Court Finds Government Does Not Have Climate Duty of Care

The judge said emissions policy should be decided by parliament, not the courts.

A supplied image obtained on June 16, 2023, of Torres Strait Islander elders Paul Kabai and Pabai Pabai on Boigu Island, Torres Strait. AAP Image/Supplied by Talei Elu

An Australian class action brought by two Torres Strait Islander leaders against the federal government over climate inaction has been dismissed by the Federal Court.

Traditional owners Uncle Pabai Pabai of Boigu Island and Uncle Paul Kabai of Saibai Island launched the case in 2021, arguing that successive governments had breached a duty of care by failing to act on climate science, putting their islands, culture and future at risk.

While Justice Michael Wigney acknowledged the “grave and pressing” threat posed by climate change to the Torres Strait, he ruled that the claim could not proceed under current negligence law.

“There could be little if any doubt that the Torres Strait Islands and their inhabitants face a bleak future if urgent action is not taken to address climate change and its impacts,” Wigney said.

The court further warned that without decisive global action, entire island communities could be displaced.

However, Wigney found that the legal duties alleged were “novel” and unsupported by existing law.

He said the claim failed not because it lacked factual merit, but because negligence law does not currently offer a clear avenue for relief in such cases.

“For the reasons given in detail earlier, that [climate] duty of care cannot or should not be imposed or imputed because it would be both inappropriate and impractical for the Court to pass judgment on the reasonableness of the Commonwealth’s actions concerning the setting of emissions reduction targets,” Justice Wigney wrote.

“That is because they involve issues of high or core government policy and political judgment which properly fall within the province of the elected representatives and executive government of the day, not the judicial arm of government,” he added.

“Unless and until the law in Australia changes … the only recourse that those in the position of the applicants and other Torres Strait Islanders have is recourse via the ballot box,” he concluded.

What the Case Argued

The plaintiffs contended that the Commonwealth had a legal duty to take reasonable steps to protect Torres Strait Islanders and their way of life by setting and implementing targets to cut greenhouse gas emissions aligned with the best available science.

They claimed that from at least 2014, scientific consensus required limiting global warming to 1.5°C above pre-industrial levels to avoid devastating impacts on low-lying islands such as theirs.

It was argued that the Commonwealth’s targets set in 2015, 2020, 2021, and 2022 did not meet this threshold and were inconsistent with Australia’s fair share of the remaining global carbon budget.

The applicants had sought two declarations from the court: first, that the Commonwealth owed them a duty of care to protect them and their traditional way of life from climate impacts; and second, that the government had breached that duty.

Commonwealth Defence: Climate Policy Not For Courts

In response, the Commonwealth argued that matters such as emissions targets and climate adaptation fell under government policy and were therefore not subject to judicial scrutiny under negligence law.

It contended that no legal duty of care was owed to the plaintiffs, that the risks were not reasonably foreseeable or within its control

The Commonwealth further denied that any failure in its targets had caused harm to Torres Strait Islanders or that there was evidence of physical damage or personal injury.

It rejected the idea that cultural loss, such as diminished Ailan Kastom (island customs), could be compensated under negligence law. Finally, it opposed the plaintiffs’ request for declaratory and injunctive relief, describing the remedies as vague and impractical to enforce.

Plaintiffs Describe ‘Pain’

Following the decision, the plaintiffs, Uncle Paul Kabai and Uncle Pabai Pabai, expressed dissappointment.

“Love has driven us on this journey for the last five years, love for our families and communities. That love will keep driving us,” Uncle Pabai told the reporters.

Uncle Paul added, “I thought that the decision would be in our favour, and I’m in shock. This pain isn’t just for me, it’s for all people Indigenous and non-Indigenous who have been affected by climate change. What do any of us say to our families now?”

Labor Adds Political Spin

In a joint statement, Climate Change Minister Chris Bowen and Indigenous Minister Malarndirri McCarthy spruiked their efforts on climate change.

“Unlike the former Liberal government, we understand that the Torres Strait Islands are vulnerable to climate change, and many are already feeling the impacts,” they said.

“Where the former government failed on climate change, the Albanese Government is delivering—because it’s in the interest of all Australians.”