Jubilee v Export Finance Australia & NAIF

About

Federal Court of Australia | NSD724/2023

Equity Generation Lawyers represents Jubilee Australia, a human rights and environmental organisation, in a Federal Court of Australia action seeking to compel Federal government agencies that subsidise fossil fuel projects to disclose the full environmental effects of those activities.

The claim was filed on 18 July 2023.

Who the claim is against

The claim was filed against Australia’s export credit agency, Export Finance Australia (EFA), and the Northern Australia Infrastructure Facility (NAIF), a A$7bn fund for infrastructure in northern Australia.

Prior to filing both EFA and NAIF provided taxpayer-subsidised financial support to fossil fuel projects that, without subsidised funding, may not have gone ahead.

The claim names the Chairperson of each agency as a representative for the relevant Board who, in turn, must ensure the reporting requirements below are met.

What the claim alleges

The action alleges certain contraventions of section 516A(6) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) that require government agencies and departments to include the following information in their annual reports:

  1. How their activities accord with the principles of ecologically sustainable development – including the precautionary principle and the principle of intergenerational equity;
  2. The effect of their activities on the environment;
  3. The measures they are taking to minimise the impact of their activities on the environment;
  4. The mechanisms for reviewing and increasing the effectiveness of measures to minimise the impact of the activities on the environment.

The definition of activities includes developing and implementing policies, plans, programs and legislation.

Jubilee Australia alleged that EFA and NAIF failed to adequately disclose the information above in its last three annual reports, including failing to disclose the true effect of its financing activities on the environment. Since the claim was filed, EFA and NAIF have published annual reports for the 2022/2023 and 2023/2024 financial years.

The process

The first case management hearing took place on 12 December 2023. Subsequent orders were made that set out a timetable for Jubilee Australia to apply for leave to amend the pleadings and consider the possibility of the respondents opposing the new pleadings.

Jubilee Australia elected to discontinue proceedings against EFA and its former Chair because it considered EFA’s 2022/2023 annual report demonstrated overall compliance with its legal obligations to disclose the impacts on the environment of its activities, including its financing activities. You can see Jubilee’s statement on the resolution of the proceeding here.

Since May 2024, Jubilee and NAIF have engaged in correspondence, and in October 2024, NAIF published a further annual report. Because the contents of NAIF’s 2023/24 annual report disclosed the environmental impacts of the projects it funded the matter was resolved in January 2025.

Jubilee Australia’s legal representatives

Ron Merkel SC and Natasha Hammond were counsel for Jubilee Australia.