The Federal Court ruled last week that Sussan Ley, the Federal Environment Ministry, did not owe any duty of care to Australia’s children. We might now be asking whether Australia is ready to catch up with the rest the world in recognising a human right to a healthy environment.
The Full Bench of Federal CourtThe reverse was achieved. Justice Bromberg has a previous decisionIn July 2021, Anjali Sharma and her colitigators. The Minister is required to exercise reasonable care to prevent personal injury to the plaintiff children. 1999 Environment Protection and Biodiversity Conservation Act(Cth), to approve/not approve [Whitehaven Coal’s Vickery Extension Project].
Many people were astonished at His Honours’ earlier decision. Pointed referenceTo the Minister’s duty, relating to the prevention of harm from carbon dioxide being released into the Earth’s atmosphere.
Justice Brombergs decision was reacted to indifferently by other quarters, including the Ministers office. This resulted in its immediate challenge. The Full Bench of Chief Justice Allsop as well as Justices Beach and Wheelahan supported Minister Ley. They held that such a broad-based duty was not to cause personal injury or deaths to persons who were less than 18 years old and ordinarily reside in Australia at the moment. This was due to the statute being incoherent or inconsistent. It did not have enough closeness or directness between Ministers statutory powers with the likely risks to the respondents and the class it represents.
It is not surprising that such an outcome has occurred. While all three judges were adamant not to question the seriousness of climate change issues facing children and adults worldwide, they felt that they had to follow Justice Bromberg’s expansive reasoning when analysing the situation through the strict legal lens of principles and negligence and the relevant Act.
It was surprising that it took two (Federal Courts) bites at this cherry to get there. This type of claim to a healthy and clean environment is not common in our courts. It is difficult to bring such broad human rights claims at the Commonwealth level without a federal bill. And of the three jurisdictions where such overarching human Rights laws exist (Victoria ACT and Queensland), none provide for a claim to a healthy environment.
The situation in many other parts of the world is very different. The right to a healthy environment is recognized by most other countries, whether in their constitutions, regular human rights laws or relevant regional human rights agreements. Except for China, Russia and the Middle East it is mostly common law jurisdictions that do not have such legal recognition (the Republic of Ireland being an exception).
Vanguard and successful environmental litigation that is based on human right arguments is, therefore, not just expected but actively encouraged by many national courts.
France has seen a number of recent cases where the courts have stressed the importance of protecting the environment. In one caseAn Administrative Court in Paris ruled in favor of four NGOs last year. They argued that the government had failed under international and national law to reduce France’s greenhouse gas emissions. This failure, the court observed, was more concerning as it was measured against the targets that the government had set. 2015 Paris Agreement. The case has been tagged laffaire du sicle(Case of the Century), not least because the petition that spurred the four NGO plaintiffs was signed by more than 2 million people.
French courts have also been criticized MandatoryThe government takes the necessary additional measures to comply with its international climate obligations within months (not years) in a case that was prompted by concerns about rising sea levels threatening a nuclear power station on France’s north coast. In addition, Another caseThis time, the courts ruled in favor of the government and against the industry peak body.
The Dutch courts are similarly active. The Supreme Court ruled that the failure of states to reduce their share of global emissions was a risk to the health and safety of Dutch citizens. This ruling was made under Article 2 and 8. European Convention on Human Rights. In the middle last year, another court was opened in The Hague ruledShell, an oil company based in Shell, has a duty of care to reduce carbon emissions. Corporations are not. NotThey are bound by international human rights laws and are expected to respect them above all other national laws.
Similar cases were heard in other European courts, including in Germany and Ireland. European Court of Human RightsStrasbourg However, such litigation has also been pursued All over the globeFrom Argentina and Brazil to India or Indonesia. According to the most recent Global Climate Litigation ReportPublished by the UN Environment Programme, more than 1,500 climate related human rights cases are currently being litigated around world.
Evidently, in all these jurisdictions, the existence of legal guarantees for the protection and preservation of the environment and health has not only helped governments or corporations to focus on their moral responsibilities and obligations (as Anjali Singh puts it), but also provided courts with the tools to enforce them.
So it should be in Australia.
The UN Human Rights Council will be inaugurated on 8 October 2021 RecognizedThe right to a healthy and safe environment was recognized as an international human rights for the first time. None of the 47 members of the Council voted against the resolution (43 votes in favor and 4 abstentions from China, India and Japan). Although Australia is not a member of Human Rights Council, it chose to not respond to the resolution.
Three weeks ago, Minister Ley had approved the extension of the coal mine that was the subject in the Sharma litigation. This is the conclusion AfterJustice Bromberg ruled that the Minister owed care in exercising her powers. However, Ministers argument that the approval was the result of a thorough assessment and strict environmental protection measures” was remarkably glib.
Comparatively to the perspectives taken in many of these jurisdictions, each country should do its fair part in reducing greenhouse gas emission and, most importantly, do it immediately. Australia is once more adopting the proverbial defense mechanism of an ostrich. We are left to rely on the common law notion of a duty to care and the limitations it entails, even though there is no recognized right to a healthy environmental in our constitutions or ordinary laws. Our judges have to accept or even force Anjali Sharma’s claims. They do so because it will take decades before there is any foreseeable harm that could be connected to the environment. [Ministers]Act (as per Chief Justice Allsop will become apparent.
We owe our children, judges, and ourselves the obligation to provide better legal instruments to tackle climate change.
Professor David KinleyHolds the Chair in Human Rights Law, University of Sydney. She specializes in the intersection of human right and the global economy.
