Pic: Doongmabulla Springs, near the site of Adani’s proposed Carmichael coal mine

By Brendan Sydes

Bill Shorten’s statement last week that Adani’s proposed Galilee Basin mega coal mine would ‘absolutely not’ receive Labor’s support if it didn’t stack up commercially or environmentally gave the clearest indication yet that the ALP may be shifting its position on the controversial mine.

Significantly, Shorten’s remark came in answer to a question following a speech where the opposition leader said, “Any political party with an ounce of character will go to the people at the next election with a proper economic and environmental recognition of the reality of climate change…a proper demonstration that we have the courage to do what has to be done, even if that might be politically difficult.”

Until now the ALP has sought to navigate a complex middle road on Adani – neither for or against the project, which would be the biggest coal mine ever dug in Australia and would add a massive amount of climate pollution to the global atmosphere once the coal is burnt.

Shorten’s shift immediately prompted people to ask if and how the ALP could deliver on a promise to stop Adani and what if any legal pathway exist to stop the mine.

There are ample historical examples of incoming federal governments finding legal pathways to implement election commitments to protect environmental values.

The Whitlam government used its power to regulate exports to require an environmental impact assessment of sand mining and Fraser Island and eventually the combination of the Customs Act and new environmental laws led to the end of sand mining on the island.

The Hawke government famously intervened to prevent the Franklin Dam proceeding in Tasmania, with the subsequent High Court case confirming the breadth of Commonwealth legislative powers to intervene in areas hitherto thought to be solely the province of the States.

The Gillard government (when the current shadow environment Minister, Tony Burke, held the environment portfolio) intervened to introduce a permanent ban on super trawlers in Australian waters.

In the case of the Adani mine, suspending or cancelling approvals already granted under legislation is not straightforward, but pathways do exist.

Last year we wrote to the current Federal Environment Minister, Josh Frydenberg, on behalf of renowned coral scientist Dr Charlie Veron, asking the minister to use his power under section 145 of the Act to revoke an approval for Adani’s mine on the basis of new information about the impact of climate change on the Great Barrier Reef.

These provisions are complex and rarely used, so interpreting them and working out how they might be employed by a future Environment Minister to stop a project like the Adani mine is not straightforward.

From a legal perspective, it may be unwise for the ALP to be too specific in its commitment to use these powers. A very specific election commitment may be viewed as having brought a ‘closed mind’ to a matter of legislative discretion and may leave the decision vulnerable to future legal challenge.

It’s worth noting that Adani itself has asked the federal government to intervene with legislative approval of its mine, so it would be hypocritical of the company to suggest that Parliament could not intervene to stop the mine going ahead if that was the will of the Australian people.

So it does appear that with sufficient political resolve and public pressure, a legal pathway could be found to stop the Adani mine.

But expectations of a future government should not be limited to revisiting approvals under environment protection laws – the focus here should be on the depth of the political commitment and the broader expression of resolve, not just on Adani, but in relation to the whole question of coal exports.

The issue here is not just Adani but coal exports. Let’s start with prohibiting coal exports from the Galilee Basin. As the Fraser Island example demonstrates, the Commonwealth government clearly has the power to stop mining exports to achieve environmental protection goals.

We already regulate uranium exports (under an admittedly flawed regime) and the Turnbull government last year moved to control gas exports using the same powers to protect the national interest.

So there is a clear legal pathway, not just to stop Adani, but to take action to stop the exploitation of more coal reserves in the Galilee Basin and elsewhere.  This is the commitment we should seek from a future government.

As Mr Shorten himself said, “You can’t be serious about climate change and energy and have a bet every which way.”

See also: Labor grappling with how to oppose Adani mine (Australian Financial Review)