In May 2021, in what was described as a worldwide landmark judgment, the Federal Court ruled that the minister for the environment had a duty of care to protect children from harm resulting from the impacts of climate change. However, the government succeeded in winning an appeal to the full bench of the Federal Court, overturning this decision.

Sharma case brought by teenagers against coal mining company

Known as the Sharma case, it was brought by eight teenagers, represented by an 86-year-old nun, against Whitehaven Coal, which was seeking to expand its coal mine in northern New South Wales.

Specifically, the judge found that the Minister for the Environment owed Australian children a novel duty of care at common law from harmful climate change implications of exercising her powers under the Environment Protection and Biodiversity Conservation Act 1999.

Despite the court finding the minister did have a duty of care to children over climate change which could be "catastrophic", it did not grant the children's application for an injunction to stop the coal mine expansion.

Minister Sussan Ley promptly approved the coal mine expansion and launched an appeal against the court ruling that the government had a duty of care to the children when considering matters which could exacerbate climate change. (See Government cannot ignore impact of climate change on children when approving coal mine expansion.)

Appeal rules government can ignore impacts of climate change on future generations

In March 2022, the Full Bench of the Federal Court overturned this decision, finding that it was not the place of courts to set policies on climate change. The court ruled that decisions on what to do about the impacts of climate change rest with the elected representatives in government.

The appeal judges stuck closely to findings of law. They found there was no "duty of care" relationship between the minister and children under existing environment legislation, that there would be "incoherence" if a minister had to consider a duty of care to children while performing their ministerial functions, and that it was not foreseeable that an expansion of a coal mine would cause the children personal injury, as the law is understood.

The ruling effectively allows the government to ignore the impact its environmental decisions may have on future generations, which was highly disappointing to the children involved in the Sharma case and to climate campaigners.

What is a duty of care and does the government owe it to us?

The finding of the Full Bench of the Federal Court is not necessarily consistent with the development of the concept of duty of care under the common law.

At common law, a duty of care is an obligation to take reasonable steps not to cause foreseeable harm to another person or their property. At the very least, duty of care is a moral obligation not to harm others.

At the community level, duty of care may be considered a formalisation of the social contract: the implicit responsibilities held by individuals towards others within society.

Prime Minister Scott Morrison has often told Australians that the primary duty of the government is to keep us safe and secure.

It is probably not unreasonable to expect that the environment minister has at least a moral obligation not to harm future generations by permitting conduct that will pollute the atmosphere, contribute to global warming and eventually kill people.

Litigation over impacts of climate change and duty of care on the rise

The appeal judges did not dispute the original court finding about the very real dangers of climate change and its harmful effect on children and future generations. They rejected the government argument that these effects were exaggerated.

This is not the end for climate change cases in Australia, nor overseas, where there is also a marked rise in climate change litigation. The Sharma case may be appealed to the High Court. There are also several ongoing legal actions against companies brought by people affected by mining and gas exploration.

Almost daily companies and authorities face court action demanding damages for failure in their duty of care. It could be something as seemingly innocuous as a slip on a banana in a shop, tripping on a loose cord in an office, getting caught in a bus or train door or having an accident on a building site. It is therefore not unimaginable to expect an increase in climate change duty of care litigation.

In deciding to fight this particular case, the government was probably averse to having a legal ruling on the books that it has a duty of care to children.

Imagine a whole generation suing a government minister for failing in their duty of care. It may well come to this in future.

Michael McHugh
Environmental law, planning and protection
Stacks Law Firm

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