Federal Court overturns landmark climate change duty of care ruling

Federal Environment Minister Sussan Ley is “committed to protecting the environment for current and future generations”, despite a court ruling the Minister does not have a duty of care to protect young Australians from harm caused by climate change.

The full bench of the Federal Court on Tuesday unanimously overturned a decision in favour of eight teenagers who brought a class-action to prevent Ley from approving a proposal by Whitehaven Coal to expand the Vickery coal mine in Northern NSW.

In a statement, a spokesperson for Ley said she takes her role as the Environment Minister “seriously” and welcomes the decision of the full Federal Court, where all three judges allowed the appeal.

“The Morrison Government remains committed to protecting our environment for current and future generations. The Government will now closely review the judgement,” the statement said.

The students, supported by 87-year-old nun Sister Brigid Arthur, have not ruled out further legal action and said they would consider an appeal to the High Court.

The group argued the mine expansion, which could lead to an extra 100 million tonnes of carbon dioxide, would endanger their future by causing them “injury, ill-health and economic losses”.

In May 2021, Justice Mordecai Bromberg did not grant the injunction, but found the minister did have a duty of care to not cause future harm to young people in regards to the mine expansion.

On Tuesday, Justices James Allsop, Jonathan Beach and Michael Wheelahan ruled in favour of Ley’s appeal that a duty of care should not be imposed, but all gave different reasons for their decision. They included that the protection of the public from personal injury caused by the effects of climate change was not the responsibility of the minister under Australia’s environment laws.

However Chief Justice Allsop remarked that the considerable evidence presented to the court about the dangers of climate change was not disputed.

One of the students in the matter, 17-year-old Anjali Sharma said the judgement was devastating” and shot down Chief Justice Allsop’s assertion that Ley only had a “tiny” amount of control and responsibility when looking at emissions.

“The Federal Court today may have accepted the minister’s legal arguments over ours, but that does not change the minister’s moral obligation to take action on climate change and to protect young people,” Sharma told reporters.

“It does not change the science. It does not put out the fires or drain the flood waters. We will not stop in our fight for climate justice. The world is watching.”

David Barnden, the lawyer representing the teenagers, said the decision was “disappointing” and would now consider whether to seek leave to appeal in the High Court.