Biodiversity litigation in Australia: constrained efforts to protect beauty, rich and rare

Australia’s biological diversity is world-renowned, unique, and vulnerable. It faces unprecedented threats from climate change, invasive species, and changing land use. Yet Australia’s laws—including its federal environmental statute, the Environment Protection and Biodiversity Conservation Act 1999 (Cth)—are ill-equipped. This chapter assesses the role and contribution of litigation in efforts to protect Australia’s biodiversity. The analysis focuses on legal disputes arising from land clearing, mining, marine species protection, and climate change. Cases have sought to protect iconic native species, including the Tasmanian devil, while also addressing conflict between environmental protection and cultural heritage, such as threats to ecosystems caused by brumbies. The legal basis for the claims includes traditional judicial review grounds and novel conceptions of public duties owed variously to younger generations and to indigenous peoples. The chapter demonstrates that Australian courts have been relatively constrained in protecting biodiversity, due in part to judicial deference to Australia’s legislative and executive branches and the limited direct applicability of international environmental law. Recognition by judges of their role in protecting Australia’s biodiversity is more apparent within specialist courts at the subnational level. Achieving an effective national approach to biodiversity protection may be more attainable due to a change in government at the federal level, although major legal and political challenges remain.