Senator Pocock’s Duty of Care Bill; Requiring the Commonwealth Government to consider the impact of climate change on present and future generations

Climate change litigation in Australia

In fact there has been a sizable body of strategic litigation in Australia that has informed the Bill. In Australia, climate change issues have typically arisen in the context of judicial or merits reviews of decisions under environmental and planning legislation (ie seeking review on the grounds that the decision-maker failed to take into account climate change). These administrative law challenges are sometimes referred to as the 'first wave' or 'first generation' of climate change litigation and they continue to maintain a strong presence in the Australian climate change litigation landscape.

Across the world a second wave of climate litigation, based on tortious claims brought against major energy companies for negligence, began to emerge. A landmark decision, the Urgenda case in Netherlands handed down in May 2021, the District Court of the Hague ordered Shell to reduce its overall CO2 emissions by at least 45% from 2019 levels by 2030. The decision relies on the 'unwritten standard of care' contained in the Dutch Civil Code. The Urgenda climate case made history as the first instance where citizens successfully argued a legal 'duty of care' to prevent hazardous climate change. This case sparked similar lawsuits around the world, based on common law claims of negligence. As climate litigants sought to extend climate protection to both present and future generations, the idea of a 'duty of care' imposed on governments to sustainably manage resources, emerged globally as a possible cause of action.

In Australia however, the results have been less favourable. Sharma Vs Minister for Environment was an Urgenda-style claim brought by young litigants against their government. The claim was not ultimately accepted as a legal avenue for holding the Commonwealth government accountable to young people for decreasing greenhouse gas emissions.

The particulars of the case are below.

Sharma v Minister for the Environment

In 2021, a high-profile federal court (court of first instance) handed down a judgment in a case brought by 8 young teenagers and an octogenarian nun (the "Claimants). The court found the then-environment minister, Sussan Ley, had a duty of care to protect young people from the climate crisis.

A coal mining company (Whitehaven coal mine in New South Wales ) applied under the Environment Protection and Biodiversity Conservation Act (the EPBC Act) for approval to expand and extend an existing approved coal mine (the Extension Project). The youths sought to prevent the approval of the expansion of the mine on the grounds that, the Commonwealth Minister for the Environment (the"Minister") owed a duty of care to Australian children. The cause of action in negligence or tortious action claimed that the Minister for the Environment owed a duty of care to exercise her powers under the Act (the "EPBC") with reasonable care to avoid causing harm arising from GHG emissions.

In a setback for climate change claimants, the Full Federal Court of Australia overturned the earlier decision. The Full Court rejected claims that the Minister owed each of the Children a duty to exercise her discretion with reasonable care so as not to cause them harm. The Full Court unanimously found that the Minister did not owe a duty of care when deciding to approve, or not approve, a proposed coal mine extension.

A key insight in the Sharma decision was that the court concluded that tortious claims in Australia may not be the right litigation strategy. Having regard to the text, purpose and context of the EPBC Act, the court concluded that the Minister's discretion was confined to specific matters of national environmental significance. Given the lack of control that the Minister had over the harm arising from climate change and an absence of any special vulnerability (ie beyond the impacts of climate change generally felt), the court was not persuaded that a duty of care was owed to the children. The court emphasised the 'dangers of assessing fragmented liability issues decades before any cause of action accrues.' In addition, the lack of proximity, indeterminacy and foreseeability of harm caused the court to conclude that the relationship between the minister and the children was casual.

Intergenerational Justice

The Senator's 'duty of care' Bill seeks to remedy current legal deficiencies by establishing a statutory duty of care. This would clarify the Minister's power and require the Minister to give conscious consideration to the impact of climate change on present and future generations.