In New Zealand there is an ongoing legal action against the government producer of the New Zealand temperature record, the National Institute of Water and Atmospheric research Limited [NIWA].
Researchers found the temperature record produced by NIWA had a warming bias which basically created a warming trend of 1ºC per century when the raw data showed no increase at all. After being stonewalled by NIWA the researchers issued a Statement of Claim seeking a Judicial Review of the temperature record.
The Defence issued by NIWA was novel in that it claimed there was no official New Zealand temperature record [clauses 6 & 7].
An Amended Statement of Claim was issued and the case is now at the Affidavit stage.
Could a similar case be brought in Australia challenging the validity of the Australian temperature record which is prepared by the Bureau of Meteorology [BOM]?
There are similarities between BOM and NIWA: both have adjusted their temperature record and both have created a warming trend through the adjustments.
The BOM’s temperature has adjusted their temperature by approximately 40%. This appears not to be consistent with criteria laid down by Torok and Nicholls and Della-Marta et al.
However a complication with BOM is that they have replaced the former High quality network [HQ] with the new improved ACORN adjusted temperature network. In ACORN supposedly the problems with the HQ network which involved the creation of a warming trend have been corrected. However the temperature trend in ACORN is greater than in the HQ network!
Clearly the ACORN temperature network has not corrected the problem. But is it possible to litigate the ACORN temperature record and, as in New Zealand, seek a Judicial Review that the ACORN record is flawed and misleading?
Judicial reviews are sought under the Administrative Decisions (Judicial Review) ACT 1977- section 5.
The section in full is:
1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
The provisions of this Act should be read in conjunction with the Competition and Consumer Act 2010, section 2C. This establishes that the BOM is not exempt from the provisions of the Competition and Consumer Act 2010. BOM is not exempt because while it is a prescribed agency with staffing and financial autonomy under various legislation it does not satisfy any of the exemptions under Section 2C.
The BOM describes its activities as including:
The Bureau contributes to national social, economic, cultural and environmental goals by providing observational, meteorological, hydrological and oceanographic services and by undertaking research into science and environment related issues in support of its operations and services.
The BOM thus holds itself out to having expertise in its specified activities and provides services based on this expertise to both governmental and private customers.
BOM, therefore, is covered by Australian Consumer Law and is not exempt from the consequences of contravention of that law.
The ACL says this:
Businesses have an obligation not to engage in any conduct that is likely to mislead or deceive
consumers. Note that the conduct only needs to be likely to mislead or deceive; it does not
matter whether the conduct actually misled anyone, or whether the business intended to
mislead—if the conduct was likely to mislead or deceive, the ACL is contravened
If we apply this criteria to section 5 of the Administrative decision (Review) 1977 Act it is likely that subsection 2, parts (a) and (b) are relevant. In application to the ACORN temperature record, if, as it appears likely, that not only the defects of the HQ network have been remedied but exacerbated, then either irrelevant considerations were taken into account, or relevant considerations were not taken into account during the compilation of the ACORN data.
In addition section 5, subsection 2, part (h) may apply. If the temperature trend in ACORN is different from the trend of the unadjusted data, as appears to be the case, and the reasons for doing so are not justified, the uncertainty is created in respect of what the actual trend should be. This is especially the case since it is certain that some adjustments need to be done to the raw data for reasons outlined in Table 2.2, pages 59-60 Torok and Nicholls.
A Judicial Review is a specialised area of law and any litigation seeking a Review would be expensive. Litigation would be based on expert testimony. A peer reviewed paper has already been prepared in response to the HQ defects. Another would have to be done in respect of the ACORN ‘improvements’; researchers have already started this process. Not with standing this a failed application for Review would be likely to involve the payment of the BOM’s costs and possibly the government’s if it sought and succeeded in obtaining standing in the proceedings.
On the other hand if the ACORN temperature record was successfully impugned the flow-on to challenging all policies, charges, imposts, levies and costs, applied by government and private interests would be feasible since those flow-on areas arguably all rely on the temperature record produced by the BOM being the dominant indice of AGW. If this dominant indice is not accurate and exaggerated then the certainty of the AGW justification for imposts on the community is much harder to sustain.
In respect of this certainty it should be noted that the “precautionary principle” has been incorporated in legislation. However this may not be a bar to litigation. While the precautionary principle ostensibly provides a defence to the extent that the pro-AGW science is not settled and that any uncertainty with the ACORN temperature record should not prevent it being used to underpin policy, the statements of certainty from the BOM would seem to place any reliance on the precautionary principle as inherently contradictory; the BOM says this:
Australia and the globe are experiencing rapid climate change. Since the middle of the 20th century, Australian temperatures have, on average, risen by about 1°C with an increase in the frequency of heatwaves and a decrease in the numbers of frosts and cold days
This statement by BOM is not uncertain; the lack of uncertainty is sustained by the ACORN temperature record. If the ACORN record can be shown to be uncertain then the record is uncertain not as a product of the precautionary principle but due to the misrepresentation of the science in the ACORN record. On this basis litigation would proceed.