Previous Instances
The application for declaratory and injunctive relief was brought directly to the Federal Court of Australia.
Summary of holding
The Federal Court held that the Australian government owed a duty of care to children to take reasonable care to prevent harm from climate change. The Court held that there was a real risk of harm for Australian children due to the increase in global temperature caused by climate change, and accepted that the Vickery coal expansion project would contribute to this increase in temperature. However, the court did not issue an injunction preventing the approval of the expansion.
The Court made the following significant points in its judgement:
- Foreseeability of harm grounded in strength of evidence. With reference to extensive scientific evidence, the Court detailed the ‘severe harms’ that will be faced by Australian children if this global temperature increase continues and reaches levels of more than 2°C to 4°C above pre-industrial levels. The Court found there was real foreseeable risk of these harms materialising, therefore ‘by reference to contemporary social conditions and community standards, a reasonable Minister for the Environment ought to have the Children in contemplation when facilitating the emissions.’ (para. 491).
- Novel duty of care established. The severe harms were a key factor in ruling that there is a novel duty of care – the Environment Minister owes a duty of care to young people to prevent harm as a result of climate change. The Court stated that this duty of care imposes an obligation on the Minister to take reasonable care to avoid personal injury to the children (paras 490-491).
- The duty of care requires consideration of impacts, but does not prevent the Minister from approving projects that cause climate change. The Court did not grant the injunction on expansion of the mine, because the applicants had not established that it was probable that the Minister would breach the duty (para. 510). The Court did state that the Minister must consider the impacts of climate change on young people when deciding whether to approve expansion of the coal mine, and must justify why any expansion of the coal mine is acceptable (para. 502).
- The duty of care is limited to personal injury and death. This duty of care applies to personal injury and death, but does not extend to property damage or economic loss because this broader duty of care would infringe on the broad discretion granted to the Minister under the EPBC Act (para. 416).
- “Innocence” of children relevant to relationship between parties. The Court also considered the ‘innocence’ of Australia’s children. Justice Bromberg commented that ‘they bear no responsibility for the unparalleled predicament which they now face. That innocence is also deserving of recognition and weight in a consideration of the relationship between the children and the government they look to for protection.’ (para. 312)
Potential takeaways for future climate migration litigation
- Novel duty of care established in Australian jurisdiction. This landmark case establishes that the Australian government has a duty to take reasonable care to prevent harm to Australian children as a result of climate change. While this duty was recognized in the context of a Minister’s decision on a pending application for an expansion of a coal mining operation, it may be applied in a range of other contexts both in Australia and internationally.
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