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Tag: Australia

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Daniel Billy et al. v Australia

Date: 22 September 2022

Court: United Nations Human Rights Committee

Citation: Views adopted by the Committee under Article 5 (4) of the Optional Protocol, concerning Communication No. 3624/2019

Short summary 

The indigenous minority group of four low-lying islands in the Torres Strait region, one of the most vulnerable populations to climate change impacts, filed a petition against the Australian government alleging a violation of articles 2, 6, 17, 24 and 27 of the International Covenant on Civil and Political Rights (ICCPR) due to Australia’s failure to implement measures for mitigation and adaptation to climate change, threatening habitability on the islands and displacement of the Torres Strait Islanders. In finding a violation of articles 17 and 27, the Committee requires Australia to make full reparation to individuals, providing adequate compensation, engaging in meaningful consultation with affected communities for assessment and continue implementing strategies for the safe existence of the islands and their inhabitants.

Summary by: Irene Sacchetti

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

Though not legally binding, for the first time the Committee ascertains State’s responsibility for climate inaction leading to a violation of multiple rights, including cultural rights under the ICCPR.

Key facts 

The petitioners’ claims were based on Australia’s failure to implement adaptation strategies (e.g., infrastructure such as sea walls) and mitigation measures to reduce GHG emissions to combat adverse climate change impacts. They argued that sea level rise — already causing coastal erosion – flooding, and the destruction of marine ecosystems and resources all result in violations of Islanders’ rights to life and a healthy environment (article 6), home (article 17), practice cultural traditions on ancestral land (article 27) and intergenerational equity (article 24).

Citing the Teitiota decision, Australia responded that the petitioners “invoke a risk that has not yet materialized” and that “the State party is taking adaptation measures in the Torres Strait, thus rendering the harm invoked by the authors too remote to demonstrate a violation of the right to life.”

The Committee was asked to determine whether Australia violated the Covenant by failing to implement adaptation and/or mitigation measures to combat adverse climate change impacts within its territory resulting in harms to the authors’ rights.

Previous instances 

None: The petitioners’ rights under the ICCPR are neither protected by the Australia Constitution nor other domestic legislation – and the highest Court in Australia has ruled that the state have a duty of care to prevent environmental harm – so this was a case of first impression before the Committee.

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Minister for the Environment v Sharma [2022] FCAFC

Date: 15 March 2022 

Court: Federal Court of Australia (intermediate appellate court) 

Citation(s): Minister for the Environment v Sharma [2022] FCAFC 35 

Short summary

In May 2021, The Australian Federal Court found that the Federal Environment Minister has a novel duty of care to prevent harm to young people as a result of climate change. After the Australian government’s appeal, the Full Federal Court now unanimously holds that the Minister for Environment of Australia does not owe a duty of care to Australian children to avoid causing personal injury or death. 

Summary by: Nicole Gasmen

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision sets aside orders 1 and 3 in Sharma by her litigation representative Sister Marie Brigid Arthur v. Minister for the Environment [2021] FCA 560. It is binding in Australia courts.  

Key facts 

See: https://legal.earthrefuge.org/sharma-v-minister-for-the-environment/  

Previous instances  

In July 2021, the Federal Court of Australia held that the Australian Minister for Environment owed a novel duty of care to Australian children under the Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act).  

This duty required the minister to take reasonable care to avoid causing personal injury or death to all Australian children at the time of the proceeding via the carbon dioxide emissions of the Vickery Extension coal project. The minister appealed the decision, and the Full Federal Court heard the appeal in October 2021. 

Summary of holding 

  • The Full Federal Court held unanimously (Chief Justice Allsop, Justice Beach, and Justice Wheelahan) that the novel duty of care to avoid causing personal injury or death should not be imposed on the Minister for Environment. Each justice wrote separately. 
  • Chief Justice Allsop reasoned that the duty of care should not be imposed because: 
    • The character of this matter is not appropriate for the judiciary; it should be left to lawmakers. (¶¶ 248-253) 
    • The duty of care was inconsistent with the EPBC Act because it is not primarily concerned with the protection of the environment or response to global warming. (¶ 101) 
    • The Minister of Environment lacks control over the harm of climate change and of climate-related disasters such as brushfires and heatwaves. Due to the lack of determinacy of the direct cause of these climate events, the Minister lacks liability for damages caused by such brushfires, heatwaves, and rising sea levels, not to mention damages ongoing into the future. (¶¶ 341-343) Further, the children who brought the case lack legal special vulnerability. (¶¶ 338-341) 
  • Justice Beach reasoned that the duty of care should not be imposed because: 
    • “There is not sufficient closeness and directness between the Minister’s exercise of statutory power and the likely risk of harm to the respondents and the class they represent.” (¶¶ 362-363) 
    • Imposing a duty would result in indeterminate liability. (¶ 702) 

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Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560

Date of judgement: 27 May 2021

Court: Federal Court of Australia

Citation(s): [2021] FCA 560

Short summary

The Australian Federal Court found that the Federal Environment Minister has a novel duty of care to prevent harm to young people as a result of climate change. Despite this finding, the Court did not issue an injunction to prevent the Australian government from extending a coal mine.

Summary by: Erin Gallagher

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

This decision of the Federal Court bears significant weight in the Commonwealth of Australia.

Key facts

The applicants were eight Australian school children, and a catholic nun who acted as their representative. They brought the claim on behalf of themselves but also other children residing in Australia. 

The applicants made two claims against the Environment Minister. Firstly, they sought a declaration that a duty of care is owed by the Minister under the law of negligence and secondly, they argued that the Minister would be failing to exercise this duty of care if she approved a pending application from the Vickery coal mine to extract an additional 33 million tonnes of coal from a mine that had been set up and operated by Whitehaven, Vickery’s parent company. They therefore sought an injunction to restrain an apprehended breach of that duty.

The Minister is responsible for administering the Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) and one of its purposes is providing for protection of the environment. Under the Act, the extension of the Vickery Coal mine would be prohibited unless the Minister approves the project under s130 and 133 of the Act. 

If approved, the increased extraction would result in an estimated 100 million tonnes of additional CO2 emissions. The applicants argued that children were particularly vulnerable to the effects of climate change and more likely to live through any future impacts caused by such emissions. 

The Applicants provided evidence from the IPCC and other expert climate scientists to demonstrate CO2 emissions will contribute to the increasing global temperature, and that there are devastating impacts resulting from this temperature increase. The Minister did not dispute this evidence. 

The applicants claimed that the additional 100 million tonnes of CO2 will contribute to the global increase in temperature. The Minister argued that the additional CO2 would be within the Paris Agreement’s budget.  

The Minister also argued that there is no such duty of care, and that recognition of one would impair her statutory task under the EPBC Act. She also denied that any injury to the Children resulting from approval of the project is reasonably foreseeable. She further argued that if such a duty of care were recognised, there is no reasonable apprehension that the duty will be breached and thus no grounds to grant an injunction thus the proceedings should be dismissed. 

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Refugee Review Tribunal of Australia 1168 

Date: 10 December 2009  

Court: Refugee Review Tribunal of Australia

Citation(s): 0907346 [2009] RRTA 1168

Short summary 

Australia does not have an obligation to accept climate migrants with no fear of specific persecution in their home country as refugees under its domestic adoption of the Refugee Convention. 

Summary by: Lucas Robinson  

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

This decision of the Refugee Review Tribunal of Australia bears moderate weight in immigration cases in the Commonwealth of Australia. 

Key facts 

The applicant was a citizen of Kiribati who arrived in Australia in 2007 and applied for a Protection visa under §65 of the Migration Act 1958 in May 2009. The application was denied by a delegate of the Minister for Immigration and Citizenship in August 2009. 

The applicant claimed that the environmental and economic changes in Kiribati caused by rising sea levels made it impossible for him to earn a living there. In his application, he claimed that some of the islands in Kiribati had already disappeared, and saltwater was springing up through the ground and spoiling the drinking well water, as well as devastating food crops. The applicant’s health had been directly impacted because of the loss of food crops on Kiribati.  

The applicant submitted that these impacts on him constituted persecution that should trigger protections under the 1951 Refugee Convention and the Migration Act 1958.  

Previous instances

The application for review by the RRTA was sought after the decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Protection Visa under §65 of the Migration Act 1958. 

Summary of holding 

The RRTA affirmed the Minister’s decision not to grant the applicant a Protection Visa, finding that in the absence of a discriminatory motivation, Australia’s protection obligations were not triggered. The Tribunal held found that the continued production of carbon emissions that cause climate change is not sufficient to constitute persecution under the Refugee Convention as there was no evidence that the persecution the applicant was fearing was occurring because of his membership to any particular group (or any other protected ground for refugee status). People affected by climate change were not recognized as a cognizable group of people in need of protection. Because the applicant was not part of a particular group, he did not fit the convention definition of a refugee. 

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Hagi-Mohamed v Minister for Immigration & Multicultural Affairs [2001] FCA 1156

Date of judgement: 23 August 2001

 Court: Federal Court of Australia

Citation(s): [2001] FCA 1156

Short summary 

The Federal Court of Australia confirmed that internal relocation must be considered separately from the question of whether a well-founded fear of persecution exists in evaluating claims for protection under the 1951 Refugee Convention.

Summary by: Joseph Lavelle Wilson            

Link to original judgement 

Click here to open the case in PDF format

Weight of decision

This decision of the Federal Court bears moderate weight in the Commonwealth of Australia. 

Key facts

Ahmed Dahir Hagi-Mohamed, a citizen of Somalia, arrived in Australia on 15 September 1995. He filed an application for a protection visa under s. 36 of the Australian Migration Act 1958 (Cth) in November 1995, claiming that the Australian government had an obligation to protect him under the Convention Relating to the Status of Refugees 1951 (the Convention). The basis of his application was that he had a well-founded fear of persecution in his home country of Somalia, due to his membership of several social groups. 

Hagi-Mohamed claimed that he was a member of the particular social group (that of homosexual men), as well as a member of two clans – the Geledi clan and the Hawadle clan.

Previous instances

The Minister for Immigration & Multicultural Affairs and the Refugee Review Tribunal (RRT) rejected the application for protection. The RRT accepted that each group identified by Hagi-Mohamed was in fact a particular social group, and that he belonged to each one. The RRT found that the motivating reason for the persecution of Geledi clan members by Somalian militias was to take resources from the Geledi clan, specifically arable land and crops, rather than for the reason that they were members of the Geledi clan. The RRT also found that Hagi-Mohamed’s association with his mother’s clan, the Hawadle, did not put him at risk of persecution because there was evidence that other parts of Somalia were controlled by the Hawadle and he could be safe there. With respect to Hagi-Mohamed’s claim based on his homosexuality, the RRT found that although he did belong to the cognisable social group, that group did not face danger rising to the level of persecution under the Convention.

Hagi-Mohamed appealed to the Federal Court of Australia. Justice Stone issued a decision in favour of the government, which was subsequently appealed by Hagi-Mohamed and heard by Justices Wilcox, Weinberg, and Hely in the Federal Court of Australia. 

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