• Allsop CJ:
  1. The duty owed by the Minister to the children, and the people of Australia, is a political duty, not a legal duty of care. It involves the consideration of ‘high public policy’. Relying upon the New Zealand case of Smith v Fonterra Co-Operative Group Ltd [2021] NZCA 552, Allsop CJ stated that judicial determination of tortious claims was not a suitable forum for the assessment of climate change policy.
  2. The duty of care would be incoherent with the limited nature of the Minister’s functions under the EPBC Act. Allsop CJ referred to the inter-governmental arrangements existing between the Commonwealth and the State governments which delineate the respective jurisdictions’ responsibilities for regulating environmental matters. Of importance was the fact that the Minister’s decision concerned the approval of an action impacting on matters of national environmental significance protected under Part 3 of the EPBC Act. The EPBC Act does not purport to regulate climate change or the protection of the environment generally.
  3. Other factors against the imposition of the duty of care included:
     1. the decision being made many decades before any foreseeable harm may occur
     2. the Minister’s decision leading only to an increased ‘risk’ of harm (as opposed to a material contribution to harm)
     3. the lack of control the Minister had over the harm (i.e. ‘worldwide global climate catastrophe’, as opposed to control over the increased risk)
     4. the relationship between the Minister and the children being of ‘the government and the governed’, which does not give rise to any special vulnerability on the part of the children
     5. that the potential liability of the Minister would be indeterminate and it would not be proportionate to hold the Minister responsible for all of the impacts of global warming (having only made a minor increase in the risk of harm).
• Beach J:
  1. The duty did not arise as the relationship between the Minister’s decision and the risk of harm lacked sufficient closeness and directness, including in a temporal, geographic and causal sense.
  2. The duty should not be imposed as the claimant class is indeterminate. This was based on the finding that, while some of the children may be vulnerable to personal injury as a result of climate change, not all of the children were, and as a result, the claimant class was not ascertainable.
  3. In contrast to Allsop J’s judgment, Beach J rejected arguments that the duty should not be recognised because:
     1. it involved questions of policy concerning greenhouse gas emissions
     2. it would be incoherent with the purpose of the EPBC Act
     3. the Minister lacked control over the risk of harm
     4. that the liability would not be proportionate.
• Wheelahan J:
  1. The relationship between the Minister and the children under the EPBC did not support imposing a duty of care, as the functions conferred upon the Minister did not relate to the control of GHG emissions or the protection of the public from climate change. Similar to Allsop J, Wheelahan J relied upon the limited purpose of the EPBC Act and its context within the Commonwealth and the States’ respective environmental assessment functions. These factors, among others, led to a finding that the EPBC Act did not provide the Minister with the necessary degree of control over the risk of harm to the children and recognition of the duty would not be consistent with the scheme of the Act.
  2. Determining the standard of care owed by the Minister would require consideration of issues relating to policy, economics, the public interest, the relationship between the States and the Commonwealth, and the Commonwealth’s relationships internationally. These issues are not appropriate for determination by the Courts, nor would the duty be coherent with the policy issues arising.
  3. Reasonable foreseeability of harm was not established, as the Minister’s decision would only result in an increased risk of harm (or a contribution to this risk, together with other sources), which is not recognised in the Australian common law of causation.

Evolution of the common law of negligence

In granting the appeal, two of the three judges relied heavily on the context of the particular decision being made under the EPBC Act (which the Court found does not deal with climate change impacts or the protection of the environment generally) and the split of environmental assessment functions between the State and Commonwealth governments.

This raises the question as to whether such a duty could be recognised in government decision making in other contexts, such as the assessment of development applications under State planning legislation. Given the split reasoning in the judgments, this possibility is not inconceivable. However, all judges agreed that there were significant issues relating to causation and indeterminacy, which would need to be overcome in order for such a claim to succeed.

Regarding causation, as the increase in risk of harm is not currently accepted as a test of causation in Australia, this concept would need to evolve in order to attach a duty of care to actions resulting in an increase in GHG emissions, which may not actually result in harm, but would increase the risk of harm resulting from climate change. The Court did not seem entirely closed off to this possibility, with Allsop J stating that this would need to be a matter for the High Court, and Beach J noting that the law of causation may well have evolved in this manner by the time that such a tort has crystalised.

Beach J also opined that the reasons upon which he found the duty to not arise (sufficient closeness and directness and indeterminacy) may well have ‘reached their shelf life’. While His Honour acknowledged that this too was a matter for the High Court, he did so quoting the following passage from President John F Kennedy:

The great French Marshal Lyautey once asked his gardener to plant a tree. The gardener objected that the tree was slow-growing and would not reach maturity for a hundred years. The Marshal replied, ‘In that case, there is no time to lose, plant it this afternoon.

It is only a matter of time until there is another attempt at planting such a seed. Even if the children do not elect to appeal this decision to the High Court, the imposition of a common law duty of care will soon be tested again in the ongoing Pabai Pabai & Anor v Commonwealth of Australia proceedings, brought against the Commonwealth government by Torres Strait Island traditional owners.