Posted on March 17, 2022 by Anna Sinclair and Stuart Simington
The landmark decision of Sharma v Minister for the Environment is overturned
The Full Federal Court of Australia has upheld an appeal by the Commonwealth Minister for the Environment, overturning a landmark lower court decision that held that the Minister owed a duty of care to protect Australian children from climate change-related harm when assessing fossil fuel projects under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (2021) 391 ALR 1;  FCA 560, eight Australian children brought an action in negligence against the Minister, seeking a declaration that she owed them (and all Australian children under the age of 18 years)(the Children) a common law duty not to cause them harm when deciding whether or not to approve an extension to the Vickery Coal Project (Extension Project) under ss130 and 133 of the EPBC Act.
The Extension Project would involve the extraction of an additional 33 Mt of coal and the consequent emission of 100 Mt of CO2 over 25 years.
At first instance, Justice Bromberg in the Full Court found that the Minister owed the Children such a duty, but it was limited to taking reasonable care to avoid causing personal injury or death to the Children from bushfires and heatwaves.
It was a landmark decision given that it was the first time that a court found that the Executive government owes a duty of care to protect persons from climate change-related harm. The decision had wide-ranging implications for government decision-makers under similar legislation, as well as for major private emitters, who could both face similar claims in the future.
The Minister, unsurprisingly, appealed the decision to the Full Federal Court.
Decision of the Full Federal Court
On appeal, Chief Justice Allsop, and Justices Beach and Wheelahan were unanimous in their separate judgments that a duty of care should not be imposed on the Minster.
Whilst the Court acknowledged that the threat of climate change and global warming is not in dispute, in a nearly 300-page judgment, their Honours gave detailed and comprehensive reasons for their refusal of the duty.
Chief Justice Allsop was most concerned that the posited duty raised “core” policy questions and was incoherent with the EPBC Act. His Honour refused to impose the duty on the basis that it would throw up at the point of assessment of breach the question of the proper policy response to climate change and considerations unsuitable for resolution by the Judicial branch of government.
Further, the duty was incoherent and inconsistent with the Minister’s power under the EPBC Act, as understood in its context as part of Commonwealth and State responsibilities for the protection of the environment. The duty would require the Minister to take into account and consider global warming risks associated with greenhouse gas emissions, and the policy response thereto, when this was not a requirement under the EPBC Act.
It was also the Chief Justice’s view that the Minister’s lack of control over the alleged potential harm (which was worldwide global climate catastrophe), a lack of ‘special vulnerability’ in the legal sense of the Children, and the indeterminacy of liability meant that the duty should not be imposed.
Justice Wheelahan shared the Chief Justice’s concerns that the imposition of the duty raised policy questions, and refused the duty on a number of grounds, including that it was incoherent with the Minister’s statutory functions under the EPBC Act and would overlap with NSW planning determinations, and would slide into political considerations and require the making of value judgments, the assessment of which are inappropriate for judicial resolution.
In contrast, Justice Beach was unfazed that the imposition of the duty raised policy questions, and considered that these issues can be adequately addressed at the stage of a breach of the duty.
Rather, his Honour refused to impose the duty on the basis that none of the Children could reasonably be considered to be “so closely and directly affected” by any act of the Minister with respect to the exercise of statutory power. The Children would only be impacted by the exercise of the Minister’s power in many decades to come, there was no geographic closeness between the Minister and the Children, and there was no causal closeness and directness between the Minister’s approval and the harm to be suffered by the Children given there were other links and actors in the causal chain.
Beach J also refused the duty as it would result in indeterminate liability for the Minister, as in all likelihood, the duty would extend to much of the Australian population.
Consequences of the decision
The critical question that this case raises is whether the recognition of a novel duty of care in the circumstances represents an ordinary development in the law of negligence so as to respond to contemporary social conditions. The Full Federal Court’s view is clearly that the Australian common law cannot respond in these circumstances.
However, Justice Beach acknowledged that the current principles that apply to recognising novel duties of care and negligence “may have reached their shelf life“, and they are ill-suited to deal with the harm caused by greenhouse gas emissions; these having “wide-scale consequences that transcend confined temporal boundaries and geographic boundaries“. His Honour considered that it is for the High Court, and not the Full Court, to “engineer new… varieties for sustainable duties of care“.
It is yet to be seen whether the Children will seek special leave to appeal to the High Court, but following Justice Beach’s comments, it may be likely. If so, it will then fall to the High Court to determine whether Australian common law can, and should develop to make persons liable for acts or omissions that contribute to climate change-related harm.
Even if the Children do not appeal, or the Full Court’s judgment is upheld by the High Court, the decision will not prevent similar legal challenges in the future. The divergence between the findings of the justices leaves some room for analogous claims to be brought against decision-makers under other legislation, as well as against large private emitters, albeit on narrower grounds.
The Full Federal Court’s judgment in Minister for the Environment v Sharma  FCAFC 35 can be accessed here.
If you have any questions about this blog, please contact Anna Sinclair or on 8235 9713 or Stuart Simington or on 8235 9704.