A little more on the reasons for the federal court’s decision to overturn a judgment that the environment minister has a duty of care to protect young people from the climate crisis.
The decision was unanimous, but the three justices who made it had, in their words, “different emphases as to why this conclusion should be reached”.
A key point is that the chief justice, James Allsop, said that nobody involved in the case disputed evidence that was heard about climate change and the “dangers to the world and humanity, including to Australians, in the future from it”.
The environment minister, Sussan Ley, had submitted in her appeal that some of the initial findings by justice Mordecai Bromberg were incorrect and reached beyond evidence. The full court unanimously found that this was unfounded, and that all of Bromberg’s findings were “open to be made” based on the uncontested evidence he had heard.
But the three justices that heard the appeal also unanimously found that a duty of care should not be imposed on the minister.
Allsop said this was because court processes were unsuitable to determine matters of high public policy, that imposing a duty of care would be inconsistent with national environment laws and that the minister’s level of climate-related liability in approving a project was indeterminate and proportionally tiny.
Justice Jonathan Beach found a duty of care should not be imposed as there was not “sufficient closeness and directness” between the minister’s decision to approve the coal mine extension and the risk of harm to the teenagers and other young people, and that her level of liability about future climate change could not be determined.
Justice Eugene Wheelahan found national environment laws did not recognise a relationship between the minister and the teenagers to support the case she has a duty of care. In particular, Wheelahan said, “the control of carbon dioxide emissions, and the protection of the public from personal injury caused by the effects of climate change,” were not responsibilities of the minister under the legislation.
Wheelahan also found it would not be feasible to establish what an appropriate standard of care meant, and that it was not “reasonably foreseeable” that the approval of the coal mine extension would cause personal injury to the teenagers or to the future generations they represent.