Jubilee v NAIF

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 is against the Northern Australia Infrastructure Facility (NAIF), a $7bn fund for infrastructure in northern Australia.

NAIF provides taxpayer-subsidised financial support to fossil fuel projects that may not otherwise go ahead.

The claim names a Chair of NAIF as a representative for the Board who, in turn, must ensure the reporting requirements below are met.

The claim was also initially filed against Export Finance Australia (EFA) and its former Chair. Jubilee Australia elected to discontinue proceedings against those parties because it considers EFA’s latest annual report demonstrates overall compliance with its legal obligations to disclose the impacts on the environment of its activities, including its financing activities.

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 alleges that 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, NAIF has published its annual report for the 2022/2023 financial year.

Next steps

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.

An application by Jubilee Australia to amend the pleadings was filed on 31 May 2024. Should NAIF oppose this, both parties will have the opportunity to present evidence, with a hearing in approximately September 2024.

Jubilee Australia’s legal representatives

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