Australia: The Commonwealth Environment Minister was found not to have a duty to protect Australian children against the effects of climate change

In short

Today (15 March 2022), the Federal Court of Appeal reversed a landmark decision in climate and environment. In the original decision, the Commonwealth Minister for Environment was held to have a common-law duty of care to the Australian under-18 population. This duty required that the minister take reasonable care not to cause injury or death due to Australian carbon dioxide emissions. Today, the Full Federal Court in Sharma, Minister for Environment [2022]FCAFC 35 overturned this decision and unanimously denied that such an obligation of care should be imposed upon the Minister. This judgement will have implications for negligence and liability claims in the environment and climate laws as well intergenerational equity obligations.

The key takeaways for corporates

In some jurisdictions, tortious claims relating to climate change have also been filed against companies. The Court’s decision not accepting this duty of care may reduce the risk faced by corporations in relation to such claims. Although some of these reasons were specific to the Minister’s position and not applicable to corporate claims, others, such as lack, proportionality, and reasonable foreseeability could also apply to corporate claims. Companies should be aware of the fact that there are other legal options for pursuing climate change actions. This includes the statutory misleading or deceptive conduct provisions, where companies make representations about their environmental credentials and forecasts.

Background

This case was originally filed as a class action on the 8th of September 2020. Eight young men aged 13-17 claim to represent all Australians below the age of 18. These plaintiffs sought an order to stop the Minister from approving Vickery Coal Project Extension in Northern NSW. They argued the Minister had a common duty of care to young Australians. 1999 Environment Protection and Biodiversity Conservation Act (Cth) (“EPBC Act“).

The Federal Court of Australia established on 27 May 2021 a new duty of care in order to avoid any personal harm to children, but declined to issue an Injunction to force the Minister into stopping the extension of the coal mine.

Justice Bromberg, the primary Judge, ruled in favour of the plaintiffs on the 8th of July 2021. He issued a groundbreaking declaration titled “The The…” [Minister] has a duty to take reasonable care…to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.” The Court declared that the duty was applicable to all Australian youths as both applicants and Australians shared the same interest and ordered the Minister be paid.

Chief Justice Allsop was accompanied by Justice Beach and Justice Wheelahan in hearing the appeal of Minister against the primary judge’s decision. The appeal was heard on 18-20 October 2021.

Analyse

The Federal Court’s unanimous decision was not surprising, but each judge had different reasons for why the duty of care under EPBC Act should not have been imposed.

Chief Justice Allsop concluded that the Court could find no common law obligation based upon the following legal issues.

• The imposition a duty on a Commonwealth minister involves core public policy-making considerations. “The assessment of which is not suited to be decided by private litigation by the judiciary branch.”
• Finding such a duty of care would have been “incoherent and inconsistent” with the Minister’s decision making powers and the EPBC Act’s application and operation within the intergovernmental arrangements of Commonwealth and State governments over the management and protection of the environment.
• “The Minister’s “lackof control over the harm (as distinguished from over the tiny contributor to the overall risk from climate change), lack of special vulnerability, indeterminacy of liability, and the lackality of proportionality between any increase in risk, lack of control, and liability, for all damage by heatwaves or rising sea levels to all Australians below the age of 18 ongoing into the future mean that the duty of tort should be avoided.”

Justice Beach found that the duty shouldn’t be imposed on the basis of two factors:

• His Honour believed there was not “sufficient closeness and directness” between the Minister’s exercise of statutory power and the likely risk of harm to the claimant class (all Australians under 18).
• In addition, the Court could impose such a duty if it deemed necessary. It is impossible to establish a causal pathway between the Minister’s breach and any personal injuries suffered by claimant classes due to the geographical range, timing and contingency.

Justice Wheelahan concluded that the duty of care was inapplicable for the following reasons.

• The EPBC Act doesn’t create or facilitate a relationship between a Minister, respondents, and those they represent that supports the recognition and duty of care. “Control over carbon dioxide emissions” and “protection of the public against personal injury caused by climate change were not roles that were conferred to the Minister by the EPBC Act.
• The Minister’s decision making functions under the EPBC Act would be radically altered if there was a duty of care for all Australians younger than 18.
• Justice Wheelahan did not believe that the risks of personal injury from the approval for the coal project were sufficient for reasonable foreseeability. The concept of causation was used for the purposes common law tort of negligence.

What’s next?

The child-plaintiffs will have 28 days to apply for special leaves to the High Court in order to appeal this decision. Very few cases are accepted for special leaves. This is due to the fact that the test under s.35A of the Judiciary Act 1903(Cth) cases that are of public importance to the law department can be considered for special leave.