Australia's Federal Court recently ruled that the country's Environment Minister has no duty of care for future generations when deciding whether to approve the expansion of coal mines. The case was originally brought by eight teenagers and a nun legally acting on their behalf. The judgment leaves children with limited recourse: they can't vote, they are ignored by politicians, and now the Court refuses to scrutinise decisions that primarily affect them.
Noam Peleg
The full bench of the Australian Federal Court ruled, in March 2022, that the Federal Minister for the Environment does not have a duty of care for children and future generations when exercising its authority under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
This decision sets environmental protection and children’s rights back. It enables Australia’s Minister for the Environment to effectively ignore international human rights standards, as well as local, predominantly procedural, child law standards, when exercising their authority.
The case was originally brought by a group of eight teenagers, and a nun who acted on their behalf for legal purposes. They asked the Federal Court for an injunction to prevent the Minister for the Environment from approving a proposal by mining company Whitehaven Coal to expand the Vickery coalmine in northern New South Wales.
Last year, the Court ruled that the Minister has a duty of care for children, and that their decision whether to approve further expansion of the mine must consider the impact of climate change on children and future generations. The Court at that time assumed that such a decision will also be based on the best interests of children. The Minister appealed, explicitly arguing that they do not have such duty towards children in Australia. More specifically, the Minister argued that they do not have the duty ‘to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia… arising from emissions of carbon dioxide into the Earth’s atmosphere’. In other words, the Minister went to Court to argue that caring for children isn’t part of their job description.
Climate change and its impact – current and future – on livelihoods in Australia was not disputed in this litigation, and the full bench has accepted the scientific evidence that unequivocally proves the devastating impact that rising sea levels and rising temperatures will have. But despite the undisputed effect of emissions from the combustion of the coal, for example, the Court, as per Chief Justice Allsop, decided that the Minister does not have ‘an abstract’ duty of care as their decisions are policy-oriented and broad in nature, and therefore the proper accountability process to oversight its decision is a parliamentary one, and that such decisions should not be adjudicated nor reviewed by the Court.
This represents a narrow understanding of accountability, the role of courts and of democracy more generally, and ignores children’s positionality in society. It overlooks the inherent democratic deficit that children experience and suffer from. Children do not have the right to vote, and characterising parliamentary oversight as the only appropriate processes to discuss ‘broad’ policy questions is paternalistic and anti-children. It also ignores the reality where the politicians that the Court assumes that will scrutinise environment policies are the same politicians who dismissed children’s climate strikes and climate protests to begin with. Politicians might talk about the need to promise children a better future, but this case shows that when it comes to accepting binding duties to act on such promises, politicians are doing everything they can to avoid it.
The decision is based on a narrow reading of the term ‘the environment’ under the Act, which led the Court to rule that when the Minister considers whether to approve an expansion of a mine, it acts with regard to the ‘likely significant impact, not on climate change, the environment more generally, or the foreseeability of risk to health and safety of people in the future, but rather specified matters of national environmental significance’ as defined by the Act. This gives the Minister a carte blanche to ignore climate change and its impact on children and future generations.
This decision leaves children with limited recourse: they can’t vote and therefore can’t directly engage with the political processes that set the ‘broad’ policies that the Court focused on; politicians ignore them; and the Court ignores the actual parties of the case, namely children themselves, refusing to scrutinise decisions that primarily affect them. The Court ruled that the Minister is unaccountable to them.
This case demonstrates the urgent need for adopting a comprehensive and meaningful human rights mechanism, either as an act of federal or state/territory parliaments, or as an amendment to the Constitution. Such a mechanism must include provisions that acknowledge and protect the rights of children, in accordance with Australia’s commitments under the UN Convention on the Rights of the Child. The states’ human rights acts that we already have, for example in Victoria or Queensland, are insufficient in that regards. Children in these states, as well as in the rest of Australia, deserve much more.
[This piece was originally published by the UNSW Human Rights Institute: https://www.humanrights.unsw.edu.au/research/commentary/climate-change-court-ruling-setback-childrens-rights]