The Federal Court’s full bench issued its unanimous decision on Tuesday, saying the duty of care should not be imposed on Environment Minister Sussan Ley, with the three justices offering several reasons for their decision.
Chief Justice James Allsop said liability should not be imposed, in part because the minister’s lack of control over the damage caused by climate change by her decisions far outweighed the “tiny contribution to the overall risk of damage climate change” of these decisions.
“The lack of proportionality between the small increase in risk and the lack of control, and liability for all damage caused by heatwaves, bushfires and sea level rise to all Australians under 18 in the future, means that tort duty should not be imposed,” Allsop said.
In a statement, Ley welcomed the decision and said the government would closely review the ruling. “The Morrison government remains committed to protecting our environment for current and future generations,” the statement added.
Tuesday’s decision follows a landmark Federal Court ruling in May 2021 that the federal environment minister had a duty to consider young people before approving an extension of the Whitehaven Vickery coal mine in New -South Wales.
The case was brought by eight Australians under the age of 18, including Melbourne teenager Anjali Sharma and sister Marie Brigid Arthur, who acted as legal guardian.
In July 2021, the judgment was extended to apply to all children, not just claimants, further increasing pressure on the government to consider the risks to future Australians when it approved new coal projects.
Outside the Federal Court in Sydney on Tuesday, Sharma, the lead litigator in the case, said she was “devastated by the ruling and so, so angry”.
“Today’s Federal Court may have accepted the Minister’s legal arguments rather than ours. But that doesn’t change the minister’s moral obligation to take action on climate change and protect young people from the harm it will cause. It doesn’t change the science,” the 17-year-old told reporters. “It doesn’t put out fires or drain flood waters.”
“Our lawyers will review the judgment, and we will have more to say about possible next steps in the coming weeks, but what I can say today is that we will not stop in our fight for justice. climate.”
Amanda McKenzie, chief executive of the Climate Council, said the decision was disappointing, but the children succeeded in bringing more attention to an important issue.
“You need a drumbeat, if you will, of information and people saying, ‘That’s not right. And I feel like the young people who pushed this case, they really created a moment to bring people’s attention to what climate change means for young Australians. And I think that was really valuable,” she said.
The children’s first legal victory did not stop the government from approving the extension of the Whitehaven Vickery coal mine. The project was approved in September and will see an open pit coal mine developed in northwestern New South Wales.
The appeal was heard by Allsop, Judge Jonathan Beach and Judge Michael Wheelahan.
In the decision by Allsop, Beach concluded that the Minister of the Environment should not be held liable, in part because there was not “sufficient proximity and closeness between the exercise of statutory power by the Minister and the likely risk of harm to the respondents and the class which they represent.”
Wheelahan said the duty of care “does not fit” the minister’s role under the Environmental Protection and Biodiversity Conservation Act.