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The leaking by the Morrison government of court submissions shows its antagonistic attitude towards the judiciary, particularly in cases related to climate change. By Kieran Pender.

The climate case that has the Morrison government scrambling

Some of the litigants who took Environment Minister Sussan Ley to court and won.
Credit: AAP / James Gourley

It is not clear exactly who leaked the document. Was it the environment minister? Her office? Or did it come from elsewhere in the government? Whoever the culprit, their actions were improper. In an apparent desire to amplify the Morrison government’s attacks on judicial interventions in climate policy, they broke court rules.

Last month, conservative commentator Janet Albrechtsen wrote a column in The Australian about the federal Environment minister, Sussan Ley. Headlined “Judges have no place in deciding climate policy”, Albrechtsen quoted liberally from submissions by the solicitor-general, Dr Stephen Donaghue, QC. The article outlined the government’s argument that Justice Mordecai Bromberg erred in ruling that the minister owes Australian children a duty of care to prevent climate harm when considering whether to approve a coalmine expansion. That appeal – Sharma v Minister for the Environment – will be heard by three judges of the Federal Court in a multiday hearing that begins on Monday.

Under the Federal Court Rules and the court’s Access to Documents and Transcripts Practice Note, submissions are restricted-access documents, which means they cannot be revealed to the public without the court’s permission. Albrechtsen admitted as much in her column: “That submission cannot be accessed by the public until the hearing.”

Previously, the only individuals who had access to the submissions were the minister’s office, her lawyers at the Australian Government Solicitor, the court, and lawyers for the respondents – seven Australian teenagers. In response to questions from The Saturday Paper about Ley’s apparent contravention of court rules, a spokesperson for the minister said: “The appeal is before the court and we do not propose to comment.”

The contravention arguably constitutes contempt of court. The minister and her lawyers are also required by law to be “model litigants”, which includes adherence to such rules. The Australian Government Solicitor refused to respond to a list of questions that asked how the contravention was consistent with the lawyers’ model litigant obligations and paramount duty to the court. A spokesperson for the Federal Court said: “I do not wish to respond to your questions.”

While this incident may seem inconsequential – and the minister’s submissions, plus those of the teenage respondents, were subsequently made public by the Federal Court following a formal application by The Saturday Paper – it continues the Morrison government’s antagonistic attitude towards the judiciary. Last month, Justice John Griffiths blasted the federal Resources minister, Keith Pitt, for approving grants to a gas company despite having provided assurances he would not do so until ongoing litigation was resolved. In recent years, a number of federal ministers have been criticised by the bench for their conduct in immigration cases.

It also underscores the case’s importance. The leak to Albrechtsen appears to be part of a wider, orchestrated strategy. While publicly Ley has sought to brush off the significance of Bromberg’s judgement, the government’s decision to brief the solicitor-general, replacing private barristers that appeared in the trial, is another tell. Sharma is the most consequential climate case to reach the Australian courts. The government is throwing everything it can at the appeal.

“This is a really important case for Australia,” said Elaine Johnson, director of legal strategy at the Environmental Defenders Office (EDO). “But regardless of the outcome in this case, what really doesn’t change is the science. We know that children are at risk of harm now and into the future.”

 

When lawyer David Barnden started proceedings on behalf of his teenage clients and their litigation guardian, nun Sister Brigid Arthur, in September 2020, he was taking a gamble. In their pleadings, Barnden’s barristers set out a novel argument: in exercising her power to approve the Vickery coalmine expansion in north-western New South Wales, the minister would be acting contrary to a duty of care she owed to Australian children, and should be prevented by a court-issued injunction.

Sharma was the first climate case in Australia argued on the basis of negligence, the law that governs personal injury. A claim of this nature had never before succeeded in a common law jurisdiction. Tim Baxter, now a senior researcher at the Climate Council, had spent several years at the University of Melbourne considering whether a claim like Sharma was possible under Australian law.

“Negligence had never previously been applied to a problem like climate change,” he explained. “You’ve got a legal principle that was literally started with a half a decomposing snail that may or may not have existed [the foundational case in this field, Donoghue v Stevenson, involved a snail in a ginger beer bottle]. The legal principle that began there [is now] being turned to the most significant issue humanity has probably ever faced. It was really a matter of putting that before a court and saying, does it fit?”

Climate litigation has a long history in Australia, dating back to the early 1990s, when Greenpeace sought to stop a coal-fired power station on the basis of its greenhouse gas emissions. In the subsequent two-and- a- half decades, Australia has grown to be ranked second globally for the number of climate-related court cases, behind only the United States.

But until Sharma, the impact of Australian climate litigation had been held back by the nature of the domestic legal system. Most claims had been made in administrative law, which could hinder the approval of a project – say, a coalmine or power station – but would rarely stop it entirely.

Australia lacks the human rights and constitutional rights that have been deployed to greater effect in other jurisdictions. More “creative” litigation on these shores has also been limited by Australia’s punitive costs regime – public interest litigants can face a million-dollar bill for the government’s legal fees if they lose.

While these barriers still exist, determined climate litigators are beginning to explore more adventurous claims anyway. Barnden is leading the charge – he represented Mark McVeigh, who sued super fund Rest for an alleged breach of fiduciary duties (the case settled), and is also acting for Katta O’Donnell, a law student suing the federal government for allegedly failing to disclose climate risk in issuing bonds (last week, the government lost an attempt to have the case thrown out).

In August, the EDO won a major victory for their clients Bushfire Survivors for Climate Action, with the Land and Environment Court ordering the New South Wales Environment Protection Authority to develop a climate change policy. The EDO also has recently sued Santos, acting for the Australasian Centre for Corporate Responsibility, arguing that the energy company’s description of natural gas as “clean fuel” and claims to a net-zero pathway are misleading and deceptive.

But Bromberg’s judgement in Sharma, delivered in late May, has had the most seismic impact to date. In his 161-page, 70,000-word decision, the judge held that the minister owed a duty of care to mitigate the impact of the climate crisis on Australian children – and must consider that duty in assessing whether to approve the mine expansion. The implications, both for government decision-making and potential liability of large private emitters, are unprecedented.

“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children,” Bromberg wrote. “Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation of humans upon the next.”

Last month, Ley approved the mine anyway.

 

In the now-public appeal submissions, the solicitor-general argued that Bromberg’s decision to impose a duty of care on the minister was inappropriate. “The result,” the barrister submitted, “was to assert for the judiciary an unprecedented role in responding to the policy challenge posed by anthropogenic climate change, that being a role for which the judicial process is institutionally ill-suited.”

This argument, that climate change is a political matter and not something for the courts, has been frequently deployed in climate litigation in other countries, with mixed success. Where this argument has succeeded elsewhere, particularly in the US and Canada, it has been raised against speculative and wide-ranging cases.

The difference in Sharma is that the respondents’ five barristers, led by Noel Hutley, SC, have submitted in reply that while the context might be novel, the recognition of the duty of care follows well-established principles for the evolution of negligence. “Imposing duties on those whose conduct causes harm to others has always been the method of the common law, and an institutional responsibility of the judiciary,” they write.

Starting on Monday afternoon, the bench of Chief Justice James Allsop, Justice Jonathan Beach and Justice Michael Wheelahan will hear these competing submissions. Their decision is likely to be handed down before the end of the year. Whatever the verdict, an appeal to the High Court is almost certain to follow. For better or for worse, this case will influence the future of climate action in Australia.

This article was first published in the print edition of The Saturday Paper on Oct 16, 2021 as "A litigious climate".

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Kieran Pender is an Australian writer and lawyer, and an honorary lecturer at the Australian National University College of Law.