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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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