In a comprehensive and resounding judgment, the full bench of the Federal Court of Australia has recently held that the Australian Environment Minister does not owe a duty of care to Australian children to avoid harm resulting from climate change when exercising her powers of discretion. The judgment represents a step back by the Australian courts in terms of the use of tort law to address the climate crisis.

The proceeding was brought by eight Australian teenagers and an octogenarian nun (as their litigation guardian), seeking an injunction preventing the Minister from approving a proposal to extend the Vickery coalmine in New South Wales. The claim was brought as a representative proceeding on behalf of all Australian children.

In its judgment last year, the Federal Court upheld the claim that the Minister has a duty when exercising her powers to avoid causing personal injury and death to Australian children resulting from CO2 emissions. This was the first time the Courts had found that Ministers owe duties wider than their statutory obligations, and seemed to open the doors for an increase in negligence claims against government bodies making planning and consenting decisions, at least in Australia.

However, on 15 March 2022, in a decision spanning over 250 pages in length the full Federal Court of Australia unanimously allowed the appeal by the Minister.

In three separate judgments, the Court rejected the imposition of the claimed duty of care. Each judge adopted slightly different reasoning, including the following:

• Issues concerning the climate crisis and its impacts are questions of policy, and are better dealt with by Parliament and the Executive.

• The claimed duty of care was inconsistent with the wording of the Environment Protection and Biodiversity Conservation Act, which is not concerned with protection of the environment, or global warming and climate change more generally. Human safety is not an implied mandatory consideration under the legislation, so the Minister is not required to take it into account in her decision-making.

• There was insufficient closeness and directness between the decision of the Minister and the child claimants. Upholding the claim would mean that a duty was being imposed before any damage had occurred and long before any assessment could be made as to the contribution of the Minister’s decision to the harm caused by the climate crisis.

What does this mean?

The Federal Court’s judgment is a significant rollback from the earlier decision, which established a new and broad duty of care on the Minister. The Court’s decision suggests a hesitancy by the Australian courts to interfere with policy decisions relating to climate change. However, the focus on the specific language of the Environment Protection and Biodiversity Conservation Act means that there remains scope for a duty of care to be imposed in relation to other exercises of discretion in Australia.

The Sharma decision has a number of key similarities with the recent New Zealand Court of Appeal decision in Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552, which we reported on here. In both cases, the Courts declined to recognise novel duties of care, finding that, at least in its current form, tort law is not the correct avenue through which to address the complex and multi-faceted problem of climate change. By contrast to a number of European decisions, the Trans-Tasman tendency for the courts seems to be to defer to the other branches of government when it comes to ascribing legal liability for the climate crisis.

However, the story may not end here. There was a diversity of views on the bench which suggests there may still be some life in tort law for the future of climate litigation. Justice Beach in particular did not close the door on the possibility that new duties could develop, remarking that it was for the High Court, rather than the Federal Court to “engineer new…sustainable duties of care.” It remains to be seen whether the plaintiffs will seek special leave to ask the High Court to do exactly that.

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Thanks to Elizabeth Keall for her assistance in preparing this article.