Jubilee heads to the Federal Court over alleged climate reporting failures

Jubilee Australia Research Centre Ltd (Jubilee) have commenced proceedings against Export Finance Australia (EFA) and the Northern Australia Infrastructure Facility (NAIF) alleging contraventions by those entities of their environmental reporting obligations under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The claim, which was filed by Equity Generation Lawyers on behalf of their client Jubilee in the Federal Court of Australia on 18 July 2023, is the most recent in a string of attempts by environmental and human rights groups to seek to rely on and enforce federal environmental law in the courts in novel ways. The claim also comes against the backdrop of major pending reforms to the EPBC Act, following the Labour Government’s commitment to reform the Act in line with the recommendations of the Samuel review.

The parties

Founded in 2001, Jubilee is engaged in research and advocacy directed to the promotion of economic justice for communities in the Asia-Pacific region and accountability for Australian corporations and government agencies operating there. On its website, Jubilee calls itself the preeminent civil society watchdog of the EFA, seeking to lead a push to make the EFA adopt more appropriate social and environmental policies in its financial support of Australian corporations operating overseas.

EFA is Australia’s export credit agency. It is a corporate Commonwealth entity for the purpose of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), whose function is to facilitate and encourage Australian export trade, including by providing insurance and financial services. NAIF is a development financier to infrastructure projects in the Northern Territory, Queensland, Western Australia and the Australian Indian Ocean Territories. NAIF is likewise a corporate Commonwealth entity under the PGPA Act.

The claim also names the Chairs of EFA and NAIF as representatives for their respective Boards as Respondents.

Jubilee’s claims

As corporate Commonwealth entities, EFA and NAIF are required to prepare and provide to their respective responsible Ministers, for presentation to Parliament, an annual report on their activities during each reporting period.

Annual reporting is also subject to a number of specific requirements set out in the EPBC Act. In particular, section 516A(6) provides that annual reports of corporate Commonwealth entities must:

1. include a report on how the activities of, and the administration (if any) of legislation by, the reporter during the period accorded with the principles of ecologically sustainable development (ESD);
2. identify how the outcomes (if any) specified for the reporter in an Appropriations Act relating to the period contribute to ESD;
3. document the effect of the reporter's activities on the environment;
4. identify any measures the reporter is taking to minimise the impact of activities by the reporter on the environment; and
5. identify the mechanisms (if any) for reviewing and increasing the effectiveness of those measures.

Jubilee alleges that both EFA and NAIF failed to comply in certain respects with the above reporting obligations by inadequately disclosing information in recent annual reports, including as to what Jubilee alleges is the true effect of their financing activities on communities and the environment. Under the EPBC Act, a reporter’s “activities” include developing and implementing policies, plans, programs and legislations, as well as its operations.

Although the claims have not yet been made publicly available, Equity Generation Lawyers has said that they are seeking to compel both agencies to comply with their reporting obligations.

What next?

Having only recently been filed, the proceedings will shortly be listed for a first case management hearing for the Court to make orders for the future conduct of the proceedings.

In bringing the proceedings, Jubilee hopes to compel EFA and NAIF as federal government agencies to fully disclose the environmental impacts of the projects they subsidise, including new fossil fuel projects. According to a statement made by Dr Luke Fletcher, Executive Director of Jubilee, the claim cites a number of projects including Senex Energy’s fracking project in the Surat Basin, the Wiggins Island Coal Export Terminal and the Olive Downs Coal Project. Jubilee hopes to enhance the standard of public reporting by government agencies and departments as to the impacts of their activities on communities and the environment.

With the commencement of this most recent claim, once again we are seeing environmental and human rights groups scouring the provisions of the EPBC Act to seek remedies from the courts. While in this case Jubilee seeks to enhance climate reporting standards, many other cases have been used as attempts to prevent emissions-intensive projects from being approved, to set aside existing approvals, or to stall their progress.

The action follows a number of novel claims in recent years including the ultimately unsuccessful class action (led by the lead applicant Ms Sharma) to have the Federal Court find that the Minister for the Environment owed a duty of care to avoid causing injury to young people while exercising her powers to approve a new coal project. It also follows 19 separate applications brought by the Environmental Council of Central Queensland in respect of pending coal and gas projects seeking reconsideration by the Environment Minister of past controlled action decisions. The Minister’s refusal to reconsider two of those decisions in light of climate change impacts is now the subject of judicial review proceedings in the Federal Court.

In addition to litigation, developers and resources companies can soon expect to be facing more stringent environmental approval requirements once the new environmental laws come into force, likely in early 2024. Along with a series of new National Environmental Standards which will cover all major aspects of the approvals process, the Act will also bring a new federal Environment Protection Agency to monitor and enforce statutory compliance.