The Morrison government has been forced to acknowledge that climate change driven by coal consumption will inflict massive costs on Australia but argues it owes no duty of care to Australian children in relation to it, according to documents it has filed in a landmark case.
Sharma v Minister for Environment, filed last year by eight young people against Environment Minister Sussan Ley, seeks to prevent the government from greenlighting a major expansion of the proposed Vickery coalmine in New South Wales, owned by Coalition donor and National Party-linked Whitehaven Coal. The case is awaiting judgment in the Federal Court in Melbourne.
The government’s statement of response, prepared by the government solicitor, makes for interesting reading in light of its refusal to address climate change and its support for more coal-fired power stations, its “gas-led recovery” and support for discredited fossil-fuel technologies like carbon capture and storage.
In a series of statements, the government admits climate change is real and catastrophic for Australia and caused by gas and coal:
Since 1910, Australia’s climate has warmed by just over 1°C, and the surface temperature of oceans around Australia have warmed by around 1°C. Consistent with global trends, eight of the 10 warmest years on record in Australia have occurred since 2005 … The observed changes in the earth’s climate are caused by increased greenhouse gases (GHG) … The main contributor to that observed growth in atmospheric carbon dioxide is emissions from burning fossil fuels, including coal, oil and gas … Some further warming of the Australian climate is unavoidable.
Under all future emissions scenarios, it is very likely that: (a) average temperatures will continue to increase and Australia will experience more heat extremes and fewer frosty days; (b) extreme rainfall events will become more intense; (c) southern and eastern Australia will experience more extreme fire-related weather; (d) the time in drought will increase over southern Australia; (e) sea levels will continue to rise throughout the 21st century, with increased frequency of storm surge events; and oceans around Australia will warm and become more acidic.
And it admits the mining proposal from its allies at Whitehaven will make climate change worse:
[It] would result in a reduction of about 1Mt CO2-e of scope 1 emissions, increase of about 0.15 Mt CO2-e scope 2 emissions and an increase of about 100 Mt CO2-e of scope 3 emissions over the life of the extension project.
But it argues it’s only “speculative” that the applicants — young Australians — will be harmed by the project, because climate change will depend on the rate of reduction in emissions increases, which is also affected by other factors.
But above all: “The minister does not owe a duty of care as alleged.”
To find that the government owed a duty of care not to harm young Australians would, the government solicitor says, be “elevating as a paramount, and apparently overriding, consideration the potential for the controlled action to cause relevant harm … would involve the court in consideration of the merits of the decision [that] … would be inconsistent with the limited role of the courts in supervising the legality of statutory decision-making.”
What alarms the government’s lawyers most about the idea that it might owe a duty of care to young Australians is that it might impose a significant obligation to act upon it.
The applicants claim that the duty is owed to them, and all children born before the date this proceeding was filed who reside in Australia or anywhere else. Recognition of that duty would expose the minister to a potential liability of vast scope. Further, there is no logical reason to confine the duty for which the applicants contend to children already born at the time of commencement of this proceeding. If the duty was recognised, it would be a duty owed to all living persons (perhaps excluding the elderly) and perhaps also to children yet to be born. A duty owed to a class of such breadth is not one which the common law could sensibly recognise.
In short, the government admits climate change driven by coalmining will harm Australians, but it has no legal responsibility to stop expansions in coalmining because that would require the government to actually protect future Australians.
Do you reckon the government has a duty of care to Australia’s children? Write to letters@crikey.com.au. Please include your full name to be considered for publication in Crikey’s Your Say section.
The ministerial/governmental duty of care concept has huge, but very necessary implications…i hope the court finds in favour of the children, and well done to them for bringing the case,
And good work Bernard, in exposing the preposterous argument put forward by the government.
Since when has this government accepted any responsibility about anything it’s had anything to do with?
Waddabout the time tha… the…err, hmmm.
As you were.
What always astonishes and enrages me is that these politicians have no thought for future generations – do none of them have children?
They probably can’t see past their own children/grandchildren..They’re not in it for the big picture long run of many many many generations of others..
Oh, it’s going to be a long time before this wipes out the species. Until then, it’ll of course be poor people who suffer when inhabitable land and drinking water and food get more and more scarce.
And *their* children won’t be poor. They might have less outdoor fun, but mostly, they’ll just get a big enough share of the smaller pie, to still be comfortable.
Less than 100 years, BaBr.
That is a lot of election cycles.
By then, many hundreds of politicians of all parties will have retired on gold plated pensions.
Why would they care?
Much less than that time frame, think exponential, with fire, floods extreme weathers, no breeding space with fewer animals to replace or keep pace, with losses.
Bushfire smoke kills. Heat waves kill. Dramatic flooding kills. These events don’t ask about your politics.
The document argues that no one will be harmed “because climate change will [only] depend on the rate of (etc)”. Untrue, that’s just a cloud of words hiding a criminal fact. Any emissions whatsoever do permanent damage to the greenhouse, with a permanent increase in the annual rate of climate fatalities.
Any emission kills. Today’s emissions kill tomorrow and will continue to kill endlessly into the future.
Not “endlessly” – it would dissipate, eventually.
If all human caused combustion were to cease tomorrow, or last week/month/year, the CO2 & methane already in the atmosphere would continue the green house effect for a couple of hundred years.
Climate change cannot be halted or even reduced without radical change to the way the vast majority of humanity lives.
That is not going to happen voluntarily.
This country is ideally suited to lead in adaptation due to a tiny, relatively educated, population with well developed secondary & tertiary infrastructure in a vast landmass, with Ms. Girt Bysea providing good insulation from the oncoming Crapocalypse.
In the Robodebt fiasco the government was also denying it had a duty of care to welfare recipients suing them for damages.
In fact it used it’s role to persecute Australians.
….. Not unlike what this looks like. It’s willingness to subject our kids to such torment through their government studied neglect : rather using their position to legislate to allow their donor mates to profit from those detrimental pursuits?
They won’t even chip those donor mates to improve employment conditions for those people Scotty FM claims he’s so empathetic with?
Morrispin wouldn’t recognise empathy if it jumped up and punched him smack bang in the face.
I think he’s more likely to punch empathy in the face, if he was interested in finding it – or, worse, toss it into some bottomless black hole …. like Laming?
And then refoul it.