The Full Federal Court of Australia (Full Court) has now released its much-awaited judgment in Minister for the Environment v Sharma.[1] For access to the judgment see here.
This was a ruling on an appeal from the Commonwealth Minister for the Environment (Minister) against a judgment of Bromberg J at first instance which had held that the Minister owed Australian children a duty to take reasonable care to avoid causing them personal injury (via climate change related harm) when deciding whether or not to approve the extension of the Vickery Coal Project, a coal mine in New South Wales.[2]
The judgment attracted significant attention in Australia (and internationally) because of the novel nature of the duty that had been found to be owed, and the potentially far-reaching consequences of this for decision-makers. More information on the background to the case and the primary judge's decision can be found here.
In what was a lengthy and detailed judgment, the Full Court unanimously rejected the imposition of the novel duty of care. Unless overturned on appeal, this judgment can be anticipated to limit the scope for climate-change related claims to be pursued in tort in Australia.
The Full Federal Court's Decision
The reasons given by the Full Court in rejecting the novel duty fall into three broad categories: policy, coherence with legislation, and conceptual difficulties in the application of the law of negligence to climate change.
Policy
The Full Court observed that the novel duty was inherently intertwined with core policy-making decisions which involved considering questions of a scientific, economic, social, industrial and political nature. The Court considered that these were fundamentally questions for the Executive and Parliament, and unsuitable for judicial determination.
Coherence
The decision which the Minister was required to make fell within statutory decision-making powers under the Environment Protection and Biodiversity Conservation Act 1999 (Act). At first instance, Bromberg J had found that it was consistent with the wider statutory scheme for the novel duty to be owed by the Minister when exercising this decision-making power.
The Full Court reached a different conclusion and considered that the duty would require considerations that went beyond the requirements of the Act. Further, that because of the potential for personal liability, it would change the "whole nature" of the decision to be taken if the novel duty was imposed "on top" of the Act. Accordingly, the Court considered that the imposition of a novel duty was inconsistent with the statutory scheme.
Conceptual difficulties
Conventionally, questions of duty, breach, causal relationship and damage are considered together in the law of negligence. But in this case, a duty was purporting to be imposed in circumstances where questions of breach, damage and causation were yet to arise. The Full Court considered that the level of generality and abstraction meant imposing a duty would be inconsistent with the principles of the law of negligence. It also considered that it made the potential scope of the duty faced by the Minister indeterminate.
In addition, the Court noted that the Minister lacked control over the harm caused by climate change (ie the decision could increase the risk of climate change by what the Court described as a "tiny" amount, but it would not prevent the dangers of climate change). It also considered that young Australians were not significantly more vulnerable to the effects of climate change than other groups of people. These were further factors which the Court considered militated against the imposition of a novel duty.
Where to from here?
The issues of principle and policy considered by the Full Court in this case are consistent with those considered recently by the New Zealand Court of Appeal in Smith v Fonterra (analysis of which can be found here).[3] These issues may be summarised as: how suitable a vehicle is tort law for addressing climate change?
Whilst the Full Court was careful not to "close the door" entirely on tort law having a role in relation to climate change in Australia (Justice Beach alluding to the possibility of the High Court "engineering new…sustainable duties of care"), the Full Court was as firm as its New Zealand counterpart in identifying the challenges faced by tort law as a vehicle for addressing climate change.
The judgment of the Full Court may be taken as a further indication that in common law jurisdictions, the role of the courts may primarily be one of supporting and enforcing the statutory scheme. There is already plenty of activity in this area, and we note that the High Court recently heard the high profile application brought by Lawyers for Climate Action in New Zealand seeking review of the advice provided to the government by the Climate Change Commission on emission reduction targets. This judgment is expected shortly.