Extinction Rebellion to test little-known defence

  Last updated October 9, 2019 at 3:52 pm


With climate inaction protests across Australia this week, a unique “emergency” defence could be used if protesters are arrested.

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Extinction Rebellion protestors block the streets of Brisbane. Credit: Chris Hyde/Getty Images

Why This Matters: Political climate inaction needs to be overcome.

Led by international environmental group Extinction Rebellion, climate inaction protests are planned across Australia this week.

Major cities are expected to be interupted with flash mobs, sit ins and marches to block traffic. Extinction Rebellion says that peaceful civil disobedience is an important social and political strategy and many are expected to be arrested.

The group has three demands. The first, is that the government should declare a climate emergency. The second is that by 2025, governments should decarbonise the economy and finally, scientists and citizens should work hand-in-hand to inform environmental policy making.

QUT environment law researcher Rowena Maguire says many of the protesters were willing to risk arrest and conviction to make their point. And, once they get to the courtroom, some will test the ‘extraordinary emergency’ defence.

“Queensland Police arrested 72 activists during the August climate strike for offences including obstructing traffic and breach of the peace,” she says.

“When defending these charges in 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.”

Breaking the law is defensible because there is a climate emergency

Maguire says that in the context of climate inaction protests, the argument is that breaking laws, such as breaches of the peace, is defensible because there is a climate emergency.

Also: Who will defend the defenders?

The defence has been used before. From its origins in justifying cannabalism in extreme cases, it is now more commonly used in the case of a life or death scenario, such as breaking a road rule to save a life.

“Dr Nicole Rogers, of Southern Cross University, examined the extraordinary emergency defence in her new book Law, Fiction and Activism in a Time of Climate Change.

“The relevant question for the court when considering the defence is ‘what is reasonable?’

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Extinction Rebellion protestors in London. Credit: Leon Neal/Getty Images

“When determining ‘reasonability’ she suggested the court needs to take into account the structures that limit what an ordinary citizen can do regarding the climate crisis.”

The defence has worked before – just not in Australia. One founder of Extinction Rebellion was acquited of a graffitti damage charge with the jury willing to accept their arguement that climate change justified their actions.

Framing climate crisis as an emergency could be problematic

However, Maguire says that framing the climate crisis as an ‘emergency’, however, was problematic legally and morally.

“Legally, declaring a climate emergency has proved to be largely political rhetoric to date and has not resulted in climate action,” she says.

“A range of academics have also raised moral concerns around the emergency framing because they are concerned it could justify geoengineering-type climate solutions instead of lowering CO2 emissions.

Maguire says that ordinary Australian citizens were limited in what they could do regarding the climate action.

Also: Sydney declares a climate emergency – here’s what that means

The Australian Constitution does not contain a duty requiring our government to safeguard, protect and improve the living environment as other countries have,” she says.

“In the Netherlands the Urgenda claim was successful when citizens took their government to court on these grounds.

“Australians have very limited human right protections at the Commonwealth level.”

“So far, climate litigation has focused on administrative appeals questioning the validity of the decision to approve new coal mines which has seen more success in New South Wales courts than in Queensland courts.”

“A second litigation pathway focuses on the money and is based in actions brought by shareholders against corporations for failing to disclose climate risks.

“These cases draw upon the influential Hutley opinion which found that directors who did not properly manage climate risks could be held liable for breaching their legal duty of care and diligence.”

However, Maquire says that isn’t going to deter climate inaction protestors.

“Feelings of hopelessness and despair around the impending climate crisis mean people are willing to get arrested and cop a criminal record to urgently bring climate action onto the political agenda.”

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