by Martin Slattery and Amal Naser, Carroll & O’Dea

A recent decision of the Federal Court has found that the Minister of Environment does not owe a duty of care to protect children from the future harm that will be caused by climate change. The primary judgment was the first common law decision in the world which considered the duty of care of executive members of government, around an issue which will have dire consequences on the lives of members of public permanently. In fact, we have already seen the impact that climate change is having on the lives of Australians such as the 2019/2020 bushfires which resulted in loss of life and extensive damage, as well as the recent devastating floods across Queensland and NSW which also resulted in loss of life and major damage to homes and businesses. So, the question remains, if the relevant Minister does not owe a duty of care to children, then who does?

Background

Eight children brought an action against the Federal Minister for Environment arguing that the Minister had a duty of care to protect young people from the future harm that will be caused by climate change.1 The case focused on the impacts of the proposed coal mine extension project in NSW known as the Vickery Extension project. The Plaintiffs also asked for the Court to grant an injunction to prevent the Minister from approving the project before a judgement in the matter could be handed down. This is the first case in Australia and the common law world which litigated federal climate polices under the tort of negligence.

The role of the Minister of Environment

The current duties of the Minister of Environment, the Hon. Susan Ley MP, is legislated by the Environment Protection and Biodiversity Conservation Act 1999  (Cth) (EPBC Act). It was argued that she owed a duty of care, through statutory interpretation of the EPBC Act, with a particular focus of ss 130 and 133.

Prior Judgement

In 2021, the case was heard in the Federal court of Australia by Justice Mordy Bromberg. It was concluded that the Minister owed a duty to take reasonable care to avoid causing personal injury to children when making a decision under the EPBC Act.2 The Court formed the view that this was within the exercise of power under ss 130 and 133 of the EPBC. The scope of the duty of care was related to coal mine expansion, where the Minister had to take reasonable care to avoid causing personal injury or death to persons who were under 18 years of age, and ordinarily a resident of Australia, arising from emissions of carbon dioxide into the Earth’s atmosphere.3 The Plaintiffs also sought an injunction to prevent the approval of the expansion of the mine, however, the judge rejected this request.

The Minister for Environment appealed the decision, contesting the finding that she owed a duty of care to children, within her role as Minister.

It is important to note that the implications of the legal decision were not the only element of importance, but the factual findings itself. Justice Bromberg considered the long-term impacts of climate change and made this judgement:

“The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.”

These factual findings created a significant challenge for the Minister of Environment during the appeal. She did not just have to challenge whether she owed a duty of care, but also the noted factual findings which judicially affirmed the dire impacts of climate change which has been warned by climate scientists for decades.

Read the full story here: https://www.mondaq.com/australia/climate-change/1178954/the-sharma-decision-and-climate-change?email_access=on