Can Local governments act on the climate emergency legally?
One argument sometimes used by councillors, CEOs and staff wishing to opposed to emergency action on climate change is to question the legal mandate for such action. This usually takes two basics forms by questioning:
One argument sometimes used by councillors, CEOs and staff wishing to opposed to emergency action on climate change is to question the legal mandate for such action. This usually takes two basics forms by questioning:
- whether council have the legal right or responsibility to act in this space
- emergency declarations are the responsibility of higher levels of Government
Do councils have the legal right and responsibility to act on climate change?
The short answer is yes. Most enabling legislation for councils require councils to act in the best interest of and / or for the wellbeing of their community, which provides the mandate for councils to act on global warming and other issues such as gambling or poverty that negatively effects their community.
In this sense if a council decides that "taking significant action on climate change" is the best or most necessary thing a council can do for is current or future community then they "can" do it.
However given the current future impacts what is increasingly clear is councils and councillors must act on global warming or they will be failing their legal responsibilities.
We look at each state legislation below and highlight relevant clauses that relate to acting on the climate emergency.
The short answer is yes. Most enabling legislation for councils require councils to act in the best interest of and / or for the wellbeing of their community, which provides the mandate for councils to act on global warming and other issues such as gambling or poverty that negatively effects their community.
In this sense if a council decides that "taking significant action on climate change" is the best or most necessary thing a council can do for is current or future community then they "can" do it.
However given the current future impacts what is increasingly clear is councils and councillors must act on global warming or they will be failing their legal responsibilities.
We look at each state legislation below and highlight relevant clauses that relate to acting on the climate emergency.
What does the legal profession say
Top legal firms and lawyers, such as Sarah Barker, the Global Head of Climate Risk Governance at international law firm Minter Ellison, are advising Councils that:
“There’s a financial and legal imperative to act and act now - across all [council] business, every decision that’s made.”, and
“You can’t just declare an emergency and not change the way things happen.”
Councils, Councillors, CEOs and senior staff risk future legal action if they choose to ignore this type of advice.
CACE's Bryony Edwards discusses council management of legal risks around the climate emergency in her recent blog post here.
Top legal firms and lawyers, such as Sarah Barker, the Global Head of Climate Risk Governance at international law firm Minter Ellison, are advising Councils that:
“There’s a financial and legal imperative to act and act now - across all [council] business, every decision that’s made.”, and
“You can’t just declare an emergency and not change the way things happen.”
Councils, Councillors, CEOs and senior staff risk future legal action if they choose to ignore this type of advice.
CACE's Bryony Edwards discusses council management of legal risks around the climate emergency in her recent blog post here.
Can a council declare a climate emergency and act in emergency mode
The short answer is yes. Depending where you are in the world, a council may or may not be able to formally declare an emergency as defined by a state or national law.
In the Australian the power to declare a formal states of emergency rests with state governments.
Consequently climate emergency declarations by councils in Australia are not formal declarations in law but are formal declaration in the form of a motion of council designed to:
1. highlight the extreme threat that global warming posses to the public
2. force action by higher levels of government and highlight their current failure to act in a way that could avert a catastrophe (e.g. suicidal targets of Net zero by 2050 target or support of coal and gas etc.)
3. drive significant action by the council itself in the areas of mitigation, resilience and advocacy.
4. provide the narrative framing for mitigation, resilience and advocacy action by local governments (or other organisations declaring emergencies e.g. schools, businesses etc.)
Most enabling legislation for councils states as a formal requirement of council to act in the best interest of and / or for the well being of their community, which provides the mandate for councils to act on global warming and other issues such as gambling or poverty that negatively effects their community.
In this sense if a council decides that "declaring a climate emergency" it the best thing a council can do for the future of their community then they "can" do it.
The short answer is yes. Depending where you are in the world, a council may or may not be able to formally declare an emergency as defined by a state or national law.
In the Australian the power to declare a formal states of emergency rests with state governments.
Consequently climate emergency declarations by councils in Australia are not formal declarations in law but are formal declaration in the form of a motion of council designed to:
1. highlight the extreme threat that global warming posses to the public
2. force action by higher levels of government and highlight their current failure to act in a way that could avert a catastrophe (e.g. suicidal targets of Net zero by 2050 target or support of coal and gas etc.)
3. drive significant action by the council itself in the areas of mitigation, resilience and advocacy.
4. provide the narrative framing for mitigation, resilience and advocacy action by local governments (or other organisations declaring emergencies e.g. schools, businesses etc.)
Most enabling legislation for councils states as a formal requirement of council to act in the best interest of and / or for the well being of their community, which provides the mandate for councils to act on global warming and other issues such as gambling or poverty that negatively effects their community.
In this sense if a council decides that "declaring a climate emergency" it the best thing a council can do for the future of their community then they "can" do it.
Will State or Federal governments seek to stop councils.
Some councillors have avoided declaring a climate emergency because they are worried about the action of their state government.
It is very unlikely a state or even federal government will challenge a Climate Emergency Declaration or acknowledgement . By the end of 2020 no declaration or acknowledgement has yet been challenged that we know of out of the 1800 plus declarations made.
The only likely challenge from a state or national government is when a council seeks to enter into a full emergency mode.
Entering full emergency mode occurs when a council:
Entering a full emergency move as the second and ultimately most important step a council can take in responding to the climate emergency. Entering and emergency mobilisation allows councils to model and demonstrate the necessary level of action and commitment needed by state and federal governments if we are to have any chance of reverse global warming at this late stage.
If a state or national government disagrees with the council action by refusing to pass the councils strategic / council plan or an emergency budget or even seeks to sack the council, this is a good thing as it will allow climate emergency campaigners to focus on higher levels of government and allows us to create and use the narrative that a state or federal government is deliberately halting emergency action on global warming (a narrative that already exists in Australia in relation to our Federal Liberal / national Coalition government and their undermining of international agreements and lack of action on global warming).
There is even the potential to fight any state or federal government in court overs a council right and even responsibility under law to undertake an emergency level response to global warming.
A court action would provide the opportunity to prove in court that global warming is a threat to our council districts and communities and that councils in fact have do a legal obligation to act.
Some councillors have avoided declaring a climate emergency because they are worried about the action of their state government.
It is very unlikely a state or even federal government will challenge a Climate Emergency Declaration or acknowledgement . By the end of 2020 no declaration or acknowledgement has yet been challenged that we know of out of the 1800 plus declarations made.
The only likely challenge from a state or national government is when a council seeks to enter into a full emergency mode.
Entering full emergency mode occurs when a council:
- incorporates a full mobilisation response in their strategic / council plan as their number one priority outside of delivery of their core services, and
- passes budgets focusing significant resources to mitigation, resilience, and advocacy.
Entering a full emergency move as the second and ultimately most important step a council can take in responding to the climate emergency. Entering and emergency mobilisation allows councils to model and demonstrate the necessary level of action and commitment needed by state and federal governments if we are to have any chance of reverse global warming at this late stage.
If a state or national government disagrees with the council action by refusing to pass the councils strategic / council plan or an emergency budget or even seeks to sack the council, this is a good thing as it will allow climate emergency campaigners to focus on higher levels of government and allows us to create and use the narrative that a state or federal government is deliberately halting emergency action on global warming (a narrative that already exists in Australia in relation to our Federal Liberal / national Coalition government and their undermining of international agreements and lack of action on global warming).
There is even the potential to fight any state or federal government in court overs a council right and even responsibility under law to undertake an emergency level response to global warming.
A court action would provide the opportunity to prove in court that global warming is a threat to our council districts and communities and that councils in fact have do a legal obligation to act.
State Legistaltion
This section seek to pull out elements of the relevant state legislation to a council can use to justify taking emergency action on global warming.
Interestingly Victoria, NSW, Queensland and Western Australia amended their Local Government acts to include laws that defined specific actions and powers in relation to the COVID 19 emergency. Similar amendments could be made in relation to the climate emergency if needed.
Interestingly Victoria, NSW, Queensland and Western Australia amended their Local Government acts to include laws that defined specific actions and powers in relation to the COVID 19 emergency. Similar amendments could be made in relation to the climate emergency if needed.
Victoria
The new 2020 Victorian Local Government Act is unique in Australia in that the legislation explicitly states councils must act to undertake climate mitigation and climate risk management activities while preforming their primary objective.
"the economic, social and environmental sustainability of the municipal district, including mitigation and planning for climate change risks, is to be promoted" - section 9.2.c.
Other parts of the legislation are also relevant in mandating action on global warming including the defined primary objective of a council and guiding principles.
The primary objective of a Council is "to provide good governance in its municipal district for the benefit and wellbeing of the municipal community” - section 8.1
This must be done in accordance with a series of principles which include the following as well as the reference to acting on climate change mentioned above:
You can download the legislation here https://www.legislation.vic.gov.au/in-force/acts/local-government-act-2020/003
The new 2020 Victorian Local Government Act is unique in Australia in that the legislation explicitly states councils must act to undertake climate mitigation and climate risk management activities while preforming their primary objective.
"the economic, social and environmental sustainability of the municipal district, including mitigation and planning for climate change risks, is to be promoted" - section 9.2.c.
Other parts of the legislation are also relevant in mandating action on global warming including the defined primary objective of a council and guiding principles.
The primary objective of a Council is "to provide good governance in its municipal district for the benefit and wellbeing of the municipal community” - section 8.1
This must be done in accordance with a series of principles which include the following as well as the reference to acting on climate change mentioned above:
- “priority is to be given to achieving the best outcomes for the municipal community, including future generations;” - section 9.2.b
- “the economic, social and environmental sustainability of the municipal district, including mitigation and planning for climate change risks, is to be promoted;” - section 9.2.c
- “the municipal community is to be engaged in strategic planning and strategic decision making;” - section 9.2.d
- “collaboration with other Councils and Governments and statutory bodies is to be sought” - section 9,2.
- Councils can also “perform a function outside its municipal district”, “If it is necessary to do so” - section 8.4.
You can download the legislation here https://www.legislation.vic.gov.au/in-force/acts/local-government-act-2020/003
NSW
NSW has a range of acts and regulations that councils must adhere to. You can find them at this link https://www.olg.nsw.gov.au/councils/policy-and-legislation/
NSW Local Government Act 1993 requires councils to act in a way the "facilitates local communities that are strong, healthy and prosperous." - section 8.
Councils must also "consider the long term and cumulative effects of actions on future generations." when making decisions - section 8A(1.c).
In relation to financial management "Councils should invest in responsible and sustainable infrastructure for the benefit of the local community." - section 8B(c), and
"Councils should have regard to achieving intergenerational equity, including ensuring the following—(i) policy decisions are made after considering their financial effects on future generations," - section 8B(d).
In relation to strategic planning "Councils should manage risks to the local community or area or to the council effectively and proactively." - section 8C(h))
In terms of freedom of action, "A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law." - Chapter 6 Part 1 section 24.
NSW has a range of acts and regulations that councils must adhere to. You can find them at this link https://www.olg.nsw.gov.au/councils/policy-and-legislation/
NSW Local Government Act 1993 requires councils to act in a way the "facilitates local communities that are strong, healthy and prosperous." - section 8.
Councils must also "consider the long term and cumulative effects of actions on future generations." when making decisions - section 8A(1.c).
In relation to financial management "Councils should invest in responsible and sustainable infrastructure for the benefit of the local community." - section 8B(c), and
"Councils should have regard to achieving intergenerational equity, including ensuring the following—(i) policy decisions are made after considering their financial effects on future generations," - section 8B(d).
In relation to strategic planning "Councils should manage risks to the local community or area or to the council effectively and proactively." - section 8C(h))
In terms of freedom of action, "A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law." - Chapter 6 Part 1 section 24.
Queensland
Under the Queensland Local Government Act "A councillor must represent the current and future interests of the residents of the local government area." - section 12.1
In terms of freedom of action, "A local government has the power to do anything that is necessary or convenient for the good rule and local government of its local government area." - section 9.1, and
"A local government may exercise its powers by cooperating with 1 or more other local, State or Commonwealth governments" - Section 10.1.
Under the guiding principles of the Local Government Act council must implement "sustainable development and management of assets and infrastructure, and delivery of effective services;" - section 4.2.c.
You can view the Queensland local government legislation here www.legislation.qld.gov.au/view/html/inforce/current/act-2009-017
Under the Queensland Local Government Act "A councillor must represent the current and future interests of the residents of the local government area." - section 12.1
In terms of freedom of action, "A local government has the power to do anything that is necessary or convenient for the good rule and local government of its local government area." - section 9.1, and
"A local government may exercise its powers by cooperating with 1 or more other local, State or Commonwealth governments" - Section 10.1.
Under the guiding principles of the Local Government Act council must implement "sustainable development and management of assets and infrastructure, and delivery of effective services;" - section 4.2.c.
You can view the Queensland local government legislation here www.legislation.qld.gov.au/view/html/inforce/current/act-2009-017
Western Australia
Westerns Australian Local Government Act does not outline principles under which the act must be executed. However the following requirement allows councillors to act on the climate emergency. Under the Act a councillor "represents the interests of electors, ratepayers and residents of the district;" section 2.10(a)
The Act states "The council — (a) governs the local government’s affairs; and (b) is responsible for the performance of the local government’s functions" section 2.7.(1)
The legislation is available www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_551_homepage.html
Westerns Australian Local Government Act does not outline principles under which the act must be executed. However the following requirement allows councillors to act on the climate emergency. Under the Act a councillor "represents the interests of electors, ratepayers and residents of the district;" section 2.10(a)
The Act states "The council — (a) governs the local government’s affairs; and (b) is responsible for the performance of the local government’s functions" section 2.7.(1)
The legislation is available www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_551_homepage.html
South Australia
Under the South Australian Local Government Act councils are "to provide for the government and management of its area at the local level" - section 6
Councils must " (a) to act as a representative, informed and responsible decision-maker in the
interests of its community; and
(b) to provide and co-ordinate various public services and facilities and to
develop its community and resources in a socially just and ecologically
sustainable manner; and
(c) to encourage and develop initiatives within its community for improving the
quality of life of the community; and
(d) to represent the interests of its community to the wider community;" - section 6 (a,b,c,d)
The legislation is available here www.legislation.sa.gov.au/lz/c/a/local%20government%20act%201999.aspx
Under the South Australian Local Government Act councils are "to provide for the government and management of its area at the local level" - section 6
Councils must " (a) to act as a representative, informed and responsible decision-maker in the
interests of its community; and
(b) to provide and co-ordinate various public services and facilities and to
develop its community and resources in a socially just and ecologically
sustainable manner; and
(c) to encourage and develop initiatives within its community for improving the
quality of life of the community; and
(d) to represent the interests of its community to the wider community;" - section 6 (a,b,c,d)
The legislation is available here www.legislation.sa.gov.au/lz/c/a/local%20government%20act%201999.aspx
Tasmania
In Tasmania the Local Government Act states
"a council has the following functions:
(a) to provide for the health, safety and welfare of the community;
(b) to represent and promote the interests of the community;
(c) to provide for the peace, order and good government of the municipal area." - section 20(1)
The Act requires a council "In performing its functions, a council is to consult, involve and be accountable to the community." - section 20(2)
In terms of freedom of action "A council may do anything necessary or convenient to perform its functions either within or outside its municipal area" - section 20(3)
Section 20 can be accessed here
Individual councillors must act "act in the best interests of the community" - section 28(1)(b)
The fill legislation is available here www.legislation.tas.gov.au/view/html/inforce/current/act-1993-095
In Tasmania the Local Government Act states
"a council has the following functions:
(a) to provide for the health, safety and welfare of the community;
(b) to represent and promote the interests of the community;
(c) to provide for the peace, order and good government of the municipal area." - section 20(1)
The Act requires a council "In performing its functions, a council is to consult, involve and be accountable to the community." - section 20(2)
In terms of freedom of action "A council may do anything necessary or convenient to perform its functions either within or outside its municipal area" - section 20(3)
Section 20 can be accessed here
Individual councillors must act "act in the best interests of the community" - section 28(1)(b)
The fill legislation is available here www.legislation.tas.gov.au/view/html/inforce/current/act-1993-095
