Bar Association & Law Society Defend Preston

Filed under Environment, Legal, News ~ by press on  14 Feb 2019

The New South Wales Bar Association and The Law Society of NSW are both concerned about recent claims in the media of judicial overreach in the judgment of Preston CJ in Gloucester Resources Ltd v Minister for Planning.

Following the decision by Chief Justice Brian Preston in Gloucester Resources Ltd appeal, before the Land and Environment Court, having been refused development consent for a coal mine by the Minister for Planning, several politicians and Australian media outlets attacked the Judge.

In assessing the application, amongst other matters, his Honour took into account the impact the mine would have on climate change.

This has been reported in the media as ‘a worrying example of judicial overreach’ and ‘against the national interest,” said The President of the NSW Bar Association Tim Game SC.

The Australian in an editorial said “The “wrong time” decision used to block development of the Rocky Hill coking coal mine in NSW is a worrying example of judicial overreach…” while The Daily Telegraph wrote: “The Chief Judge of the NSW Land and Environment Court who blocked a coal mine due to factors including climate change founded the group of activist lawyers for whom he last week ruled in favour.”

Whilst appropriately eschewing an assertion of bias, one newspaper nevertheless referred to the Chief Judge as having co-founded the Environmental Defenders Office (which represented one of the parties in proceedings) and made reference to extra-judicial papers the Chief Judge has given extracting parts of his speeches that might give the impression that his Honour was biased in relation to the subject of climate change,” said Mr Game SC.

That is an attack on the character of the Chief Judge and it is troubling.

The Chief Judge’s remarkable and extensive career within the land and environment jurisdiction highlights his commitment, expertise and suitability as a judicial officer of the Court. It is to be applauded. If there was any concern about judicial bias, it was open to the parties to raise that and ask the judge to recuse himself as the Attorney General Mark Speakman SC has already noted.”

Assessing such a development application requires the court to take into account many factors,  including environmental impact. The Chief Judge, referring to relevant legislative provisions, planning instruments and case law, gave detailed reasons as to why he was obliged to consider climate change in that environmental assessment. He would have been in error had he failed to do so.”

Expert scientific evidence of the impact the mine would have on climate change was before the court and both sides made submissions as to its relevance and weight. In a 700 paragraph judgment, climate change was one factor (albeit a significant one) amongst many factors the Chief Judge considered,”Mr Game SC said.

Further in the long and detailed judgment, his Honour refused the application for its significant and unacceptable planning, visual and social impacts. The green-house gas emissions provided a further reason for refusal.”

Law Society Concerned

The Law Society of NSW, which represents the interests of the state’s 34,000 solicitors, has voiced its concerns about media criticism of the Chief Judge of the Land and Environment Court of NSW.

NSW Law Society President, Elizabeth Espinosa, said one of the legitimate roles of a legal association is to be defender of the integrity of the independence of judicial officers and the courts.

This, the Law Society President said, is “fundamental to a democratic civil society”.

Ms Espinosa today said she found the media claims of ‘judicial overreach’ in relation to a recent and extensive judgment by the Honourable Chief Judge Brian Preston SC, very concerning.

It is for this reason, I believe it is important to speak out on behalf of the state’s solicitors and express our support for His Honour,” she said.

His Honour has held the position of Chief Judge of the Land and Environment Court since 2005 and his remarkable and long career as a judicial officer of the court, notably within the land and environment jurisdiction, has been characterised by his commitment, skill and integrity.

His Honour’s commitment to the administration of justice in NSW is immeasurable.

Like many others, we see this the recent media criticism as an attack on both the integrity and character of the Chief Judge and an attack on the independence of the judiciary.



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