Senator Pocock’s Duty of Care Bill; Requiring the Commonwealth Government to consider the impact of climate change on present and future generations

Independent Senator David Pocock will propose a private member's Bill that seeks to impose a legal 'duty of care' on Australian government ministers to consider the impact of climate change on future generations.If Pocock's Bill were to pass, it would mean that addressing climate change would no longer be based solely on ethical principles but would become a matter of legal obligation under a framework of common law rights.

The proposal requires the federal government to consider the effect on the health and welfare of young people and future generations when authorizing or approving projects that could cause a significant increase in greenhouse gas emissions. Under the proposed changes a duty of care would be inserted into the Climate Change Act 2022. This would also modify other legislation, most importantly the discretionary power exercised by the Minister for Environment under the Environment Protection and Biodiversity Conservation Act 1999(EPBC Act).

The move would subject new applications for approval and expansion of fossil fuel projects, to new scrutiny. Government Ministers would be required to consider the link between the long-term impacts of new coal, oil, and gas projects, presently driving the climate crisis, and the future well-being of young people. In effect, legislating for equitable sharing of resources and balancing the needs of present and future generations.

The Bill is in line with efforts around the world, to re-negotiate the social license of the fossil fuel industry to operate and phase out the approval of new projects. This is supported by the Intergovernmental Panel on Climate Change's IPCC Report, which cautions that the current fossil fuel infrastructure is releasing greenhouse gases at a pace that could surpass 1.5C of global warming. Australia is refusing to heed the warning, choosing to disregard the International Panel on Climate Change (IPCC)'s call to cease approving and expanding new fossil fuel projects and steadfastly refusing to sign the Glasgow Statement,or commit to actions that align with a clean energy transition.

The move to require Governments to protect the interests of future generations aims to correct the common law's long-standing conundrum regarding the proximity of courts to their legal subjects that has given rise to a failure to provide important safeguards to generations not yet born. The legal obstacle of standing for future generations in climate litigation cases, is fast becoming immaterial as the urgency of the threat eliminates the distinction between harm experienced by present and future generations. In practice, courts are increasingly conflating the interests of present and future generations, holding that for standing purposes, it is enough to consider the interests of the living plaintiffs alone. Where previously there was a real difference between the forecasted harm suffered by present and future generations – we now understand that climate change impacts will be felt in a single life span.

Another factor that is amalgamating the intergenerational gap between present and future interests is the legally binding pledge among nations to reduce future carbon emissions and align nationally defined contributions NDCs with international objectives. The Paris Agreement 2015 brought forward global commitments to tackling climate change. The commitments are a deliberate attempt to make ambitious efforts towards achieving the purpose of the Agreement and to represent progression over time. It acknowledges the importance of the next decade in combating climate change and the need to reduce the burden on future generations.

While the Paris Agreement falls short of imposing a justiciable duty to achieve nationally determined contributions, the overall intent and aspirations may still influence the national courts. In Australia the Climate Change Act2022implementsAustralia's net-zero commitments and codifies Australia's net 2030 and 2050 greenhouse gasemissions reductions targets under the Paris Agreement.Although the Climate Change Act itself does not establish direct obligations, its enactment into law creates the foundation for implementing reforms aimed at achieving the 2030 target.

Statutory duty of care

Now that the Climate Change Act 2022 has been enacted in Australia, which aims to legislate Australia's GHG emission reduction target, the next phase is to operationalise net zero outcomes. To do otherwise, would be to render the Act an exercise in window-dressing.

As the balance of power senator, Pocock has taken the opportunity to put forward substantiative reforms that progress Australia's carbon reduction ambitions. A clear path towards achieving this end is to make transparent the discretionary power of the Environment Minister to approve or extend new fossil fuel projects.

However, a recent Full Federal Court's decision Sharma Vs Minister for the Environment scrutinized the Environment Minister's discretionary power and exposed a serious deficiency in the framing of the Minister's authority. What became evident is that Australian courts are not willing to impose a legal or moral responsibility on the Minister to protect the safety and wellbeing of present or future generations arising from climate change.

The Bill is a reaction to this Federal Court's decision in the Sharma case. Litigation guardian Anjali Sharma, who lead the action against Environment Minister Ley, approached Senator Pocock's office to explore ways that a common law 'duty of care' could be enshrined in our legal system as a statutory duty.

Climate change litigation in Australia

In fact there has been a sizable body of strategic litigation in Australia that has informed the Bill. In Australia, climate change issues have typically arisen in the context of judicial or merits reviews of decisions under environmental and planning legislation (ie seeking review on the grounds that the decision-maker failed to take into account climate change). These administrative law challenges are sometimes referred to as the 'first wave' or 'first generation' of climate change litigation and they continue to maintain a strong presence in the Australian climate change litigation landscape.

Across the world a second wave of climate litigation, based on tortious claims brought against major energy companies for negligence, began to emerge. A landmark decision, the Urgenda case in Netherlands handed down in May 2021, the District Court of the Hague ordered Shell to reduce its overall CO2 emissions by at least 45% from 2019 levels by 2030. The decision relies on the 'unwritten standard of care' contained in the Dutch Civil Code. The Urgenda climate case made history as the first instance where citizens successfully argued a legal 'duty of care' to prevent hazardous climate change. This case sparked similar lawsuits around the world, based on common law claims of negligence. As climate litigants sought to extend climate protection to both present and future generations, the idea of a 'duty of care' imposed on governments to sustainably manage resources, emerged globally as a possible cause of action.

In Australia however, the results have been less favourable. Sharma Vs Minister for Environment was an Urgenda-style claim brought by young litigants against their government. The claim was not ultimately accepted as a legal avenue for holding the Commonwealth government accountable to young people for decreasing greenhouse gas emissions.

The particulars of the case are below.

Sharma v Minister for the Environment

In 2021, a high-profile federal court (court of first instance) handed down a judgment in a case brought by 8 young teenagers and an octogenarian nun (the "Claimants). The court found the then-environment minister, Sussan Ley, had a duty of care to protect young people from the climate crisis.

A coal mining company (Whitehaven coal mine in New South Wales ) applied under the Environment Protection and Biodiversity Conservation Act (the EPBC Act) for approval to expand and extend an existing approved coal mine (the Extension Project). The youths sought to prevent the approval of the expansion of the mine on the grounds that, the Commonwealth Minister for the Environment (the"Minister") owed a duty of care to Australian children. The cause of action in negligence or tortious action claimed that the Minister for the Environment owed a duty of care to exercise her powers under the Act (the "EPBC") with reasonable care to avoid causing harm arising from GHG emissions.

In a setback for climate change claimants, the Full Federal Court of Australia overturned the earlier decision. The Full Court rejected claims that the Minister owed each of the Children a duty to exercise her discretion with reasonable care so as not to cause them harm. The Full Court unanimously found that the Minister did not owe a duty of care when deciding to approve, or not approve, a proposed coal mine extension.

A key insight in the Sharma decision was that the court concluded that tortious claims in Australia may not be the right litigation strategy. Having regard to the text, purpose and context of the EPBC Act, the court concluded that the Minister's discretion was confined to specific matters of national environmental significance. Given the lack of control that the Minister had over the harm arising from climate change and an absence of any special vulnerability (ie beyond the impacts of climate change generally felt), the court was not persuaded that a duty of care was owed to the children. The court emphasised the 'dangers of assessing fragmented liability issues decades before any cause of action accrues.' In addition, the lack of proximity, indeterminacy and foreseeability of harm caused the court to conclude that the relationship between the minister and the children was casual.

Intergenerational Justice

The Senator's 'duty of care' Bill seeks to remedy current legal deficiencies by establishing a statutory duty of care. This would clarify the Minister's power and require the Minister to give conscious consideration to the impact of climate change on present and future generations.

The Bill also raises deep questions about our relationship with future generations and how we might frame the rights and duties owed?, Do states owe a legal duty to present and future citizens to manage resources sustainably? Should states be required to make a utilitarian assessment of present actions and weigh these against the welfare of future humans? Or should state practice be loosely grounded in a tradition of "virtue ethics," that constrain present generations? The debate is significant; it has the potential to alter the actions we now take that affect future humanity.

While the success in climate change litigation has been variable, each decision has contributed to a developing jurisprudence addressing climate change issues. Around the world test cases are innovating new causes of action and fashioning common principles of law to serve strategic litigation ends, however at this juncture the legal landscape could only be described as a loosely related grouping of legal concepts that are far from becoming a coherent normative framework. This complex web of legal norms, that have existed in a latent form, are now rapidly gaining general acceptance as national courts respond to the existential threats of the climate change emergency.This volume of climate law and soft law instruments will require a normative and legislative vision to provide orientation to the steady stream of litigants that are taking action against national governments on behalf of young people and future generations.

Whether governments tackle challenges head-on or get drawn into climate change litigation, as defendants, they will ultimately be required to take a proactive role in managing the future. The government cannot escape a basic premise of sustainability; intergenerational equity.

In Australia this generational fairness issue is the focus of a grassroots youth-led movement that is gaining momentum in an effort to safeguard the future against generational theft. EveryGen, an intergenerational equity initiative of Griffith University's Policy Innovation Hub, is exploring several legislative and policy solutions including an ambitious reform involving pursuing a Welsh-style Future Generations Commissioner with statutory power to require government and public sector to consider the allocation of resources and risk across present and future generations.