FEDERAL COURT OF AUSTRALIA
Minister for the Environment v Sharma  FCAFC 35
In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.
The appeal concerns the orders made by the primary judge declaring that the Commonwealth Minister for the Environment owed a duty of care at common law when exercising her power under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to consider and approve an extension of a coal mine in New South Wales. The duty was expressed to require the Minister to take reasonable care to avoid causing personal injury or death to all people in Australia under 18 years of age at the time of the commencement of the proceeding arising from the emissions of carbon dioxide into the Earth’s atmosphere from the combustion of the coal to be mined in the extension of the mine. In so finding such a duty of care the primary judge also found that human safety was an implied mandatory consideration in the making of the decision.
The respondents to the appeal, the applicants below, did not seek to support the primary judge’s conclusion that human safety was a mandatory consideration in the making of the decision.
As to the posited duty of care, the Full Court is unanimous in the view that the duty should not be imposed upon the Minister. The three judgments of the Court have different emphases as to why this conclusion should be reached. Before summarising the central reasoning of each member of the Court some comment is appropriate as to the hearing of the matter before the primary judge.
A substantial body of evidence was led by the applicants about climate change and the dangers to the world and humanity, including to Australians, in the future from it. None of the evidence was disputed. There was no cross-examination of any witness brought by the applicants by those acting for the Minister, and there was no contrary or qualifying evidence led by the Minister.
In a detailed and comprehensive judgment, the primary judge analysed the factual material closely and thoroughly. The Minister submitted that some of the primary judge’s findings were incorrect and reached beyond the evidence. The Court is unanimously of the view that these complaints are unfounded. All of the findings of the primary judge were open to be made on the uncontested evidence before his Honour.
The Chief Justice is of the view that the duty should not be imposed for a number of reasons. First, the content and scope of the duty would call forth at the point of assessment of breach the need to re-evaluate, change or maintain high public policy, the assessment of which is unsuited to decision by the judicial branch in private litigation. Secondly, the imposition would be incoherent and inconsistent with the decision-making in question under the EPBC Act according to its terms, as understood in its context as part of Commonwealth and State responsibilities for the protection of the environment. Thirdly, taken in conjunction with these two matters, the lack of control over the harm (as distinct from over the tiny contribution to the overall risk of damage from climate change), a lack of special vulnerability in the legal sense, the indeterminacy of liability and the lack of proportionality between the tiny increase in risk and lack of control and liability for all damage by heatwaves, bushfires and rising sea levels to all Australians under the age of 18, ongoing into the future, mean that the duty in tort should not be imposed.
Justice Beach is also of the view that the duty should not be imposed. His Honour has given emphasis to two factors in support of that conclusion. First, in his Honour’s view there is not sufficient closeness and directness between the Minister’s exercise of statutory power and the likely risk of harm to the respondents and the class that they represent. Secondly, to impose a duty would result in indeterminate liability. As for the other matters argued by the Minister, in his Honour’s view none of them individually or collectively warrant not recognising the duty found by the primary judge.
Justice Wheelahan is of the view that no duty of care arises for three main reasons. The first is that the EPBC Act does not erect or facilitate a relationship between the Minister, and the respondents and those whom they represent, that supports the recognition of a duty of care. In particular, his Honour is of the view that the control of carbon dioxide emissions, and the protection of the public from personal injury caused by the effects of climate change, were not roles that the Commonwealth Parliament conferred on the Minister under the EPBC Act. Secondly, his Honour is of the view that it would not be feasible to establish an appropriate standard of care, with the consequence that there would be incoherence between the suggested duty and the discharge of the Minister’s statutory functions. Thirdly, his Honour is not persuaded that it is reasonably foreseeable that the approval of the extension to the coal mine would be a cause of personal injury to the respondents or those whom they represent, as the concept of causation is understood for the purposes of the common law tort of negligence.
Before making final orders disposing of the appeal, the Court proposes to give the parties an opportunity to consider the position of the represented parties and to address the issue of costs.
CHIEF JUSTICE ALLSOP
15 March 2022