The Coles ‘fake discounts’ win shows the courts can deliver for ordinary people - but our access is under threat

In a bombshell ruling last week, the Federal Court found that supermarket giant Coles had misled consumers with fake discounts. By doing so, it facilitated something that feels increasingly rare: real accountability.

Opportunities for more accountability through the courts abounds – from climate harms to human rights abuses. Just last week, two retired science teachers from the Upper Hunter – Tony and Wendy – stood in the High Court for their landmark case against coal giant, MACH Energy. Unlike the uneven, donation-contingent access to major parties, the High Court must give Tony and Wendy’s evidence equal weight to that of a mega fossil fuel company. The chasm in money and political power that separates the two is of no interest to the judges.

In the bizarre post-truth, Trumpian world, where “of the people, by the people, for the people” feels increasingly out of reach, it serves as a salve. It’s a reminder of the importance of the judicial system in Australia, and the democratic role it is designed to hold.

But of course, where effective accountability exists, so too does well-funded, highly coordinated pushback. Sure enough, as reported by the UN Human Rights Council, efforts to undermine collective access to independent courts are ramping up. And it’s not always as far from home as we might like to think.

Just last week, the New Zealand Government announced plans to shield climate polluters from liability for the harm they are causing to New Zealanders from flooding, wildfires, storm damage, drought and sea level rise. It comes a few months after Republican lawmakers proposed a similar bill in the US. 

The reforms are a blow to communities who are living through the devastating reality of escalating climate harms. As lawyers, and legal academics have pointed out, the move threatens NZ democracy itself by undermining the rule of law and the separation of powers. 

Warning signs of similar attempts to undermine access to climate justice can be seen here in Australia. 

Fossil fuel lobby groups are ramping up open calls for legislative reform and defunding of community legal organisations to limit the public’s ability to bring climate cases, attempting to cast climate litigation as an ‘abuse of the law.’ 

Conservative media pundits dutifully repeat intentionally misleading threats of “activist lawfare”. In fact, our research at Grata Fund has shown that use of the term “activist lawfare” has increased almost eightfold in just five years.

Unfortunately, there are indications that the exact wrong message might be landing with Australian governments. 

Last year, the NT Government removed the opportunity to seek judicial review of Ministerial decisions under the Petroleum, Planning and Water Acts. Its statements echoed fossil fuel lobby talking points. The Queensland Government has followed suit, giving itself the power to override 15 planning laws, including the Environment, Heritage, and Nature Conservation Acts. 

It is a dangerous path, and one that cannot be allowed to spiral. 

As the NZ push to shield polluters shows, independent courts and access to them – regardless of wealth or power – are more essential than ever. Particularly when it is inconvenient for corporate or political interests who would rather do away with barriers to their unfettered power.

Isabelle Reinecke is the Founder and Executive Director of Grata Fund, a not-for-profit organisation which has helped shape landmark cases that have shifted the dial on human rights, democratic freedoms and climate justice in Australia. She is the author of Courting Power: Law, Democracy & the Public Interest in Australia.