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Today’s disappointing federal court ruling ends 20 years of climate litigation progress made in Australia.
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Today’s disappointing federal court ruling ends 20 years of climate litigation progress made in Australia.

Sussan Ley


The Federal Court ruled today unanimously that Sussan Leey, Federal Environment Minister, doesn’t have a duty of care for young people in relation to the dangers of climate change.

The ruling is overturned A previous landmark winEight high school students attempted to stop Ley’s approval of a coal mine expansion in New South Wales. Although the judge did not stop the mine expansion, he acknowledged that the minister had a duty to care for children in the face the climate crisis.

Ley’s successful appeal is Disappointed. We believe that the judgment will set back climate litigation in Australia by 20 years, at a time we urgently need to accelerate climate action.

Ley’s success is a testament to this. The federal court’s 282-page judgment offers myriad reasons for why no duty should be imposed on the minister. But what emerges most clearly is the court’s view that it’s not their place to set policies on climate change. Instead, they say, it’s the job of our elected representatives in the federal government.

Sussan Ley

Environment Minister Sussan Ley successfully argued she doesn’t have a duty of care to protect young people from climate change.
AAP Image/Ethan James

What did the judges say?

In the 2020 original class action case, a single federal court judge decided Ley owed Australian children a common law duty of care when considering and approving the coal mine extension, under Australia’s Environment Protection and Biodiversity Conservation (EPBC) Act.

The minister had to exercise her powers with reasonable care to prevent any injury or death to Australian children aged under 18 from carbon dioxide emissions.

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Ley appealed the decision in July 2013. She also approved the coal mine extension, arguing her decision wouldn’t contribute to global warming because even if the mine was refused, other sources would step in to meet the coal demand.

Today, the full bench of federal court ruled in her favor in a live-streamed proceeding: the minister shouldn’t be liable for the stated duty. Although the decision was unanimous, the three judges disagreed. Each had its own reasoning.

One judge saw climate change as a matter for government, not the courts, to address, saying the duty would be an issue “involving questions of policy (scientific, economic, social, industrial and political) […] unsuitable for the Judicial branch to resolve”.

Another said there was insufficient “closeness” and “directness” between the minister’s power to approve the coal mine and the effect this would have on the children. However, he did not rule out the possibility of a future action if any of the class members suffered harm.

Three reasons led to the decision of the third judge. First, the EPBC Act doesn’t create a duty-of-care relationship between the minister and children. Second, establishing a standard of care isn’t feasible as it would result in “incoherence” between the duty and the minister’s functions. Third, it’s not currently foreseeable that approving the coal mine extension would cause the children personal injury, as the law is understood.

The good news: Climate science remains undisputed

In the original case, the judge made landmark decisions about the dangers posed by climate change. This was a significant moment in Australian climate litigation.

He found one million of today’s Australian children are expected to be hospitalised due to heat stress, they’ll experience substantial economic loss, and when they grow up the Great Barrier Reef and most eucalypt forests won’t exist.

According to the judge, this harm was “reasonably foreseeable”. This is crucialLegally, because courts have previously considered climate changes to be speculative, it is likely that they will become a problem in the future.

Luca Saunders (16 years old), Anjali Sharma (17 years), Izzy Raj-Seppings (15, and Ava Princi (18) were among the eight children involved in this landmark court case.
AAP Image/Dean Lewins

Sussan Ley claimed that the court’s findings based on presented evidence were incorrect and exceeded what was submitted. These arguments were rejected today unanimously

The federal court found all the minister’s criticisms on the evidence of climate change were unfounded and all of the primary judge’s findings were appropriate to be made. Chief Justice Allsop made these conclusions:

[B]Global warming poses risks and dangers to humanity and the world in general.

This reaffirms the acceptance of climate science is unequivocalIt does not stop climate change from getting worse, as was recently shown by The devastating floodsAll over NSW and Queensland

It only transfers this responsibility to the federal government, which has policies that are increasingly out of line with what science and concerned citizens consider necessary.

Don’t follow the crowd

This was an Australian test case, which explored a novel legal argument. Its failure is likely to dampen Australia’s innovative climate lawsuits.

Today’s judgment asserts that the courts are limited in what they can do to address climate change. It is in direct contradiction to international climate court rulings and the widespread mobilisation of local and business groups for action.

Last year, we saw, for instance, a Court in The Hague OrderOil and gas giant Shell will reduce carbon dioxide emissions by approximately 45% by 2030. This is in comparison to 2019 levels. German court ruling that the government’s climate goals were not strong enough.

Today’s federal court finding that dealing with coal mine emissions is for governments alone seemingly reimposes barriers to climate litigation in Australia, carefully dismantled by the Climate change cases from the past two decades.

We’ve seen a number of landmark climate cases in Australia. This includes the Rocky Hill verdicta judge rejected a new mine for coal on climate grounds. Meaningful action on climate change.

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These cases gave hope that the courts could step in when the federal government fails. Today’s ruling suggests this is no longer the case.

In the lead-up to the Australian federal election, the appeal outcome emphasises the importance of changing government policy if we’re going to get better outcomes on climate change in this country. Climate change certainly will not wait – the fight for a safe climate future continues.


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