In support of a statutory duty of care to mitigate the impact of climate change – a tripartite argument
Marco Rizzi, Fiona McGaughey and Alex Gardner
14.12.2023
In August 2023, Senator David Pocock introduced to the Senate the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth) (‘the Bill’), which seeks to establish a statutory duty of care to avert harm to the health and wellbeing of current and future Australian children by the Commonwealth Government when making decisions that may cause significant greenhouse gas emissions. The explanatory memorandum to the Bill describes climate change as ‘having increasingly significant impacts in Australia, in the Pacific region and across the globe’ and outlines how the damage to ‘Australia’s economic prosperity, environment, and our health and wellbeing is severe and getting worse’.
This post articulates how the Bill addresses key gaps and delays in common law and legislation, improves Australia’s compliance with international law, and has the potential to create a useful climate change mitigation governance tool.
The limits of Australian negligence
The tort of negligence, in its hybrid configuration comprising state civil liability legislation and the common law, is ill-suited to confront the existential threat posed by the cumulative effects of climate change. As illustrated in the appellate decision of the Full Federal Court in Minister for the Environment v Sharma (2022) (‘Sharma’), which overturned the judgment at first instance, three fundamental obstacles stand in the way of developing a duty of care owed by competent public authorities to current and future generations of Australian children not to make decisions that will exacerbate climate change harm to them.
First, the notion of harm in Australian negligence is inextricably linked to the compensatory principle, as illustrated for example in the judgment of Crennan J in Harriton v Stephens (2006). This principle relies on a conceptualisation of harm anchored to an identifiable and quantifiable loss: a plaintiff in a negligence action must show that they are somehow worse-off as a result of the tortfeasor’s conduct. This is ‘the gist’ of a negligence action as stated in Williams v Milotin (1957). This narrow conceptualisation of harm was key in prompting Allsop CJ to deny the existence of a duty of care in Sharma. His Honour referred ‘to the unusualness in the law of tort of a duty of care being imposed in the absence of damage or likely threatened damage from the tortious conduct’ ([295]).
Secondly, the element of factual causation in negligence rests on the proposition that the conduct of the tortfeasor was a ‘necessary condition’ of the harm suffered. As explained in Adeels Palace v Moubarak (2009), the test requires the plaintiff to show that, on the balance of probabilities, without the negligent conduct of the tortfeasor the plaintiff would not have suffered harm. Where the necessary condition test cannot be satisfied due to the nature of the harm involved, a plaintiff may be able to establish factual causation if they can show that the tortfeasor’s conduct materially contributed to the harm, as explained in Strong v Woolworths (2012). The causal inquiry is retrospective in nature, in the sense that it looks back to determine what caused a particular harm with the benefit of hindsight. Courts are therefore reluctant to impose a duty of care in situations where the harm has not yet occurred, unless this is done to provide injunctive relief where the prospective harm is both foreseeable and uncontroversial in nature. As Allsop CJ put it in Sharma, the duty would have been imposed ‘decades before one can even begin to assess the causal contribution’ ([298]).
The final and fatal hurdle for the Sharma litigation was the reluctance of the Full Federal Court to engage in decision-making that would stretch the boundaries of the established tort for the purpose of challenging core policy questions. Specifically, the court observed that establishing a duty of care in the circumstances of the case would have been tantamount to assessing the reasonableness of governmental policy of the highest order. Courts are very much reluctant to adjudicate this type of matters, which are considered beyond the scope of the tort of negligence as explained in Graham Barclay Oysters Pty Ltd v Ryan (2002).
The Full Federal Court’s reading of the elements of harm and factual causation, as well as their Honours’ views on policy, can arguably be characterised as cautious and conservative. The tort of negligence is capable of development so as to include novel forms of harm, as has historically been the case. However, common law development is incremental in nature and takes place over protracted periods of time. For example, recognition of mental harm for liability purposes required decades of litigation, and decades more to roughly align the doctrine to modern psychiatric knowledge. As time is of the essence for Australia to meaningfully face the challenges of climate change, the introduction of a statutory duty of care seems a more appropriate course of action.
Overcoming the obstacles: key aspects of the Bill
The Bill puts forward important proposals in clauses 15D and 15E to overcome the hurdles identified above. Specifically, clause 15D overcomes the established view that quantifiable harm is the gist of negligence by explicitly imposing a forward-looking duty of care to consider the health and welfare of current and future generations of Australian children when making decisions that are likely to cause emissions. The Bill elevates the preventative function of the duty of care by severing it from the tort of negligence where it is curtailed by current conceptualisations of harm and factual causation, as exemplified by the Sharma decision.
Furthermore, clause 15D also identifies the ‘health and wellbeing of current and future children in Australia as the paramount consideration’, thereby providing clear and unambiguous guidance on the hierarchy of policy considerations for both public authorities engaging in decision-making, and for courts when called upon to settle challenges to such decisions.
Finally, clause 15E establishes a duty not to make certain decisions and overcomes the obstacle of factual causation by engaging the duty in situations where decisions materially increase the risk of harm to current or future generations of Australian children. In so doing, the Bill bypasses the current (and contested) formulation of factual causation in negligence, and pushes the idea of material contribution beyond established cases of harm to include the risk of future harm. This is a crucial step towards effective preventative action to mitigate the impact of climate change.
Future harms and ‘significant decisions’
The Bill extends accountability to include emissions outside the territory of this jurisdiction, which is critical given the significant exports from Australia’s resources sector. All of Australia’s direct and indirect greenhouse gas emissions (GHGe), whether those emissions are scope 1, 2 or 3 emissions, will contribute to future harms from climate change. The Bill posits that any decisions by Australian governments that authorise substantial scope 1, 2 or 3 GHGe (i.e. in excess of a ‘significance’ threshold) will be considered ‘significant decisions’. The most important source of those future harms is likely to be the indirect (scope 3) emissions from the overseas use of Australian fossil fuels or other resources processed outside of Australia by Australian export customers. Decisions regarding domestic authorisation of the resource activities that lead to those overseas emissions will be ‘significant decisions’ that should be made in co-operation with the governments of the export destination countries or, at least, with consideration of their decision-making.
Currently, the risk of future harm posed by ‘significant decisions’ is limited in scope. The Climate Change Act 2002 (Cth) sets out GHG emission reduction targets by which Australia contributes to the Paris Agreement goals of holding global average temperatures rise below 2oC and preferably to a maximum of 1.5oC. Specifically, s 10 provides for Australia’s emissions reduction targets for 2030 and 2050 to be interpreted consistently with the Paris Agreement and Australia’s nationally determined contributions (NDCs) to global GHGe reductions. The critical limitation of these provisions is that they only operate on the GHGe made directly within the territory of Australia, thereby excluding scope 3 emissions.
This limitation also applies under the National Greenhouse and Energy Reporting Act 2007 (Cth) (‘NGER Act’) as specific regulatory controls are only triggered for facilities with annual scope 1 GHGe of more than 100,000 tonnes, and reporting requirements only apply to scope 1 and 2 GHGe. At one level, this approach is understandable because Australia is not responsible under the Paris Agreement for accounting and reporting the GHGe of other States, such as those who buy and use Australian fossil fuels. However, that does not deny the scientific fact that GHGe anywhere on the planet contribute to the climate change harm experienced in Australia. It is therefore of vital concern to current and future generations of Australians to understand and limit how Australian exports contribute to the levels of global GHGe.
There have been several attempts to address this concern in litigation of decisions about the environmental impact assessment and approval of actions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). The outcome of this litigation is explained by Professor Jaqueline Peel in an opinion published on 31 October 2023 by the Climate Council, ‘Gaps in the Environment Protection and Biodiversity Conservation Act and other federal laws for protection of the climate’. Professor Peel begins by acknowledging the absence of a specific regime for the regulation of GHGe under the EPBC Act, and underlining the inadequacy of current proposals aimed at improving ‘transparency in reporting of projects’ greenhouse gas emissions and alignment with national emissions targets’. She concludes with a reflection on the very limited successes of litigation (so far) aimed at bringing the climate impacts of GHGe-intensive projects under the full scrutiny of the EPBC Act assessment and approval processes. The current interpretation of the EPBC Act therefore fails to provide for a consideration of scope 3 GHGe overseas, although a different outcome may be possible in the injunction proceedings of Australian Conservation Foundation v Woodside Energy, currently running in the Federal Court.
In this context, the Bill proposes important propositions about the definition of ‘significant decisions’ that set the framework for the operation of the duties under clauses 15D and 15E to consider the potential climate change harm from the significant decisions.
Specifically, clause 15C proposes that a ‘significant decision’ means a decision made under a relevant enactment ‘that is likely to result directly or indirectly, over the lifetime of one or more facilities’, in scope 1, or 2 or 3 GHGe with a carbon dioxide equivalence of at least 100,000 tonnes. Crucially, the amount is no longer calculated in yearly instalments but rather to the same volume over the lifetime of the project facilities, thereby significantly lowering the threshold. Further, the scope of the duty of care incorporates expressly scope 3 GHGe, capturing indirect emissions overseas.
It is worth noting that clause 15C(3) outlines the scope of the legislation under which a ‘significant decision’ can be made, and presently does not include the EPBC Act. This should be corrected by including the EPBC Act (or any Act that may replace it as it is currently under reform consideration), particularly in light of the potential outcome of the ACF v Woodside injunction proceedings.
International human rights law obligations
In addition to addressing gaps in negligence and existing climate change and environmental protection laws at a domestic level, the proposed legislation would improve Australia’s compliance with international human rights law. Tackling climate change is a global issue and one which requires the co-operation of all States. On 28 July 2022, the United Nations General Assembly adopted a resolution recognising the human right to a clean, healthy and sustainable environment. By that time, over 150 countries had already enshrined environmental protection or the right to a healthy environment in their constitutions. Globally, litigation is increasingly being used to hold States to account on climate change and successful cases often rely on domestic or regional human rights obligations. The 2019 decision in Urgenda Foundation v the Netherlands was one of the first successful challenges to climate change policy based on a human rights treaty. The Dutch Supreme Court found that the Netherlands has a positive obligation under the European Convention on Human Rights to take reasonable and suitable measures to prevent climate change. Unfortunately, Australia remains an outlier as the only Western democracy without a constitutional or statutory charter of rights. As such, domestic human rights-based claims of climate harm are unlikely to be available in the near future. The proposed Bill is therefore critical to accelerate efforts to limit harms from climate change.
Australia’s current action to tackle climate change has already been found to breach international human rights obligations. Eight Torres Strait Islanders took a case against Australia to the UN Human Rights Committee in 2019, on their own behalf and on behalf of six of their children. In September 2022, the Committee handed down its landmark decision in Daniel Billy et al v Australia, finding that Australia’s failure to adequately protect Torres Strait Islanders from the adverse impacts of climate change violated their rights to enjoy their culture and be free from arbitrary interference with their private life, family, and home under the International Covenant on Civil and Political Rights (ICCPR). In addition to recommending effective remedy for the plaintiffs in this case, the Committee also noted Australia’s obligation to take steps to prevent similar violations in the future. The introduction of a duty of care as outlined in the proposed Bill would help meet this obligation.
The UN Committee on the Rights of the Child’s latest General Comment No. 26 on children’s rights and the environment, with a special focus on climate change (General Comment 26), adopted in August 2023, also places relevant obligations on States parties. It recognizes the principle of ‘intergenerational equity and the interests of future generations’ and notes that ‘States bear the responsibility for foreseeable environment-related threats arising as a result of their acts or omissions now, the full implications of which may not manifest for years or even decades’. General Comment 26 states that environmental decisions generally concern children, ‘and the best interests of the child shall be a primary consideration in the adoption and implementation of environmental decisions, including laws, regulations, policies, standards, guidelines, plans, strategies, budgets, international agreements and the provision of development assistance.’ It also notes that:
States have a due diligence obligation to take appropriate preventive measures to protect children against reasonably foreseeable environmental harm and violations of their rights, paying due regard to the precautionary principle. This includes assessing the environmental impacts of policies and projects, identifying and preventing foreseeable harm, mitigating such harm if it is not preventable and providing for timely and effective remedies to redress both foreseeable and actual harm. [69]
In response, the Bill aims to bring Australia more in line with international law by proposing an additional object to the Climate Change Act s3:
(d) to promote intergenerational equity by requiring the health and wellbeing of current and future children in Australia to be considered by persons making certain administrative decisions that are likely to contribute to climate change
General Comment 26 also requires ‘vigorous children’s rights impact assessments’, which is not yet reflected in the proposed legislation. It would be appropriate for a closer scrutiny of Australia’s international human rights obligations to inform development of the Bill.
The step we need?
Environmental policy is a traditionally fraught arena in Australia. Even as public opinion is catching up to the implications of overwhelming scientific evidence pointing to the devastating impacts of climate change and calling for urgent radical action, responses by political leaders remain timid. In this context, a Bill establishing a discrete duty of care, introduced by an independent Senator, may prove effective in breaking the deadlock.
This post is a revised version of a submission made to the Senate Standing Committee on Environment and Communications in response to its Inquiry into the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023.
Marco Rizzi is Associate Professor at the University of Western Australia Law School.
Fiona McGaughey is Associate Professor at the University of Western Australia Law School.
Alex Gardner is Professor at the University of Western Australia Law School.
Suggested citation: Marco Rizzi, Fiona McGaughey and Alex Gardner, ‘In support of a statutory duty of care to mitigate the impact of climate change – a tripartite argument’ (14 December 2023) <https://www.auspublaw.org/blog/2023/12/in-support-of-a-statutory-duty-of-care-to-mitigate-the-impact-of-climate-change-a-tripartite-argument>