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.