So much for that. The grand idea of adapting the law of negligence to protect us and future generations from the ravages of climate change has been consigned to the dustbin of legal innovations by the Full Court of the Federal Court of Australia.
The court delivered its unanimous verdict this morning, overturning the revolutionary judgment by Justice Bromberg in May 2021, in which he found that the minister for the environment has “a duty to take reasonable care to avoid causing personal injury to [children under the age of 18] when deciding under…the EPBC Act, to approve or not approve” a coalmine extension.
The minister, Sussan Ley, was considering a mine expansion in NSW under the Environment Protection and Biodiversity Conservation Act. She has statutory duties to take environmental considerations into account. The judge found that, beyond these, she also has a duty at general law to consider the impact of her decision on children and, specifically, the future viability of the environment in which they’d like to continue living.
The case had been brought by a group of eight brave young people led by Anjali Sharma, and lawyer David Barnden, on behalf of every Australian child.
Bromberg, after receiving a massive volume of evidence about the impacts of carbon emissions from the burning of coal on the environment, concluded the risks were foreseeable on the current state of knowledge and that, consequently, the minister (and through her, the government) owes a duty to take reasonable care to avoid causing personal injury or death to young people due to the increases in emissions.
It was a radical extension of the doctrine of negligence, which imposes a legal duty of care on people and institutions in myriad contexts where their actions or inactions may cause harm to other people who don’t have a say in the matter. A doctor owes a duty of care to their patients to exercise their skill expertly; a council to the public to maintain the streets and swings; a shopkeeper to customers to make sure they don’t slip and fall.
The duty is pervasive and, since its invention by the House of Lords in 1932, has evolved and morphed to provide a society-wide insurance net for most things that go wrong and cause injury or loss. It wasn’t, therefore, an entirely crazy idea to suggest that it should go so far as to require governments to protect their citizens from the known and inevitable harm which climate change is already causing and which they are uniquely placed to mitigate or even prevent.
However, the Full Court said no. The three appeal judges had different reasons for saying so, but in essence their logic is that this is a legal bridge too far. To recognise the duty in this context would create a monster of ill-defined and incoherent proportions.
The judgment wasn’t available in time for my deadline, but I get the impression the judges were concerned that allowing this precedent to stand would cause mayhem and potentially paralyse the efficient functioning of government.
My personal view is that it’s a shame that lawyers had to make this attempt at all, to resort to the law of negligence to try to impose some degree of responsibility on our government to stop being an environmental vandal and take its role seriously.
Fundamentally this should not be a question of a duty of care. It should be a question of right. If Sharma and every other Australian child should be entitled to look forward to a future life not existentially endangered by the abject failure of preceding generations to take climate change seriously and do something about it, then it is a short ethical step to recognising that as a basic human right: the right to live, which requires an inhabitable planet.
The case may go on to the High Court, although I am not convinced that that court would even consider it worthy of its attention. In any event, the law as at this moment is what the Full Court has just said: we are legally unprotected from governmental failure to address climate change.
The case was worth bringing, and my admiration and encouragement go to the kids and their lawyers. Heroic failure is nothing to be ashamed of.
They have highlighted a failure in our framework of legal protections, from the greatest risk of all: extinction. The solution lies in the recognition of our right to go on breathing. That is where the fight needs to be taken.
The case was worth bringing, and my admiration and encouragement go to the kids and their lawyers. Heroic failure is nothing to be ashamed of.
I agree completely. Kudos to the kids and their lawyers.
Kudos to the kids indeed I believe in the cliche “children are our future” In this case, these children will need to change the world order to preserve the planet.
“ ….the law as at this moment is what the Full Court has just said: we are legally unprotected from governmental failure to address climate change.”
Thanks for spelling the horrid, depressing legal truth of it out so clearly, Michael.
“ The solution lies in the recognition of our right to go on breathing.”
Who knew we needed to add something so basic to the Bill of Rights we’re never going to get as we prepare ourselves to welcome King Charles III of Australia, he of the black spider letters whose main ambition in life was to be a tampon not too long ago?
And we wonder why some call us “The poor white trash of Asia”?
Why should we be surprised when another minister puts fossil fuel profits ahead of the future of the young. Young people should not have to pay for the profits of Liberal party mates with their health.
The Australian taxpayers are currently paying billions of dollars to clean up after multinationals have stolen fossil fuels and minerals . Many Australian companies are splitting by demerging their “dirty ” side of the business from the clean and acceptable side to facilitate this. .
The idea is when the dirty coal mine is no longer profitable you can allegedly put it into a caretaker or standby state waiting for the mine to become profitable again This will never happen, and after a period you then sell the company of to some $2 company and wipe your hands . The taxpayer cops the rehabilitation bill.
The other model is where the mining company is structured in a manner that leaves nothing but debts and in return for writing of obligations to workers such as long service , tax obligations etc the bloated miner delivers a miracle election win via the preferences of the donkey voters and conspiracy believers
Big losers the ordinary average Australian.Big winners The mates of No Show To slow Teflon coated gold Standard Untruthfull PM
The issue of Abandoned mines legacy is being addressed with chain of custody legislation in Qld. So even when the mining company has been wound up and the executive and board have moved on, the Environmental Authority that was issued to allow the mining still has a a signature on it. Bad luck signatory and board of applicant company.
perhaps we can sue the nuclear disarmament party and Peter garret for blocking nuclear power plants. With excess base load capacity, we could have shut down Coal already.
Ancient News Alert – neither Garrett nor the NDP got up in the Senate in 1984 due to Hawke directing Labor preferences to the Liberals and the Liberals directing theirs to Labor.
Purely to cruel the chances of an effective focus for change.
As they both did to Janine Haines who resigned the Dem leadership to content a Reps seat in 1990.
BTW, re Kitching, Haines died aged 54, worn out by too many years of selfless service to the national and bastardry from the usual suspects for the usual venal reasons.
Thanks Epimenides. Still, the mood of the nation swung strongly against nuke power and the three mine policy. Ironic as our only nuke reactor in Lucas Heights is in suburbia. Perhaps so this technology can go forward? https://youtu.be/RY08xO-_11w
When it was being built (eventually commissioned in 1958) the area was thick bushland, well isolated, far from suburbia and hard to reach.
I wonder if Queensland law covers all of Australia and if a negotiated mitigation be it legal or not has ever not cost the taxpayers money?
Just another confirmation that the LNP has successfully put ordinary Australians on the hook for the environmental, financial, social and psychological costs of its denialism and complete abrogation of governmental responsibility to meaningfully respond to anthropogenic Climate Change which has now been with us for many decades.
On a wider front it is now crystal clear that this Federal Government will broaden its political interpretation of this ruling as a signal, no matter what the issue, that it has no duty of care, politically, legally or ethically for anything it does or doesn’t do. One has to wonder what Ministerial Oaths of Office actually do encompass since there is apparenly no requirement to operate in the interests of the Australian community in general. In the absence of a properly framed and resourced Federal ICAC the Oaths appear to be nothing more than a licence to allow goverance to be directed solely to Party political fortune and power. In Australia, the devil has indeed already taken the hindmost, the electors.
Tragically, despite everything, the LNP can still count on enough Australians voting against their best interests to put this mob of idiots and amoral crooks back in.
We shouldn’t require a law to instruct government or organisations that the planet isn’t theirs to destroy.
Kudos to the kids and lawyers involved but it simply shouldn’t come to this.
Despising this rotten government ain’t difficult.