Lawyer's view on climate science

Legal analysis

It’s always interesting for me when a lawyer, trained and experienced in separating fact from fiction, turns his attention to climate science.

Put the kind of sloppy generalisations, blatant political interference, fudged data and concealed evidence that underpins the entire climate “Consensus” in front of a court of law and it would be demolished in seconds. Unfortunately, I cannot see a way of ensuring that could happen. The next best thing is to get a lawyer’s perspective, and that’s what we have here:

A review of the peer-edited literature reveals a systematic tendency of the climate establishment to engage in a variety of stylized rhetorical techniques that seem to oversell what is actually known about climate change while concealing fundamental uncertainties and open questions regarding many of the key processes involved in climate change. Fundamental open questions include not only the size but the direction of feedback effects that are responsible for the bulk of the temperature increase predicted to result from atmospheric greenhouse gas increases: while climate models all presume that such feedback effects are on balance strongly positive, more and more peer-edited scientific papers seem to suggest that feedback effects may be small or even negative.

The cross-examination conducted in this paper reveals many additional areas where the peer-edited literature seems to conflict with the picture painted by establishment climate science, ranging from the magnitude of 20th century surface temperature increases and their relation to past temperatures; the possibility that inherent variability in the earth’s non-linear climate system, and not increases in CO2, may explain observed late 20th century warming; the ability of climate models to actually explain past temperatures; and, finally, substantial doubt about the methodological validity of models used to make highly publicized predictions of global warming impacts such as species loss.

Insofar as establishment climate science has glossed over and minimized such fundamental questions and uncertainties in climate science, it has created widespread misimpressions that have serious consequences for optimal policy design.

Read it here. (h/t Hockey Schtick)

Legal advice sinks bloggers' Finkelsteinian Nightmare

Part of UNSW

Scouring the internet for opinions on the constitutional powers of the Commonwealth to regulate the media in the manner proposed in the Finkelstein report, I came across a submission to Finkelstein’s own inquiry from the Gilbert + Tobin Centre of Public Law, part of the University of New South Wales (website here).

The submission is dated 14 November 2011, and does not appear in the official list of submissions (as far as I can see, let me know if it is there) and deals precisely with the issue in question: namely, to what extent the Commonwealth has the power to regulate traditional and new media.

One question that must be asked immediately is why the submission is omitted from the list on the Inquiry web site. It was sourced via the Gilbert + Tobin Centre’s own index of submissions. There may be a reasonable explanation for this, but in the interests of transparency it should be stated.

UPDATE: The Inquiry responded to my email about this, stating:

“It is an oversight that the submission has not been published.  The submission will be published shortly.”

The submission now appears on the consultation page.

Here are a few relevant extracts (my emphasis):

The Australian Constitution does not confer upon the Commonwealth any general power to regulate the all types of news media. Instead, the degree to which the Commonwealth can regulate in this area varies across mediums. 


The Commonwealth has no direct head of legislative power with respect to the print media. However, the Commonwealth may nonetheless regulate the print media by virtue of indirect heads of power such as those relating to trade and commerce, taxation, corporations, external affairs and the Territories. The most significant of these is the corporations power – its potential application to news media regulation is expanded on below. In addition, the Commonwealth may regulate print media where doing so is incidental to the exercise of a direct head of power – for example, it can limit ownership and control of print media as a condition of radio and television broadcasting licenses issued by virtue of section 51(v).


The extent of Commonwealth power over matters concerning the internet, including journalism that is published online, is yet to be considered by the High Court. However, it is likely that the internet falls within the scope of section 51(v) either as a ‘telephonic’ or ‘other like service’, and that federal regulation could validly extend to the means of online communication, such as infrastructure (eg, the installation of fibre optic cables) and the conduct of internet service providers (ISPs). Other heads of power, such as those mentioned above, may also support Commonwealth regulation of online content. The potential for this is explored further below. 

So far, then, the Commonwealth has the power to regular print media indirectly, through the corporations power, or incidentally to the postal and telegraphic power. It also appears the Commonwealth may regulate internet and online media through the means of communication. However, the following paragraph reveals that Finkelstein’s desire to regulate every blogger in Australia with more than 15,000 hits is beyond the powers of the Commonwealth:

To the extent that online journalism is carried out by constitutional corporations, it will be open to federal regulation via the corporations power in the same way the print journalism is. However, the extent of federal power is less certain where the online content is published by an entity that is not a constitutional corporation. A large number of individuals and bodies fall into this category, including any news outlets that operate as sole traders or partnerships, individual bloggers, and individuals posting on social media sites such as Facebook and Twitter. 

So where an organisation is a corporation, it can be regulated under the corporations power, but apart from that, there is no power to regulate their activities.

The extent of Commonwealth power to regulate online journalism of this nature is unclear. As noted above, it seems likely that section 51(v) authorises regulation of ISPs as bodies responsible for the transmission of online content. However, on current authority, it is doubtful that it extends to the regulation of the creators of content such as individual bloggers. Where news or other content appears online through a service such as Facebook which is controlled by a foreign or for-profit corporation, this could be regulated under the corporations power. 

“Doubtful that it extends to the regulation of the creators of content such as individual bloggers” – this means that if Finkelstein’s regime were to be enacted, it would have to place the burden on ISPs to censor content from blogs which fell foul of the regulatory framework, since there would be no power to act against the blogs themselves (unless they were corporations, and let’s face it, few are).

Furthermore, the submission concludes:

The Commonwealth has extensive, unrealised potential to further regulate the Australian media, including the print media. The corporations power in particular provides a basis upon which to establish new regulation in this field. However, such regulation is subject to the limits of existing powers. In particular, the corporations power only extends to entities that are incorporated and operate as a financial, trading or foreign corporation. In the circumstances, it must be recognised that, although it has extensive power, the Commonwealth does not possess the legislative power to comprehensively regulate the media in Australia. The only means of achieving this would be via cooperation with the States. 

And with New South Wales, Victoria, Western Australia and Queensland (any day now) controlled by Coalition state governments, they can kiss that idea goodbye.

Any such federal legislation presuming to regulate individual bloggers who did not fall within the corporations power would be ruled unlawful in any court challenge, and it appears that Finkelstein’s “tenuous connection with Australia” test is little more than fantasy.

Furthermore, Finkelstein’s “finger in the air” figure of 15,000 hits a year is meaningless in the above context, since the advice above points out that regulatory legality is dependent upon the legal status of the entity (corporation or not) rather than the size of its internet readership.

Surprisingly, nowhere in the report’s 400-odd pages does it acknowledge the vast constitutional mountain the regime would have to climb in order to be lawful against bloggers, which is set out clearly in the above submission. Maybe someone should let His Lordship know.

The submission (PDF) is available here (G + T site) or backup here (ACM).

Law firm tells government we need more laws to tackle climate change

Yet more climate regulation?

Ask a law firm to advise the government on anything, and the answer will invariably be: we need more laws, which inevitably means more lawyers.

And so it is with the latest announcement from the Department of Climate Change, which has released a report from law firm Maddocks on the “threats” to infrastructure from “climate change”, as The Australian reports:

LAWS governing key infrastructure assets such as airports, ports, roads, buildings and the electricity network should be tightened to cope with potential catastrophic events caused by climate change.

A report to be released by the federal government today warns that risks to the nation’s infrastructure “cannot be overstated” and intrusive regulations may be justified where key assets are vulnerable to catastrophic weather events.

The review was prompted by CSIRO predictions that the nation will suffer longer dry spells interspersed with increases in the intensity of wet spells.

More days of higher fire danger are predicted and forecast sea level rises will make coastal communities more vulnerable to storm surges.

The report by Maddocks Solicitors says liability laws could be used in the transport industry as “motivation” for the industry to adapt to climate change.

Rules governing airport master plans could be changed to take into account potential climate change events and the nation’s building codes altered to take into account extreme events.

The report says existing assets are more vulnerable than new infrastructure and governments may have to consider “retreat” strategies.

“This will require consideration of property rights, constitutional provisions, insurance, risk sharing, government funding and new regulatory provisions,” the report says.

The report also calls for the government to examine setting up a new national body to co-ordinate regulations aimed at climate change adaptation, with representatives from federal,state and local government. (source)

This proposal appears to have the potential to open the floodgates to yet more control and interference from government concerning areas of our lives in which government has no place, all justified by the overarching imperative to “tackle climate change”.

“Intrusive regulations may be justified”? An excuse for draconian legislation.

“Liability laws” used as “motivation”? Sounds more like a threat – in other words, widening the scope of liability to include losses suffered by third parties arising from an organisation’s failure to implement the government-decreed climate risk mitigation strategies.

“A consideration of property rights”? Using the planning regulatory regime to force property owners to take certain actions (or face the consequences).

“Retreat” strategies? Ordering people to leave property where some bureaucrat says so, for example due to projected sea level rise.

And the phrase “New regulatory provisions” to a government addicted to regulation (like Labor) is akin to giving Dracula the keys to the blood bank.

Not to mention the millions of dollars wasted annually on yet another “national body” on climate change.

So not only will our economy be slugged with a carbon tax which will achieve nothing, it will also, if the recommendations of this report are implemented, be hamstrung with miles and miles of additional climate-based red tape and bureaucracy, forcing businesses to prepare for events predicted by the cracked crystal ball of notoriously unreliable climate models.

See the Department of Climate Change page here, and the full report (170+ pages) is here (PDF).

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