Australia got off on a technicality for its climate inaction. But there are plenty more judgement days to come

This week, the Federal Court found the Australian government has no legal duty to protect Torres Strait Islanders from climate change. The ruling^[1] was disappointing, but it’s not the end of the matter.

The plaintiffs, Uncle Paul Kabai and Uncle Pabai Pabai, hail from the low-lying islands of Saibai and Boigu, near Papua New Guinea. They argued the Commonwealth was negligent for failing to take strong action on climate change.

While the judge accepted the devastating effects climate change has wrought on the Torres Strait Islands, he found the Uncles did not prove their case of negligence.

However, the judge found previous Australian governments had not taken the best available science into account when setting emissions reduction targets. The finding tightens the screws on the Albanese government, which is due to announce Australia’s long-awaited targets to cut emissions out to 2035.

To protect communities in the Torres Strait, and across Australia, the government must set a 2035 target that is in line with the science.

And the court finding is unlikely to stem the tide of litigation seeking greater government accountability for climate change – especially for those most vulnerable to its harms.

Much of the case was proven

The Uncles’ case did not fail because there was no merit in their allegations. It failed because Justice Michael Wigney ruled negligence law was not the appropriate vehicle to deal with climate change policy.

The finding left open the possibility an appeal court may revisit the state of the law, and recognise the duty of care claimed by the Uncles.

This would require an appeal to the full court of the Federal Court^[2]. Wigney was a single judge and considered himself bound by past precedent set by the full court.

Justice Wigney found the Torres Strait Islanders proved much of their case, including that Australia’s emissions targets set in 2015, 2020 and 2021 were not consistent with the best available science. That science dictates national governments should set emissions reduction targets in line with international efforts to hold global temperature rise to 1.5°C^[3].

The Coalition was in power during the period in question. Justice Wigney found the government of the day “did not engage with or give real or genuine consideration to the best available science” when setting its targets.

Looking ahead to our 2035 targets

The Labor government is currently weighing its 2035 emissions reduction target^[4]. The Climate Change Authority, which provides independent advice to government on climate policy, is expected to recommend a target between 65% and 75%^[5].

But evidence suggests this may not be in line with the best available science.

For example, according to some scientists, emissions reduction of 90% by 2035^[6], based on 2005 levels, would be required to stay in line with the 1.5°C goal.

Australia’s 2035 targets are not just crucial to the global effort to tackle climate change. They will also affect our standing in the Pacific at a time of deepening geostrategic competition^[7].

Australia is bidding to host the UN climate talks^[8] next year in partnership with Pacific island countries. Our climate policy for the decade ahead will be a powerful signal to our Pacific neighbours about our commitment to the region, and to climate justice.

A shifting legal landscape

Around the world, courts and human rights bodies are holding governments accountable for climate inaction. It is possible for Australian law to do the same.

Courts in the Netherlands^[9] and Belgium^[10], for example, have recognised government duties to heed the science to address foreseeable harms of climate change.

Next week, the International Court of Justice – the world’s highest court – will issue an historic legal opinion^[11] on the obligations of nations to tackle climate change.

This opinion will clarify the obligations of countries to prevent human rights harms caused by climate change, and to limit pollution of the Earth’s oceans and climate system. The opinion will be non-binding, but could influence future climate litigation.

What’s more, attribution science^[12] is improving all the time. This field of science examines how greenhouse gas emissions affect a particular weather event or climate pattern.

Clearer attribution science will provide courts an ever-stronger basis to consider how government policy decisions on emissions cause climate impacts – and resulting harms to people.

As the legal responsibilities of governments are clarified, further strategic litigation in Australia is likely.

Change is coming

In his judgement, Justice Michael Wigney said the law currently “provides no real or effective legal avenue” for people or communities to seek legal recourse for government inaction on climate change. That will remain the case until the law changes, he said.

To remain legitimate, legal norms must reflect changing social expectations. History shows laws can adapt when they are challenged repeatedly by those who are harmed by the status quo. Eventually, the dam wall breaks, and law is reinterpreted.

A clear example is the Mabo case of 1992^[13]. The High Court of Australia acknowledged the obvious fact that Indigenous peoples have lived on this continent for tens of thousands of years, and that the “terra nullius” (land belonging to no-one) concept was a legal myth.

The Mabo decision allowed common law to recognise native title. It was a departure from previous rulings^[14] which relied on the terra nullius concept to reject native title claims.

Australia’s legal norms largely pre-date the scientific consensus on climate change. They must evolve to better recognise climate impacts that are harming Australians. While this week might not have been the time, change is inevitable.

As Justice Wigney said, until the law adapts, the key avenue for change is public advocacy, protest and voter action at the ballot box.

References

1. ^{^} The ruling (www.judgments.fedcourt.gov.au)
2. ^{^} full court of the Federal Court (www.fedcourt.gov.au)
3. ^{^} hold global temperature rise to 1.5°C (www.ipcc.ch)
4. ^{^} weighing its 2035 emissions reduction target (www.dcceew.gov.au)
5. ^{^} a target between 65% and 75% (www.climatechangeauthority.gov.au)
6. ^{^} emissions reduction of 90% by 2035 (www.climate-resource.com)
7. ^{^} Pacific at a time of deepening geostrategic competition (www.lowyinstitute.org)
8. ^{^} bidding to host the UN climate talks (www.abc.net.au)
9. ^{^} Netherlands (www.urgenda.nl)
10. ^{^} Belgium (climatecasechart.com)
11. ^{^} issue an historic legal opinion (www.icj-cij.org)
12. ^{^} attribution science (unfccc.int)
13. ^{^} Mabo case of 1992 (aiatsis.gov.au)
14. ^{^} previous rulings (www.unswlawjournal.unsw.edu.au)