Does the Australian Government have a duty of care in relation to climate change?


On October 26, 2021, Wadhuam Paul Kabai and Wadhuam Pabai Pabai, First Nations’ leaders from the Gudamalulgal nation of the Torres Strait Islands, filed a case challenging the Commonwealth’s failure to cut emissions and asserting that the government’s inaction will force their communities to migrate to a new area.

The Plaintiffs presented scientific evidence proving that the following climate change-induced impacts already threaten their native title rights and Ailan Kastom, the Torres Strait people’s distinctive customary culture.

The Plaintiffs claim that the Commonwealth owed Torres Strait Islanders a duty of care to take reasonable steps to protect them, their culture and traditional way of life, and their environment from harms caused by climate change, and that the government has breached this duty as the targets are not consistent with the best available science.

The Commonwealth argues that is does not owe the plaintiff a duty of care as:

  • the duty pleaded is too high;
  • it not reasonably foreseeable that the conduct of Australia would cause global temperature increases such a degree that would cause somebody to suffer loss and damage;
  • a duty of care in relation to policy decisions is incoherent and inconsistent with administrative law principles;
  • as climate change is a global problem, Australia itself, has little control, and cannot ability to take actions to avoid harm to the Plaintiffs;
  • the duty sought would result in disproportionate and indeterminate liability precedent owed by the Commonwealth to any person and every time somebody suffers hard attributable to client change;
  • any action taken by the Commonwealth to mitigate the impacts of climate change in Australia does not mean it assumes responsibility for climate risk.

In any event the Commonwealth denies it breached a duty of care because Australia’s climate emissions targets are reasonable, and as it has taken additional steps in order to mitigate impact to the Torres Strait Islands. This matter is listed to be heard on 6 June 2023.

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