By Lucy Glover
Earlier this month, the full Federal Court of Australia unanimously held against a duty of care owed to Australian children by the Commonwealth Minister for the Environment when exercising power under the Environment Protection and Biodiversity Conservation Act (‘EPBC Act’) to approve the extension of the Vickery coal mine in New South Wales.[1]
In 2021, the case was heard in the Federal Court and presided over by Justice Mordecai Bromberg, who found a duty of care exists. The applicants in the case were eight Australian children (‘the Children’) who were represented by their litigation representative Sister Marie Brigid Arthur in the proceedings as they were underage.[2] The first respondent was the Commonwealth Minister for the Environment (‘the Minister’), who is responsible for administering the EPBC Act. The second respondent, Vickery Coal Pty Ltd, operates a coal mine in New South Wales and proposes to substantially extend this mine. Justice Bromberg declared that the Minister owes the Children a duty of care under the tort of negligence in her decision making on the expansion of the Vickey mine. Although, this historic decision was subject to appeal and has since been overturned.
Upon allowing the appeal, Allsop CJ and Beach and Wheelahan JJ exposed Bromberg’s judgment as “a judicial frolic”.[3] In making his decision upon the threat of climate change and global warming, Bromberg’s judgment was dismissed by the court, as this matter was “not in dispute between the parties in this litigation”.[4]
There were three key considerations outlined in the judgments to find no duty of care was owed to the Children by the Minister.
1. Duty of Care
The tort of negligence requires a duty of care to be owed, with regard to the reasonable foreseeability of the risk and relevant salient features. To establish such a duty, the Minister must owe the Children a duty to take care in her decision to extend the Vickery mine. This was initially found by Bromberg J, which bound the Minister to protect Australian children from the physical harms of climate change occurring from the approval of coal projects.[5] It was decided by applying the salient features of the common law that the duty of care was reasonably foreseeable by the Minister.[6] This decision created a novel duty of care.[7]
Not often founded in the Federal courts, Beach J considered that “it is for the High Court to engineer new seed varieties” for novel duties of care, rather than the lower courts.[8] In saying this however, Beach J’s obiter grants the possibility for an appeal of their decision in the High Court to construct a novel duty. His own judgment held that the relationship between the Minister’s power and the likeliness of harm to the Children lacked sufficient closeness or directness, finding no duty of care.[9]
Chief Justice Allsop similarly found that there was a “lack of causally connected foreseeable harm” in the Minister’s approval of the Vickery mine extension.[10] Justice Wheelahan was also “not persuaded” that the potential personal injury to the Children, required under tort law for negligence, posed by the approval of the Vickery mine project was reasonably foreseeable.[11] As the mining of coal from this site contributed a small overall risk, it is not a substantial cause of future global warming and was considered inappropriate for the imposition of a novel duty of care.
2. Policy Considerations
Justice Bromberg’s decision was overturned unanimously on Constitutional grounds. Due to the principle of the separation of powers, which distributes power between the Executive, Parliament and the Judiciary, the Federal court is unable to make policy considerations in judgments.[12]
Given the environment and climate change are core government policy considerations, for the court to make a ruling on such matters would contravene the doctrine of separation of powers. The full court found that imposing a duty of care on a matter of high public policy was unsuitable for judicial determination. By allowing Bromberg J’s ruling to stand, this “would have required changes to government policy”.[13] The danger in this is that by the Judiciary engaging in consideration of a duty of care on a core policy issue, this allows citizens who are dissatisfied with the Executive and Parliament to bypass these institutions and turn solely to the courts for justice. We “rely on elected government to develop and implement wise policy in the interests of all Australians” and by circumventing this procedure, unelected judges then decide the governmental policy we must abide by.[14]
While immediate climate action is required, the place for this is not in the courts. To do so undermines the foundations of Australia’s responsible democratic government.
3. Statutory Purpose of the EPBC Act
Unlike Bromberg J, the full Federal court has held that the impugned duty of care is inconsistent with the statutory purpose of the EPBC Act.[15] The disparity between the initial judgment and the appeal decision was whether the Children’s safety is an implied mandatory consideration for the Minister’s exercise of power under ss 130 and 133 of the EPBC Act. However, as Wheelahan J indicates, the EPBC Act does not “erect or facilitate” a relationship between the Minister and the respondents.[16] Such consideration to care for the Children is not supported by the text, context or purpose of the EPBC Act.[17] So by imposing a duty of care, there would be incoherence between the duty owed to the Children and the Minister’s ability to discharge her statutory functions.
Implications of the decision?
If the respondents are granted special leave to appeal to the High Court, the case may generate a novel duty of care in this area. While determined climate activists believe the High Court should “rewrite the law” in light of the risk such decisions pose on Australia’s future, the courts are an inappropriate avenue of redress for Australian citizens to hold the Government accountable for the effects of climate change.[18] Also, given the full court ruling was unanimous, “it could be difficult for the Children to appeal the court decision”.[19] While the Federal court recognises the risks of climate inaction, it is unable to act on policy. Our future depends upon this fight for environmental protection and it should certainly not end here.
References
[1] 1999 (Cth) ss 130, 133.
[2] Sharma by their litigation representative Arthur and Others v Minister for the Environment (Cth) and Another (2021) 391 ALR 1, 4 [35].
[3] Michael Pelly, ‘Appeal Decision Exposes Judicial Frolic’ (2022) The Australian Financial Review 1, 8.
[4] Minister for the Environment v Sharma [2022] FCAFC 35, 11 (‘Sharma’).
[5] ‘Sharma Appeal Decision: End of the Road for Novel Duty of Care?’, Corrs Chambers Westgarth (Web Page, 16 March 2022) < https://www.corrs.com.au/insights/sharma-appeal-decision-end-of-the-road-for-novel-duty-of-care#:~:text=The%20effect%20of%20the%20first,care%20owed%20to%20young%20people>.
[6] ‘Liability and Climate Change Litigation: The Landmark Decision of Sharma v Minister for the Environment’, Russell Kennedy Lawyers (Web Page, 3 August 2022) < https://www.russellkennedy.com.au/insights-events/insights/liability-and-climate-change-litigation-the-landmark-decision-of-sharma-v-minister-for-the-environment>.
[7] Sharma (n 4) 97 [213].
[8] Ibid 229 [754].
[9] Ibid 136 [362].
[10] Ibid 121 [295].
[11] Ibid 231 [757].
[12] Australian Constitution, chs I, II, III.
[13] ‘Children’s Climate Change Case Overturned on Appeal as Federal Court Dismisses Government’s ‘Duty of Care’’, ABC News (Web Page, 15 March 2022) < https://www.abc.net.au/news/2022-03-15/federal-court-judgement-on-climate-change-government-doc/100909214?fbclid=IwAR0l0U8hxAQVbWoSDsbOGZMiAfAX9c-bKlD0S_Ti2h7oQwNhjV4P78hQgxg> (‘ABC News’).
[14] Sharma (n 4) 132 [344].
[15] ‘No ‘Duty of Care’ but Risks of Climate Litigation Continue to Grow – Insights from the Sharma Decision’, Gilbert + Tobin (Web Page, 21 March 2022) < https://www.gtlaw.com.au/knowledge/no-duty-care-risks-climate-litigation-continue-grow-insights-sharma-decision>.
[16] Sharma (n 4) 231 [757].
[17] Ibid 191 [590].
[18] ‘In the Sharma Decision the Federal Court Says: We See the Climate Risk but Cannot Act’, The Guardian (Web Page, 16 March 2022) < https://www.theguardian.com/commentisfree/2022/mar/16/in-the-sharma-decision-the-federal-court-says-we-see-the-climate-risk-but-cannot-act>.
[19] ABC News (n 13).
Lucy Glover is a second year Juris Doctor student with a keen interest in the intersection of equity and the law. Following her law degree, Lucy aims to contribute to international human rights laws and meaningful commercial transactions. Lucy is a cellist and completed a Bachelor of Music in 2020.