Minister for the Environment v Sharma [2022] FCAFC 35: a novel duty of care?

Government Law, Insights

Established duties of care according to tort law include doctor to patient, employer to employee and teacher to student. It’s not too often courts look to expand or create new ones.

Minister for the Environment v Sharma was such a case.

 

Sharma

In 2016 then Environment Minister Susan Ley was deciding on an application to expand the Vickery Coal Mine in New South Wales. It was not challenged that the extension would directly or indirectly cause an increase in CO2 emissions.

In the wake of the Minister’s decision, a proceeding was brought by eight Australian children (by their litigation guardian) on their own behalf and all other Australian children, seeking:

    1. a declaration that a duty of care was owed by the Minister (to the Children); and
    2. an injunction to restrain the apprehended breach of that duty.

The Children argued that, if the extension were approved, the increased CO2 emissions would cause them injury (including psychiatric) due to bushfires, storm surges, floods, loss of species and ecosystems, food insecurity, and social/political unrest. Expert evidence on the projected effects on was uncontested at trial.

 

A novel duty of care?

The Children succeeded at first instance. Bromberg J found that the Minister would be personally liable in damages if, in the execution of her duties, she did not take reasonable care in the execution of her duties under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to:

“avoid causing personal injury or death to all persons under 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.”

 

Appeal

The Minister appealed the decision. The High Court unanimously rejected the duty, finding that:

    1. The Minister’s decision concerned high public policy, which was unsuited to a decision by the judicial branch.
    2. It was incoherent with the EPBC Act. Under the Act, the Minister was required to consider the impact of greenhouse gas emissions on threatened species, fauna, communities and water resources, but not specifically humans. The Minister was not in a protective relationship with the Children.
    3. The Minister had no control over the harm, given the indeterminacy of the other (global) factors at play, the type of harm and the class of people who could be harmed.
    4. Given the above, the harm was not reasonably foreseeable and causation was not made out.

Justice Beach commented that while the trial judge may have ‘planted the seed’ of a cause of action in finding the posited duty, it was for the High Court exclusively to ‘engineer new seed varieties for sustainable duties of care’.

 

What next?

Is there a future for such a duty of care? Beach J’s comments may have opened the door for the Court to revisit the issue. In Pabai Pabai v Commonwealth of Australia, First Nations leaders argue that the Commonwealth must protect Torres Strait Islanders’ traditional way of life from climate change.1 Pabai is listed for hearing in the Federal Court on 6 June 2023.

 

Endnotes
  1. For further information on the Pabai case, see https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/pabai-v-australia
References

The High Court’s decision in Minister for the Environment v Sharma can be accessed below.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2022/35.html

 

If you have any queries, please contact Hannah Elliott on 9612 7273

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