In the Sharma decision the federal court says: we see the climate risk but cannot act

·5-min read
<span>Photograph: Dean Lewins/AAP</span>
Photograph: Dean Lewins/AAP

Whether in this or another case, Australia’s climate inaction could reach the high court – which can, and does, rewrite the law. It should do so

It has become a source of dark irony among climate activists globally that court decisions denying their search for climate action begin by recognising the existential risk posed by the climate crisis. And so it went on Tuesday, when the full federal court delivered its judgment in the landmark Sharma case. “The threat of climate change and global warming was and is not in dispute between the parties in this litigation,” began chief justice James Allsop.

What, then, does the judiciary – the third, independent and co-equal branch of government – propose to do about it? In the face of crippling climate inaction from the federal executive and legislative government that threatens to render Australia effectively uninhabitable in the centuries ahead, how will the courts react?

On Tuesday, the full federal court overturned a landmark earlier decision that found the federal environment minister owed a duty of care to Australian children to mitigate climate risk in considering whether to approve a major coalmine expansion. Each writing separately, the three judges – Allsop, Michael Wheelahan and Jonathan Beach – accepted the minister’s appeal in a nearly 300-page judgment.

Related: Sussan Ley does not have duty of care to protect young from climate crisis, appeal court rules

“We are dealing with core, indeed, high policy-making,” wrote Allsop in deciding that the claim was not suited for judicial determination. “To the extent that the evidence and the uncontested risks of climate catastrophe call forth a duty of the minister or the executive of the commonwealth, it is a political duty: to the people of Australia,” he added. It is cold comfort for future generations who will suffer because of the government’s failure to fulfil that duty today.

Much will be written in the weeks, months and years ahead about this significant moment for climate litigation in Australia. My comments are necessarily preliminary. But my overarching reaction is one of despair. Sharma is a judgment founded on centuries of jurisprudence – that, of course, is one of the strengths of the common law. But the common law evolves. Australia, and the world, has never faced a challenge of this nature. If not now, in light of all we know about climate harm and the government’s climate inaction (including, relevantly in the present case, approving a coalmine that will lead to an additional 100 million tonnes of carbon dioxide), then when?

It is often said that hard cases make bad law

Tuesday’s judgment was not all bad news. The considerable divergence between the three judges meant that this was not a slam-dunk for the government, an immovable obstacle to future claims. While Allsop appeared most concerned that the question was primarily a political rather than a judicial one, echoed to a lesser extent by Wheelahan, Beach rejected this line of argument. “In summary, I accept that policy questions are involved. But whatever they may be, they can adequately be dealt with,” he held. Instead, Beach rejected the case on more technical legal grounds.

That leaves the door open to future claims, perhaps more narrowly framed, succeeding. Indeed, all three judges highlighted their desire to avoid foreclosing future litigation; they have sought further submissions about the resolution of the case, to “ensure that” other climate litigants are not “unduly prejudiced” by the outcome. There were also tea leaves from the three judges, even Allsop, about the possibility of a duty of care where there is closer nexus between the risk and the harm (he used the example of the government approving an asbestos mine near a large city). Such comments will no doubt be explored in future litigation.

First, though, the plaintiffs in Sharma will consider whether to appeal to the high court. In that consideration they will take heart from Beach, the most sympathetic of the appeal bench to their claim. Noting that some of the legal concepts that stood in the way of the teenage plaintiffs “in their present form may have reached their shelf life”, he mused that “it is for the high court not us to engineer new seed varieties for sustainable duties of care”.

Whether in Sharma or another case, Australia’s climate inaction will soon reach the nation’s highest court. In that context, some of the comments in Tuesday’s judgment about institutional restraint will be less applicable – the high court can, and does, rewrite the law. It should do so.

It is often said that hard cases make bad law. There is no doubt that the issues posed in Sharma are immensely difficult – perhaps the most challenging that courts will ever face. Reasonable minds disagree about the extent of appropriate judicial intervention in the climate crisis. But what is most dispiriting about the Sharma decision is that in seeking to respect institutional boundaries, it goes a large way towards abandoning the field altogether. Climate (in)action is political, Allsop held, and courts should leave such policy-making to politicians.

In the ultimate analysis, what is the point of our law, if not to protect Australians from the most significant existential risk ever faced? What is the point of our constitution if Australia becomes all-but uninhabitable – a land of fire, flood and drought? As our coal-loving government sends us towards climate oblivion, the federal court says: we see the risk, but cannot act.

• Kieran Pender is a writer and lawyer. He is an honorary lecturer at the ANU College of Law

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