barry O’Farrell of New South Wales (NSW) in defense of Australia’s oldest and largest public interest environmental law firm, the Environmental Defender’s Office of NSW (EDO).  Since 1984 the has been at the fore protecting the public environmental interests of NSW.  Just as importantly for global environmental protection, lawyers at the EDO help contribute to the cause through participation in the Environmental Law Alliance Worldwide (E-LAW).  A pdf copy of the letter is here.

8 November 2012

            Via email: office@premier.nsw.gov.au

The Hon. Barry O’Farrell, MP
Premier of New South Wales
Level 40 Governor Macquarie Tower
1 Farrer Place
SYDNEY NSW 2000

Re: Maintaining Strong Funding for EDO NSW

Dear Premier O’Farrell:

We write to you with grave concerns about unwarranted cuts to funding for the Environmental Defenders Office in New South Wales (EDO).  This follows baseless criticism of the EDO and a concerted campaign to weaken its interventions in the courts on behalf of the environment.

Summary

The EDO is an essential feature of the legal landscape in NSW and, indeed, the nation.  It is a community legal centre that protects the people of NSW and advances their community-wide interests in a healthy NSW environment under the rule of law every day of the year.  Over nearly thirty years, the EDO has earned a national and international reputation for professional legal work of the very highest order in quality and integrity.

It advocates strongly, as it should, for the environment and the environmental concerns of the citizens of NSW.  It does this in and out of the court room, but always according to law and always beyond the ken of politics.  It provides a needed counterbalance to one-sided industry funded lawyering, and it has served the public brilliantly as this counterbalance with dedicated professionalism.  Through its work, the EDO has helped to make NSW an environmentally richer place to live.

Cuts to EDO funding (already approximately $40,000 for the coming quarter we understand) will do more much more harm than simply impeding legitimate public interest litigation.  It will also greatly impoverish environmental law more broadly in NSW in at least three additional ways, which are amplified in more detail in the body of this letter.

First, the people of NSW will lose the ability to obtain free legal advice about complex environmental problems.  They will be without free local environmental workshops concerning issues important to their communities.  They will depend ever more on the state bureaucracy for advice and courts, as unrepresented litigants, to challenge decisions.  This will add significant burdens to the state and means that little, if any, savings will be achieved as a result of the cuts to the EDO.

Second, environmental policy and law reform expertise at the EDO, built up over decades, will wither.  The community, parliamentarians, decision-makers, and other stake-holders that now depend on this expertise will lose a wealth of non-partisan expert knowledge on which to draw.  The alternative will be to pay high priced consultants and private practitioners for advice.

Third, the legal profession will be deprived of what has been a rich source of fodder for the bench, bar, and academe.  A unique training ground for future members of the profession will be lost and one of Australia’s best practical environmental law training grounds will be shattered.

Defending the EDO

Our purpose in writing is to stand in staunch defence of the EDO and its funding.  The signatories to this letter comprise fifty-nine (59) environmental law professors and professors with interdisciplinary environmental expertise from universities across Australia.  Some of our number were present at the creation of environmental law in NSW and know how instrumental the EDO has been in the law’s development.  Some of our number have worked as lawyers with the EDO and know, through personal experience, the EDO’s exceptionally high professional standards and its ethos of public service and ethical lawyering.  All of us have seen how important the EDO has been to sound and effective environmental law in the state since 1984.

Our concerns for the EDO stem from recent attacks, lacking any foundation, upon the EDO by private commercial interests, News Limited press, and by some parliamentarians.  We deplore these baseless assaults on the independence and impartiality of the EDO.  It is said that the EDO is somehow engaged in “legal obstruction” through frivolous and vexatious litigation.  This is blatantly untrue.  In nearly thirty years, the EDO has never had a case struck out as frivolous or vexatious.  Indeed, we are unaware of even the existence of any motion to strike out an EDO case on these grounds.  In this context, the recent claims of “legal obstruction” by detractors outside the courtroom appear in reality to be a thinly disguised assertion that the citizens of NSW should not be allowed to insist that the environmental laws of NSW be obeyed.  These detractors seem to be engaged in an attempt to undermine the legal right of the people of NSW to petition a court to enjoin development and other activities allegedly carried out in violation of law.  Slurs about the EDO like those being thrown about should be condemned.  Clearly, they should not be used as a reason to cut EDO funding.

Unfortunately, these attacks already appear to have had an entirely unwarranted, and increasingly devastating, impact on EDO funding through cuts to historic sources provided by NSW government ($40,000 for the coming quarter we are informed).  They also have raised uncertainty about vital future NSW government funding with more cuts threatened.  These cuts to EDO funding jeopardise its essential public interest work and its effectiveness in defending community environmental interests in NSW.  Based on the reasons that follow, we respectfully request you to ensure that the cuts that have already been made are reversed immediately and that sufficient future funding is provided to the EDO to enable it to continue its work in the community interest.

It is clear to us that the EDO deserves to be protected by the NSW government against these current attacks.  Failing to do so will harm environmental law in the state for years to come.  In turn, the environment of NSW itself will suffer.  It should be a matter of great pride in NSW that the EDO has received the continual support of successive NSW governments.  This support represents a commitment to the NSW community’s environmental interests ahead of private interests.  In particular, it is a commitment to providing a community legal resource that enables public environmental interests, which would otherwise go unheard, to match narrow individual and commercial self-interests represented by expensive private lawyers.

From our point of view as environmental law scholars, we highlight below four key legal and community benefits that the EDO has long provided and continues to provide to NSW.  Without the EDO, these benefits — provided for much less than the real cost the government would incur to provide itself or pay private law firms to provide — will likely disappear.  This must not be allowed to happen and sufficient EDO funding should be guaranteed by the government.

Implementing and clarifying environmental law through public interest litigation

All of us have witnessed directly how important the EDO has been in the development of crucial aspects of environmental law in NSW through public interest litigation.  At the outset we note that the complexity of environmental problems imposes inherent limits on litigation as a means for addressing them.  This is well understood by the EDO.  It only uses litigation as a last resort. The decision whether to engage in litigation and which cases to pursue is the product of strategic planning, which includes an understanding by the EDO that an alternative approach may be more effective.  The EDO possesses the skills set needed to pursue alternative efforts when necessary.

In cases where litigation is appropriate, the EDO has always acted in the community’s environmental interest for a wide array of clients.  It acts, most importantly, to ensure citizens’ environmental concerns are heard and their legal claims are protected through law.  EDO public interest litigation has repeatedly focused public attention on leading environmental issues of the day, which, in turn, has promoted healthy public debate about environmental protection in NSW.  Just as importantly, as NSW Land and Environmental Court Chief Judge, Brian Preston, has highlighted, public interest cases, like those run by the EDO, provide a number of additional public legal benefits.  In particular, these cases can help clarify difficult or ambiguous rules for the benefit of all, avoiding time-consuming uncertainties in the future.  They can expose the need for law reform and gaps in the law that lead to improvements in the legal system for the benefit of all.   They can provide a beneficial legal and scientific platform for the further development of law in future cases.

In a complex and constantly changing area of law like environmental law, it is essential that litigation in the public interest be an available option in order to protect the community’s interest in a healthy environment and to help realise all the associated benefits.  The EDO is the only legal centre with the expertise and professional legal skill, acquired over a long period of time, necessary to provide this service.  It should be supported in this role and it should continue to be provided sufficient funding by the NSW government.

Environmental law advice and community education in NSW

The EDO devotes the bulk of its resources to public services other than litigation, including the provision of legal advice and community education.  Since its inception, the EDO has provided free environmental legal advice to thousands, if not tens of thousands, of citizens in NSW.  Providing expert legal advice in the early stages of environmental disputes frequently avoids misunderstandings about what can usefully be achieved through legal proceedings and guides citizens towards more effective means of dispute resolution.   In this sense, the EDO is the epitome of a pro bono community legal service.  In addition, the EDO has long provided free community legal education on specific topics and issues in locally based workshops.  Hundreds of these workshops have been held since the EDO began.  More recently, the EDO has established a dedicated indigenous community program that helps to provide environmental justice to Aboriginal people by redressing disadvantage.  Finally, EDO community legal education is also provided through a host of plain English publications, some of which have even been used in law school classrooms.

All of these services provided by the EDO assist the NSW government to ensure it has robust public participation in environmental matters across the state.  In the 1992 Rio Declaration, Australia and the international community unanimously declared in no uncertain terms that “[e]nvironmental decisions are best handled with the participation of all concerned citizens …”.  The certitude of this declaration was built, in part, on the earlier path-breaking experience of NSW, aided by the work of the EDO.  Public participation has since developed into a shared standard of international best practice among countries and, according to some scholars, it is today a customary legal requirement of international law binding on all levels of government within a country.  Public participation provides government with democratic legitimacy.  It is also a fundamental component of an environmentally just and ecologically sustainable government system.  The EDO is vital to ensuring the commitment to public participation in NSW is met and its funding must be adequate to do so.

Practical legal education for future lawyers in NSW

Since at least 1997, the EDO has provided opportunities for experiential learning to future lawyers at no cost.  This sort of “guild” legal education, where students are taught by example, has long historical roots and the experience gained is translatable across all areas of legal practice.  Unfortunately, these sorts of opportunities are not readily available today, which provides another reason why funding to the EDO should be protected.

The University of Sydney Law School, for instance, builds part of its Social Justice Program for students around clinical legal education provided by the EDO.  The same is true of a relationship that exists between the Australian National University College of Law and the EDO in the ACT.  The EDO legal clinic exposes students to real-world cases and enables them to apply knowledge gained in the classroom under the supervision of a practitioner.  Engaging with real cases, also allows students to develop practical skills.  Students are able to interview real clients, conduct advanced legal research, draft written submissions, and engage in law reform work.  All of this helps prepare the student for the profession.

EDO lawyers also regularly contribute guest lectures – without charge – to courses in environmental law, planning and environmental science at the University of New South Wales, the University of Sydney, Macquarie and other universities. Less formally, EDO lawyers often speak at careers events and offer mentoring and advice to young law students.

Environmental policy and law reform work

The EDO has shined for many years as “the” expert source for environmental policy advice and recommendations on environmental law reform.  The community, governments, individual parliamentarians, industry, and academics have relied on the EDO’s policy expertise and input into law reform efforts over many years.  The EDO assists government in communicating complex proposed changes to the law to the community, thereby saving government resources.  The list of EDO policy and reform work is long and impressive.  David Robinson’s excellent history of the EDO’s first ten years in the 1996 volume of the Environmental and Planning Law Journal collects influential early examples of policy suggestions and reform proposals made by the EDO that were translated into law and effective action.

Other examples of EDO policy and reform work include advice on some of the most significant developments in NSW and Australia.  In the late 1990s, for example, the EDO was instrumental in the Commonwealth’s 1999 Inquiry into Commonwealth Environment Powers, which examined the division of roles and responsibilities between states and Commonwealth, ensuring state priority as appropriate.  It was also heavily involved in environmentally progressive additions to the flagship “second generation” environmental law of the Commonwealth, including its provisions on bilateral agreements between states and Commonwealth, as it passed from a Bill to the Environmental Protection and Biodiversity Conservation Act.  More recently, in 2010 the EDO has been the “go to” source for NSW advice on “Reconnecting the Community to the Planning System”.  It has since provided detailed and comprehensive policy recommendations on planning reform process that followed, including initiatives such as the Public Participation Charter which the government is proposing to introduce.

This is but a small sample of EDO work in the policy/law reform field.  The EDO has been at the coalface of policy and reform development in NSW by request literally hundreds of times since it began.  Its expertise is consistently relied upon by the community and governments.  Clearly, the retention and further development of this public interest expertise should be adequately supported by continued funding by the NSW government.

Conclusion

The EDO is a vital feature of the legal system in NSW.  It serves foremost as a NSW public interest environmental legal defender par excellence, assisting to hold proponents, polluters and government to the environmental standards set out in environmental legislation.  It employs solicitors with the highest professional abilities and standards for at least half the remuneration of what comparable solicitors in private firms receive.

The EDO deserves better from the NSW government.  It deserves to be protected from these current attacks.  Failing to do so will harm environmental law in the state for years to come.  In turn, the public environment of NSW itself will suffer over the long-term at the expense of short-term, individual interests.

Thank you for your consideration.  We would be happy to discuss this matter further if you so desire.

Kind regards,

Donald K. Anton

on behalf of the fifty-nine (59)

Environmental Law Professors and Academics listed in Annex I

Annex I

Environmental Law Professors and Academics Signing the letter above

Dr Afshin Akhtarkhavari
Associate Professor / Reader in Law
Deputy Head of School (Academic)
Griffith Law School
Griffith University
Professor Donald K. Anton
Associate Professor of Law
The Australian National University College of Law
The Australian National University
Professor Hope Ashiabor
Associate Professor of Law
Department of Accounting and Corporate Governance
Faculty of Business and EconomicsMacquarie University
Dr Paul Babie
Associate Professor of Law
Adelaide Law School
The University of Adelaide
Dr Robyn Bartel
Secretary, Institute of Australian Geographers
Senior Lecturer and Discipline Convenor, Geography and Planning.
University of New England
Dr Gerry Bates
Adjunct Professor of Law
The Australian National University College of Law
The Australian National University
Sydney Law School
University of Sydney
Mr Tom Baxter
Lecturer
School of Accounting & Corporate Governance
University of Tasmania
Professor Ben Boer
Deputy Chair, IUCN World Commission on Environmental Law
Emeritus Professor in Environmental Law
Sydney Law School, University of Sydney
Professor Tim Bonyhady
Director, Australian Centre for Environmental Law
Director, Australian Centre for Climate Law
The Australian National University College of Law
The Australian National University
Dr A J Brown
John F Kearney Professor of Public Law
Convenor, Higher Degrees (Graduate) Research
Griffith Law SchoolGriffith University
Professor Karen Bubna-Litic
Associate Professor
School of Law
Division of Business
University of South Australia
Dr Peter Burdon
Lecturer in Law
Adelaide Law SchoolThe University of Adelaide
Professor Donna Craig
Professor of Environmental Law
School of Law
University of Western Sydney
Dr Angela Dwyer
Senior Lecturer
Faculty of Law
University of Technology, Sydney
Dr Andrew Edgar
Senior Lecturer in Law
Sydney Law SchoolUniversity of Sydney
Dr Philippa England
Senior Lecturer
Griffith Law School
Griffith University
Professor David Farrier
Emeritus Professor
Centre for Conservation Biology and Environmental Management
University of Wollongong
Professor Rob Fowler
Chair, IUCN Academy of Environmental Law
Adjunct Professor of Law
School of Law
University of South Australia
Professor Alex Gardner
Associate Professor of Law
Faculty of Law
University of Western Australia
Adjunct Professor, ANU College of Law, ANU
Dr Josephine Gillespie
Lecturer
School of Geosciences
Faculty of Science
The University of Sydney
Mr Paul Govind
Lecturer in Law
Department of Law
Macquarie University
Dr Nicole Graham
Senior Lecturer
Faculty of Law
University of Technology, Sydney
Mr Brendan Grigg
Lecturer
School of Law
Flinders University
Professor Warwick Gullett
Dean and Professor of Law
Faculty of Law
University of Wollongong
Mr Wayne Gumley
Senior Lecturer
Department of Business Law and Taxation
Faculty of Business and EconomicsMonash University
Professor Neil Gunningham
Director, National Research Centre for OHS Regulation
RegNet, Research School of Pacific and Asian Studies
The Australian National University
Ms Madeleine Hartley
PhD Scholar
Faculty of Law
University of Western Australia
Visiting Scholar (2011-2012)
University of Denver, Sturm College of Law
Professor Samantha Hepburn
Associate Professor of Law
School of Law
Deakin University
Dr Cameron Holly
Senior Lecturer in Law
UNSW Law
University of New South Wales
Dr Laura Horn
Senior Lecturer in Law
School of Law
University of Western Sydney
Mr Brad Jessup
Lecturer in Law
Melbourne Law School
University of Melbourne
Professor Michael Jeffery, QC
Professor of Environmental Law
School of Law
University of Western Sydney
Dr Andrew H Kelly
Associate Professor of Law
Faculty  of Law
Institute of Conservation Biology and Environmental Management
University of Wollongong
Mr Peter Lawrence
Senior Lecturer
Faculty of Law
University of Tasmania
Mr Paul Leadbeter
Senior Lecturer
Law School
The University of Adelaide
Dr David Leary
Senior Lecturer
Faculty of Law
University of Technology, Sydney
Dr Lucas Lixinski
Dean’s Postdoctoral Research Fellow
UNSW Law
University of New South Wales
Dr Rowena Maguire
Lecturer in Law
Faculty of Law
Institute for Sustainable Resources
Queensland University of Technology
Dr Andrew Macintosh
Associate Director, ANU Centre for Climate Law and Policy
Associate Professor of Law
The Australian National University College of Law
Dr Simon Marsden
Associate Professor of Law
Associate Dean (Research)
Faculty of Law
Flinders University
Professor Paul Martin
Director, Australian Centre for Agriculture and Law
University of New England
Professor Jan McDonald
Professor of LawFaculty of Law
University of Tasmania
Dr Jeffrey McGee
Senior Lecturer
School of Law
Faculty of Business & Law
University of Newcastle
Dr Chris McGrath
Senior Lecturer (Environmental Regulation)
School of Geography, Planning and Environmental Management
University of Queensland
Professor Gary D Meyers
Professor of Law
Associate Dean, Teaching & Learning
Faculty of LawUniversity of Tasmania
Dr Gerry Nagtzam
Deputy Director, LLB Program
Senior Lecturer in Law
Faculty of Law
Monash University
Dr Jacqueline Peel
Associate Professor of Law
Melbourne Law School
University of Melbourne
Dr James Prest
Lecturer in Law
The Australian National University College of Law
The Australian National University
Professor Murray Raff
Professor of Law
Canberra Law School
University of Canberra
Professor Rosemary Rayfuse
Professor of International Law
UNSW Law
The University of New South Wales
Dr Sophie Riley
Senior Lecturer
Faculty of Law
University of Technology, Sydney
Co-Chair of the Teaching and Capacity Building Committee of the IUCN
Dr Daniel Robinson
Senior Lecturer
Institute of Environmental Studies
The University of New South Wales
Professor Greg Rose
Professor of Law
Faculty of Law
University of Wollongong
Dr Tim Stephens
Associate Professor of Law
Sydney Law School
University of Sydney
Professor Natalie Stoianoff
Director, Intellectual Property Program
Faculty of Law
University of Technology, Sydney
Professor Erika Techera
Professor of Law
Faculty of Law
University of Western Australia
Ms Amelia Thorpe
Lecturer in Law
UNSW Law
University of New South Wales
Dr Alexandra S. Wawryk
Senior Lecturer in Law
Law School
The University of Adelaide
Mr Matthew Zagor
Senior Lecturer in Law
The Australian National University College of Law
The Australian National University
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1 Comment

  1. Cuts to Environmental Defenders Office’s Represent the Latest Example of Environmental Barbarism

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