iMAGE: © Dept of the Prime Minister and Cabinet14 AusTRAlIAN QuARTeRlY OCT–DEC 2017
such abuse, including:- the courts’ powers to strike out
frivolous and vexatious proceedings,
and award costs against frivolous and
vexatious litigants; - in Queensland, the Government’s
power under the Vexatious
Proceedings Act 2005 (Qld) to apply to
a court for a vexatious proceedings
order to prohibit a person from
continuing or instituting proceedings
of a particular type; and - the paramount duty on legal practi-
tioners to the court and the adminis-
tration of justice.
unfortunately, the use of the term
‘lawfare’ by industry lobbyists and politi-
cians appears not to be for commercial
competitors or the adequacy of existing
safeguards, but rather reserved for
landholders and communities that have
the temerity to access their rights to a
healthy environment through the court
system.^3 The solution advocated to this
‘problem’ is the removal of community
objection and appeal rights, which
risks a far more corrosive effect on the
system.
To be clear, community objection
rights are the rights of you, me and
those around us, to challenge decisions
which affect our shared environment -
our clean air and water, our safe climate
and our native wildlife, and resources
that our government holds in trust for
our common benefit.
Not only are objection rights an
Maintaining a healthy systeM
The right to challenge the merits of a government decision in court:
a) safeguards against corruption;^5
b) ensures greater transparency and accountability within the decision-making process;^6
c) ‘facilitates the rigorous analysis that is fundamental to the making of sound decisions’;^7
d) ‘gives a level of confidence to members of the public that the decision has been reached
through a process which has openly examined and scrutinised all of the available
evidence - whether or not the result is universally accepted’;^8
e) ensures the process of environmental planning and assessment is effective;^9
f ) allows multiple views and concerns to be expressed and ‘provide[s] a forum where
collective rights and concerns can be weighed against the rights and concerns of the
individual’;^10
g) recognises that third parties can bring detailed local or specialist knowledge, not
necessarily held by the designated decision maker;^11
h) allows for the development of environmental jurisprudence, clarifying the meaning of
legislation;^12
i) enhances the quality of decision-making, including the quality of reasons for decisions;^13
and
j) focuses attention on the accuracy and quality of policy documents, guidelines and
legislative instruments and highlight problems that should be addressed by law and
policy reform.^14unDER-MInInG PuBLIC TRuST – ThE RhETORIC Of LAwfARE