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The judgement that changed climate law in Australia

In a recent landmark judgement, the federal court has found that the government owes children a duty of care in preventing harm from the impacts of climate change.

In a recent landmark judgement, the federal court has found that the government owes children a duty of care in preventing harm from the impacts of climate change.

The case, which centred around the proposed expansion of a NSW coal mine, could have far reaching legal implications in Australia.

Today, writer for The Monthly Kieran Pender on the case that saw a group of teenagers take on the Minister for the Environment. 


Guest: Writer for The Monthly Kieran Pender.

Show Transcript

[THEME MUSIC STARTS]

 

RUBY:

From Schwartz Media I’m Ruby Jones, this is 7am.

 

In a landmark judgement, the federal court has found that the government owes children a duty of care in preventing harm from the impacts of climate change.

 

The case, which centred around the proposed expansion of a NSW coal mine, could have far reaching legal implications in Australia.

 

Today, writer for The Monthly, Kieran Pender, on the case that saw a group of teenagers take on the Minister for the Environment. 

 

[THEME MUSIC ENDS]

 

RUBY:

Kieran, can you start by telling me - who are the parties involved in this case? 

 

KIERAN:

So this case involves Whitehaven Coal, a mining company. It was looking to expand one of its coal mines in northern New South Wales. If that is approved, that'll ultimately result in the emission of, you know, about 100 million tonnes of CO2 into the atmosphere. And that went up for environmental approval from the federal environment minister, Suzanne Ley.

 

Archival Tape -- Protesters:

“Coal, don't dig it! Leave it in the ground, it's time to get with it.”

 

Archival Tape -- Reporter:

“Students leading a class action against a coalmine extension in Australia had their first day of hearing on Tuesday.”

 

KIERAN:

In response to this, eight Australian teenagers and an 86-year-old nun, they went off to the federal court.

 

Archival Tape -- Reporter:

“The landmark claim by a group of teenagers argues that the expansion of Whitehaven’s vickery coal mine will contribute to climate change.”

 

KIERAN:

And they asked for an injunction to prevent the environment minister from approving the proposal for a coal mine expansion.

 

Archival Tape -- Anjali Sharma:

“We face an increasing amount of natural disasters and the climate is becoming unlivable for us.”

 

KIERAN:

One of the plaintiffs, the lead plaintiff was a teenager called Anjali Sharma, and she's been really vocal in underscoring the significance of this action and the ultimate outcome.

 

Archival Tape -- Anjali Sharma:

“This is a crisis that disportionately affects people of colour, young people and marginalized people around the world.”

 

RUBY:

And so this court case, as you've said, it's about this specific coal mine in New South Wales, but tell me more about the bigger legal argument that's being made here by the teenagers and by this nun about protecting future generations from climate change. 

 

KIERAN:

On one hand, this is a really radical idea, but on the other hand, it's actually continuing a long standing common law tradition. So the common law for about one hundred years has said that we owe each other duties of care to act in a way that we don't cause harm to our neighbours. 

 

And so, you know, that area of law called tort law has provided all areas of our life. When we drive in a car, you know, when we injure ourselves at work, you know, it's this regime of tort law that's governing and surrounding that. 

 

So what these teenagers and their litigation guardian, the 86 year old nun were seeking to do was expand that into the climate era. To say that that duty that you don't enjoy your neighbour when it comes to the minister required that she doesn't cause foreseeable harm to the next generation of Australians and that she would be doing that if she were to permit this coal mine to go ahead. And therefore, that should be prevented by the court. 

 

RUBY:

Hmm. OK, and so the decision was recently handed down. Can you tell me about what the judge found? 

 

Archival Tape -- Mordy Bromberg:

“Please call on the matter.”

 

Archival Tape -- Court assistant:

“Calling ruling BRD ix zero seven of 2020, Anjali Sharma and others by their litigation..”

 

KIERAN:

So we're in Melbourne, just as the city was going into lockdown, a courtroom on William Street and the grey haired federal court judge Mordy Bromberg, was delivering a brief summary of his 161 page, 70,000 word really mammoth decision.

 

Archival Tape -- Mordy Bromberg:

“I will refer to the applicants and the Australian children they represent collectively as “the children.”

 

KIERAN:

He was speaking to a handful of masked lawyers and barristers in front of him and to the world via live stream. 

 

Archival Tape -- Mordy Bromberg:

“The need for coherence in the law requires that the broad statutory discretion conferred on the minister, by Parliament, not be impermissibly impaired by the imposition of duty of care.”

 

KIERAN:

And he was making a number of fairly uncontroversial observations about the law of negligence. 

 

Archival Tape -- Mordy Bromberg:

“There would be such an impairment if the scope of the duty of care, which the common law recognises, extends beyond the duty to take reasonable care to avoid personal injury to the children.” 

 

KIERAN:

But then in this really pivotal moment, he paused. He took a breath and he said..

 

Archival Tape -- Mordy Bromberg:

“Having weighed and balanced those considerations, the court is satisfied that a duty of care should be recognised.”

 

KIERAN:

This was a landmark moment in Australian climate litigation. In other words, the Environment Minister owes these teenagers a duty of care not to exacerbate the impact of the climate crisis. and that is a really big deal.  

 

RUBY:

Right, so what does that mean for the future of Whitehaven coal’s mine, the one it wanted to expand? Is that expansion off the cards, as a result of this?  

 

KIERAN:

Well, not quite. And this is the caveat to the significance of the decision. The judge didn't actually issue the injunction because he found that he wasn't satisfied that the minister was going to breach the duty of care because she hadn't actually given the mine approval, the judge said that there was still a possibility she wouldn't breach it and therefore it was inappropriate to grant this injunction.

 

And so at the time, some of the newspapers said that this was a loss for these plaintiffs.

 

The owners of the coal mine, Whitehaven, even issued a statement to the stock exchange where they effectively claimed victory. But the lawyers that I spoke to had a very different view. 

 

Archival Tape -- Dr. Chris McGrath:

“Stunning is the word I've used for, to describe the decision. I just thought it was amazing. I couldn't believe it.”

 

KIERAN:

One of the baristas I spoke to was a guy called Dr. Chris McGrath from up in Brisbane. He's been the mastermind really for a lot of climate litigation, resisting new coal mines over the past decade, although he wasn't involved in this current case.

 

Archival Tape -- Dr. Chris McGrath:

“To have a judge just accept the science and just say all of these terrible things are going to happen and there is a duty to take action now to prevent them. It shouldn't be shocking, but yeah, after 15, 20 years of the opposite sort of decisions, then to me it was shocking…”

 

KIERAN:

And he said to me, this is Mabo for the climate. 

 

Archival Tape -- Dr. Chris McGrath:

“I think this decision is of enormous significance. And I think we will look back in future years and see it like Mabo for climate and really, he's given a formula for litigants as well as other courts to find a duty of care for climate damage.”

 

RUBY:

We’ll be back after this

 

[ADVERTISEMENT]

 

RUBY:

Kieran, what  does this court case tell us about the idea of duty of care, in terms of future climate change impacts? How significant is it?

 

KIERAN:

It's significant for a number of reasons, firstly, it can't really be legislated over. So one of the problems that Australia's environmental lawyers have had for a long time, really since the early 1990s, they've been exploring every conceivable area of law seeking to prevent climate harm. So they've gone through planning and administrative law, human rights law, corporate law. And now we're in and this law of negligence of tort law. But a number of those other areas can just be legislated over. 

 

Archival Tape -- Dr. Chris McGrath:

“It is incredibly frustrating when you win and then, you know, you get legislated over.”

 

KIERAN:

Chris McGrath, the Brisbane barrister, he told me that once he had a win in the Court of Appeal at 10am and by two p.m. that day, the state government had already changed the law, turning his win into a loss. 

 

Archival Tape -- Dr. Chris McGrath:

“But that's the risk you take in any big litigation against government that if you lose, they control the rulebook, they can make laws to overcome, you know, a decision.” 

 

KIERAN:

So what's significant about finding a duty or care exists as long as its upheld on appeal it can't easily be legislated over, the Commonwealth doesn't have constitutional authority to change, radically change tort law. The only way that could really get around this would be to pass a law expressly excluding their ability to be sued for this duty of care, which would be politically, you know, not not the greatest approach to take. 

 

You know, This doesn't necessarily just apply to the environment minister. It could apply to all members of our government. It could apply to state and territory governments. 

 

RUBY:

Ok, so what options are available to the federal government then?

 

KIERAN:

I think they'll appeal is the first thing. And that'll firstly go up to a full bench of the federal court probably later this year, so whoever loses there will almost certainly go to the High Court. And given the significance of this case, you'd expect that sometime next year our highest court in the land will be looking at this question. 

 

But because the climate lawyers and these kids won at first instance, that's going to be a challenge for the minister to overturn. It's not impossible. But certainly this is positive in terms of Australia, you know, our climate future and moving towards a position where our government takes climate action more seriously. 

 

There are very few legislative options that could get around this. So really, I think it's only the appeal that is an option for the Morrison government. And if they lose on appeal, this will really fundamentally reshape the state of Australian climate litigation and force the government to move towards climate action, because if they don't, there's going to be lawsuits left, right and centre. 

 

RUBY:

And what are the bigger picture implications here Keiran - how is this case likely to change the landscape in Australia in terms of action on climate change? 

 

KIERAN:

You know, we have a government at the moment that is really doing very little on climate action, on reaching our commitments under Paris. And I think this case will provide the first step for more claims that take on the government over that inaction and say that inaction ultimately represents a breach of the duty of care our government owes to young Australians. 

 

It'll also potentially lead to cases against big emitters, big mining companies. Now, this really, if it succeeds on appeal, opens the door to a next wave of climate litigation. And that follows really in the footsteps of other countries as well. We're seeing all around the world, in the absence of political action, the courts are providing an avenue for climate activists to seek positive change.

 

And until now, Australia's courts haven't been quite as creative, haven't been quite as innovative in seeking to address this issue of our time, this existential climate crisis we face, which is why this case, Sharma and the minister for environment is so significant because it really is that first Australian step towards climate action urged on by the courts. 

 

Archival Tape -- Teen plaintiff from the case:

“I definitely have hope because if you look around you can see all the incredible climate activists, all these people young and old, all these people fighting for what's right and we are making change.”

 

RUBY:

Kieran, thank you so much for your time. 

 

KIERAN:

Thanks.

 

[ADVERTISEMENT]

 

RUBY:

Also in the news…

 

NSW recorded 16 new locally transmitted cases of COVID 19 on Sunday, a significantly lower case load than the 35 reported on Saturday.

 

The Chief health officer Kerry Chance said 14 of the cases were linked to previously confirmed cases, with 5 of them household contacts

 

Sydney’s lockdown is due to end this Friday, but it’s unclear at this stage if it will be extended.

 

Meanwhile Queensland reported one locally transmitted case of COVID-19, as the state came out of it’s lockdown

 

I’m Ruby Jones, this is 7am, see you tomorrow

 

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