Commonwealth’s climate change duty of care rejected on appeal

Minister for the Environment v Sharma [2022] FCAFC 35

The duty of care formulated by the primary judge that the Commonwealth Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act or the Act) had “a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649, to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere” was set aside on appeal.

The reasons are extensive, but the summary by Allsop CJ is instructive:




1    The threat of climate change and global warming was and is not in dispute between the parties in this litigation. The seriousness of the threat is demonstrated by the attention given to it by many countries around the world, and the attempts made by them to reach agreement and to co-operate to reduce the emission of carbon dioxide and other greenhouse gases in order to reduce the rate of increase of the Earth’s surface temperature. Those steps of international diplomacy and international co-operation in scientific matters, including research, have had the consequence that many countries and constituent political parts of countries have adjusted national and regional policy to meet the recognised threat. The debate over the appropriate steps to take at a national and international level has not been without its international and national political controversy.

2    At the outset it is important to appreciate the nature of the proceeding and the basis upon which the case was fought. The evidence led by the respondents (applicants before the primary judge) was not challenged by the appellant, whether by cross-examination or by the leading of contrary or supplementary evidence. This is a matter of some importance. It should not be seen merely as a strategic or tactical choice in a piece of inter partes litigation. This was not a demurrer procedure where the applicants’ case was to be taken at its highest for the purposes of striking out the claim. Evidence was led, on a final basis. Some objections were taken and ruled upon. There was no cross-examination. The appellant is the Minister for the Environment. The Minister is not any litigant. She is the Minister of the Commonwealth responsible, with her Department, for the very type of issue with which the Court was concerned and to which the evidence was directed. There are challenges to some of the primary judge’s findings (which should be rejected), but, by and large, the nature of the risks and the dangers from global warning, including the possible catastrophe that may engulf the world and humanity was not in dispute.

3    The Minister is responsible for decision-making under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act or the Act). In the discharge of these responsibilities, the Minister is responsible to Parliament (and thereby the Australian people) for the decisions made and the policies implemented in the execution of the laws of the Parliament. The Minister’s decision-making is also subject to judicial review by the courts (the High Court of Australia under s 75(v) of the Constitution and the Federal Court of Australia under, at least, s 39B(1) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth)) for the legality of the decision-making, and of the decisions made, by her. That simple, but basal, structure of responsible and representative parliamentary democracy in which the Executive is subject to the rule of law rooted in s 75(v) of the Constitution and is responsible to the Australian people through Parliament is an important part of the context for the claim. That claim is that apart from, indeed quite distinct from, the subjection to scrutiny for the lawfulness of the decision, the Minister has a personal duty, for breach of which she (and also the Commonwealth), may be found to be personally liable in damages, to take reasonable care, in the execution of her particular duties, powers and functions under ss 130 and 133 of the EPBC Act to avoid causing personal injury or death to all persons who were less than 18 years of age and ordinarily resident in Australia at the time of the commencement of the proceeding in this Court arising from emissions of carbon dioxide into the Earth’s atmosphere. Further, in so finding such a duty of care, the primary judge concluded that human safety was a distinct implied mandatory consideration in the decision about a controlled action that might endanger human safety, to be implied from the subject matter, scope and purpose of the EPBC Act.

4    In setting out at the outset the basic constitutional position of the Executive and the role of the Judiciary in pronouncing upon the legality of Executive decision-making, the potential liability of the Commonwealth and its officers in tort is to be recognised, as it is by s 75(iii) of the Constitution. Section 64 of the Judiciary Act recognises that in a suit to which the Commonwealth or a State is a party the rights of parties shall as nearly as possible be the same as in a suit between subject and subject. The law of torts applies to Ministers and the Commonwealth, as much as it applies to ordinary persons or companies. The “aspiration to equality” in s 64 (to use the words of Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at 556 [12]) recognises within itself that “perfect equality is not attainable”: Gleeson CJ (in the same paragraph)). The nature and responsibilities of government are relevant to the operation of legal principle, here in determining whether a duty of care to avoid personal injury or death is to be recognised. The subjection of governments and public authorities, including Ministers of the Crown, to the rule of law encompasses not only the requirement of legality under s 75(v) of the Constitution, but also liability for tortious wrongs ascertained in accordance with the application of principle under the common law.

5    The EPBC Act takes its place within the federal structure under which the Commonwealth and the States and Territories have co-ordinate, and to a degree overlapping, responsibility and authority in relation to the environment. The EPBC Act, for its own part, is founded in significant part on the translation of international agreements into Commonwealth law. In this regard, it is important to keep in mind that there has been no attempt by the Commonwealth Parliament to translate those international agreements concerning climate change, in particular the Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 162 (entered into force 16 February 2005) or the United Nations Framework Convention on Climate Change (UNFCCC) Paris Agreement 2015 (Paris Agreement) into Commonwealth law. In 2011, Parliament did legislate in relation to climate change issues, the central component being the Clean Energy Act 2011 (Cth). This legislation was repealed on 1 July 2014: Clean Energy Legislation (Carbon Tax Repeal) Act 2014 (Cth). See also the National Greenhouse and Energy Reporting Act 2007 (Cth); Australian National Registry of Emissions Units Act 2011 (Cth); Australian Renewable Energy Agency Act 2011 (Cth); Clean Energy Finance Corporation Act 2012 (Cth); Greenhouse and Energy Minimum Standards Act 2012 (Cth); and Product Emissions Standards Act 2017 (Cth).

6    Before the time of the hearing of the appeal, but after the primary judge’s decision and orders, the Minister made a decision and granted approval. There was discussion at the hearing as to whether the Court should receive the decision and any reasons. This course was opposed by the respondents. The Court did not receive this material.

The conclusion of the appeal in summary form

7    For the reasons that follow the Minister’s appeal against the imposition of a duty of care in the terms articulated and against the conclusion that human safety was an implied mandatory statutory consideration should be upheld. The latter implication cannot be derived from the EPBC Act. The primary judge’s conclusions in this respect were not sought to be supported by the respondents. The imposition of the duty should be rejected. First, the posited duty throws up for consideration at the point of breach matters that are core policy questions unsuitable in their nature and character for judicial determination. Secondly, the posited duty is inconsistent and incoherent with the EPBC Act. Thirdly, considerations of indeterminacy, lack of special vulnerability and of control, taken together in the context of the EPBC Act and the nature of the governmental policy considerations necessarily arising at the point of assessing breach make the relationship inappropriate for the imposition of the duty. These conclusions reflect differences of view that I have with the evaluative judgments of the primary judge in a field of contention, the imposition of a duty of care in novel circumstances, that is not without difficulty. The primary judge considered and dealt with the arguments of the respondents and the Minister in a careful, thorough and clear body of reasons.

The duty and its framing and its calling forth core policy-making and considerations unsuitable for resolution by the Judicial branch of government

8    In their application at [2] and their concise statement at [22] the respondents sought to express the posited duty at a high level of abstraction: Whether the Minister owed the respondents and the children whom they represented a duty to exercise the power under ss 130 and 133 of the EPBC Act with reasonable care not to cause the respondents harm. The duty was said to arise out of positive action, not omission. Expressed at that high level of abstraction and divorced from concrete facts and referable to any decision under ss 130 and 133 it can be seen to be of little assistance. A postulated duty of care must be stated by reference to the kind of damage that a plaintiff will suffer: John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218 at 241–242 (Brennan J); Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 487 (Brennan J); Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 262–263 [13]–[16] (Gleeson CJ); Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 at 472–473 [1] (Gleeson CJ); see also Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at 345 [43]–[44] (Gummow J) and Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at 71 [47] (the Court).

9    The scope and content of the duty was illuminated by the expression of its anticipated breach in the concise statement at [23]: To exercise reasonable care not to cause the applicants harm by acting in a manner that materially contributes to increasing the minimum level at which carbon dioxide concentration can flatten. That expression of the matter, taken with the balance of the concise statement and the uncontested evidence presented, informs one that the duty concerns acting in connection with an approval of the extension of a coal mine in the light of the risks of global temperature warming and the consequent risks of harm to humans in the future caused by climate change, by not just the mining and transportation of the coal, but also by the emissions from the combustion of the coal mined from the extension of the mine.

10    The declaration made by the primary judge was in the following terms:

The first respondent has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649, to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.

11    That expression of the duty omits the express reference to “the material contribution to increasing the minimum level at which [carbon dioxide] concentration can flatten”. The primary judge’s reasons, however, demonstrate that such consideration is embedded within the duty declared and that such matter will be the very subject thrown up for consideration at the point of breach. Further, the duty as expressed in [23] of the concise statement, and the duty declared, is based on the evidence of the contribution of mining the coal to carbon dioxide emissions, not only by the activity of mining and transportation, but also by its combustion. This latter point becomes important as necessarily raising question of policy concerning so-called “Scope 3” emissions to which I will come.

12    The appropriate level of abstraction or focal length of perspective for the proper articulation of the scope and content of the duty is by reference to the whole of the asserted cause of action. As Brennan J said in John Pfeiffer v Canny 148 CLR at 241–242:

His duty of care is a thing written on the wind unless damage is caused by the breach of that duty; there is no actionable negligence unless duty, breach and consequential damage coincide … For the purposes of determining liability in a given case, each element can be defined only in terms of the others.

(emphasis added)

13    As Gleeson CJ said in Cole 217 CLR at 472–473 [1]:

The appellant, having suffered personal injuries, claims that the first respondent is liable to her in damages for negligence … In the circumstances of this case, it is of little assistance to consider issues of duty of care, breach, and damages, at a high level of abstraction, divorced from the concrete facts. In particular, to ask whether the respondent owed the appellant a duty of care does not advance the matter. Before she was injured, the appellant was for some hours on the respondent’s premises, and consumed food and drink supplied by the respondent. Of course the respondent owed her a duty of care. There is, however, an issue concerning the nature and extent of the duty. To address that issue, it is useful to begin by identifying the harm suffered by the appellant, for which the respondent is said to be liable, and the circumstances in which she came to suffer that harm … As Brennan J said in Sutherland Shire Council v Heyman, ‘‘a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered’’. The kind of damage suffered is relevant to the existence and nature of the duty of care upon which reliance is placed. Furthermore, a description of the damage directs attention to the circumstances in which damage was suffered. ‘‘Physical injury’’, or ‘‘economic loss’’, may be an incomplete description of damage for the purpose of considering a duty of care, especially where, as in the present case, the connection between the acts or omissions of which a victim complains and the damage that she suffered is indirect.

(emphasis added, footnotes omitted)

14    The importance of the articulation of the nature and extent or scope and content of the posited duty (here, illuminated by [23] of the concise statement and by the declaration made) is that, if one posits the duty by reference to the asserted breach and the closely related evidence led to reveal the risk of harm, in order to decide the questions of the existence of the duty and of breach one is necessarily taken to consider all the evidence, material, policy and other considerations that attend the decision and that involve the question of the proper response to, including the adequacy of governmental policy in relation to, the risks of the emissions from the combustion of the coal mined as part of the worldwide risks of global warming and climate change. If one leaves the duty expressed at the high level of abstraction in [2] of the application or [22] of the concise statement one might well respond: Yes of course, but what are the circumstances? Possibly (though the Minister’s submissions contest the proposition) there could be a duty upon the Minister faced with the question of an approval of a mine of some description or of some other controlled action near a centre of urban population to exercise reasonable care for the health and safety of the nearby residents in exercising the power to approve or not approve the mine or controlled action, and if the former, on what conditions. Considerations and dangers in such a case might be so direct, so well understood, so immediately proximate, and attended by considerations in respect of which the court was entirely suited to adjudicate.

15    The question of duty is not to be placed at such a level of abstraction or generalisation as to elicit such an unhelpful response as yes, but depending on the facts, thereby leaving the real controversy and contest to breach. The duty here, however, is framed by reference to contributing to carbon dioxide emissions into the atmosphere by the combustion of the coal mined. That duty throws up for consideration at the point of assessing breach the question of the proper policy response to climate change and considerations unsuitable for resolution by the Judicial branch of government. In particular, the duty throws up at the point of assessing breach the question whether, and if so, how so-called Scope 3 emissions from the combustion of the coal that is to be exported should be or should have been taken into account in making a decision about whether to approve the extension of a coal mine, when the statutory focus and concern of the decision is the protection of identified species and communities of fauna and water resources. A duty that calls up such questions should not be imposed: It is one of core, indeed high, policy-making for the Executive and Parliament involving questions of policy (scientific, economic, social, industrial and political) which are unsuitable for the Judicial branch to resolve in private litigation by reference to the law of torts and potential personal responsibility for indeterminate damages, if harm eventuates in decades to come.

16    Later in these reasons, I will refer to other parts of the judgment of Gleeson CJ and of other members of the High Court in Graham Barclay Oysters 211 CLR 540. It is appropriate, however, at the outset to set out what the Chief Justice said at 553–554 [6], which is, in my view, the central framing consideration in this case that transcends any distinction between acts and omissions:

Citizens blame governments for many kinds of misfortune. When they do so, the kind of responsibility they attribute, expressly or by implication, may be different in quality from the kind of responsibility attributed to a citizen who is said to be under a legal liability to pay damages in compensation for injury. Subject to any insurance arrangements that may apply, people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public. And, in the case of an action in negligence against a government of the Commonwealth or a State or Territory, they are inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government; conduct that may involve action or inaction on political grounds. Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction. Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost. Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature.

17    The central error of the primary judge, in my respectful view, was to marginalise such questions and considerations as a miscellaneous control mechanism and as not relevant (see J[474]–[485]), and to construct the duty by individual analysis of salient features commencing with the risk of harm, assuming the matters thrown up by the duty were suitable for judicial determination as in any other tort case. That was the approach urged on his Honour and on this Court by the submissions of the respondents (applicants below). The submissions went so far (at least before us) that, it was said, to hold that the duty should not be imposed because it raised core policy-making and involved considerations unsuitable for judicial determination would be to abrogate judicial responsibility under Chapter III of the Constitution to quell controversies between subject and government and to introduce a “political question” doctrine foreign to Australian Constitutional government and the rule of law within it. That submission should be rejected by reference to cases of the highest binding authority. That which follows, especially [206]–[272] and [291]–[293], is an elaboration and explanation of the above. The immanent and central proposition for the existence of a duty of care, based on the central thesis of Professor Steffen, is that science dictates that for the Minister not to endanger the Children requires a re-evaluation and change to any government policy on climate change that remains fixed within the parameters of the Paris Agreement and the treatment of Scope 3 emissions.

David Cormack

Brisbane Barrister & Mediator 

Related Posts

Recent Comments