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Pro Bono Alert: Landmark Sharma ruling overturned on appeal

Malvina Hagedorn and Claudia Wortmann

The landmark decision of Sharma was overturned earlier this week by the Full Federal Court of Australia (Court). The decision overturns a ruling by Bromberg J , in which His Honour found that the Federal Minister for the Environment (Minister) owed a novel duty of care to Australians under the age of 18 years who may suffer “catastrophic harm” from the climate change implications of approving the Vickery Extension Project (Project).

The appeal was allowed by each member of the Court, with Allsop CJ, Beach and Wheelahan JJ all finding that the posited duty could not be imposed.

Reasons of the Full Federal Court

In a summary of reasons delivered by Allsop CJ, it was found that the duty was based on the incorrect conclusion that human safety was an implied mandatory statutory condition under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (Act). His Honour made it clear from the outset of the decision that there was no dispute as to ‘the threat of climate change and global warming’, but that the duty could not be found to exist within the scope of the Act. The decision to allow the appeal and find in favour of the Minister was based on a statutory interpretation of the powers of the Minister under the Act.

Chief Justice Allsop identified three core issues with the posited duty, stating that

  • if found to exist, the duty would give rise to ‘core policy questions unsuitable… for judicial determination’ in the event of a breach of the duty;
  • the duty was ‘inconsistent and incoherent’ with the Act; and
  • in the context of the Act, issues of indeterminacy, lack of special vulnerability and control that would arise if such a duty were breached ‘make the relationship inappropriate for the imposition of the duty’.

Justice Beach found that there was no duty as there was a ‘lack of sufficient closeness and directness and its related partial inverse, namely, indeterminacy’.  

Justice Wheelahan found that the case did not facilitate a relationship between the parties that could support recognising a duty of care and that if such a duty were found to exist it would be incoherent with the discharge of the Minister’s functions under the Act. Justice Wheelahan also found that under the tort of negligence there was a lack of causation, as it was not reasonably foreseeable that approval of the Project would cause personal injury to the respondents.

What does this decision mean?

The decision means that the Minister does not owe a duty of care to young Australians under the Act, with respect to the Project. It highlights the complexity in finding a duty under tort law, especially where the posited duty had not been breached at the time of the Court hearing the matter. 

The decision also restated the importance of the separation of powers and the inability of the judiciary to intervene with respect to questions of governmental policy.

While the Plaintiffs’ legal argument was rejected by the Court, their evidence regarding the catastrophic climate impacts of burning coal was accepted by both the trial and appeal court. As such, the decision has ingrained a recognition of climate change as a serious existential threat and noted that, in the absence of any arguments by the Minister, this fact is not in question.

Where to from here?

An application by the plaintiffs for special leave to appeal to the High Court of Australia is certainly on the cards. Particularly in light of Justice Beach’s obiter on the constraints of the Federal Court and it being “for the High Court….to engineer new seed varieties for sustainable duties of care.

How can we help

For more information, please contact Malvina Hagedorn, from our Pro Bono team. 

If you would like to stay up to date with alerts, news and Insights from our Pro Bono team, you can subscribe to our mailing list here.

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