It’s basic civics that, of the three branches of democratic governance, it’s the legislative which makes the laws and the judicial which makes judgments about those laws.
Too many judges seem to have skipped Civics class. Activist judges, as they are known, seem to labour under the delusion that putting on a black dress and a funny wig grants them God-given powers to spin new laws out of whole cloth.
It must be seductive creating new law. It sure beats following the boring path of precedent. Any old judge can do that. When you craft new law, you get to play dazzling legal alchemist, mixing a bit of this and a bit of that, throwing in just enough lines from a string of cases to suggest what you’re concocting is beyond question, legit. Shazam, out of thin air you have fashioned a new legal duty that you hope may change the world.
Judges who failed as politicians are the worst. Maybe it’s a form of revenge: if the hoi polloi weren’t wise enough to recognise the activist beaks’ birthright to rule, they’ll go right ahead and make laws to spite them.
How else to explain the arrogant presumption of these be-robed activists?
In the Federal Court last week, legal alchemy was on show in spades. Justice Mordecai Bromberg created a novel duty of care and decided the federal Environment Minister must not make decisions that cause harm to Australian children by adding to the effects of climate change.
To take that principle to its logical conclusion – to apply a reductio ad absurdum test – that means that the Environment Minister cannot do anything. Because absolutely anything the Environment Minister decides adds to the effects of climate change, one way or the other. Every human activity impacts the climate, in even the smallest manner.
If “adding to effects of climate change” is defined as “causing harm”, then the only option the minister has is to immediately eliminate humans from the face of the earth. Best do it by some magical disintegration – can’t have the greenhouse gases from nine billion rotting corpses angering the Sky Dragon.
Naturally, the Thunberg Jugend are behind this latest eructation of judicial cretinism.
The case was brought as a class action by eight young Australians, all under 18, challenging an application for an extension to Whitehaven’s Vickery coalmine in NSW. The kids – or their lawyers – asked the court to create a new common law duty of care so Environment Minister Sussan Ley must make decisions in the best interests of their health, arguing that any extension to the coalmine would add to emissions and cause catastrophic harm to their health. The minister’s lawyers rejected this, pointing out that the Environment Protection and Biodiversity Conservation Act determined the decision-making structure for the minister.
Democracy? Objection!
The judge sided with the kids, pulling a “coherence” rabbit of his hat – arguing that the act makes coherent sense only if a judge creates a novel duty of care[…]
Bromberg delivered an indulgent halfway house judgment. Having created a novel duty of care, he went into pontificating preacher mode, told Ley that, thanks to his brilliant judgment, she is more educated about climate change than she was before the case. She should think carefully about what she does next.
The conceit of this failed Labor politician – Bromberg unsuccessfully contested ALP preselection in 2001; he also delivered the notorious “racial discrimination” judgment against Andrew Bolt – apparently knows no bounds.
But it must be exciting to imagine you have the nation’s children as your audience when you decide to play philosopher king. Bromberg has excited climate change activists, too, who don’t give a toss about the separation of powers and are rejoicing. And lawyers can hear the dulcet sounds of ka-ching, ka-ching as they marshal new groups to launch more class actions to explore new legal territory.
The Australian
The Krazy Klimate Kult have long moaned that “all this democracy stuff” just gets in the way of them telling us plebs what to do. Bromberg seems to agree with them. Democracy? Who needs it? We’ve got children and childish judges to tell us what’s best for us.
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