Senator Pocock’s Duty of Care Bill; Requiring the Commonwealth Government to consider 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.