July 11- 17, 2021: Issue 501


Final orders in climate change case brought by teenagers finds morrison government does have a 'duty of care'; government immediately announces it will appeal decision in same week it funnels millions of taxpayer dollars into coal mine and fracking projects through NAIF

photo courtesy School Strike for Climate change

MELBOURNE July 8, 2021

Eight high school students today welcomed final orders in their historic court case that found the Federal Environment Minister has a duty to avoid causing children harm when approving a new coal project.

In his initial Sharma v Minister for the Environment Federal Court judgement on May 27, Justice Bromberg found that carbon emissions released from mining and burning fossil fuels will exacerbate climate change causing personal injury and death to Australian children.

Following additional submissions from both parties, as requested by Justice Bromberg, today’s ruling entrenches the duty of care into Australian law.

At this morning’s hearing, the court made a declaration that the Minister has a duty to take reasonable care to avoid causing personal injury or death to Australian children when exercising her powers to approve the Vickery extension project under national environment law.

The Minister was further ordered to pay the students’ legal costs in bringing the claim.

“It’s heartbreaking that young people even have to take to the courts to fight for basic protection against the climate crisis, when we’re so obviously facing its impacts right now, with temperatures increasing year upon year and natural disasters taking lives all around the globe,” said Anjali Sharma.

“But after too many years of politicians turning a blind eye, today’s historic ruling will make it harder for them to continue to approve large-scale fossil fuel projects that will only fast track the climate crisis. We are delighted that the law of the land now states that the government has a duty to avoid causing harm to young people.”

At the centre of the legal case is the pending approval of Whitehaven Coal’s Vickery coal mine extension project in NSW. The Court’s ruling in May found that emissions from the expansion would foreseeably expose the children to a risk of injury and death. Any approval would therefore risk breaching the ‘duty of care.’ However, it is now incumbent on Environment Minister Sussan Ley to decide how to proceed with the approval process.

“Throughout the world, countries such as Canada and Ireland have promised no new coal projects. However, Australia remains a global outlier, with no firm plan other than continuing to encourage new fossil fuel projects,” said Ava Princi.

“We hope this ruling will be an important step to getting Australia - and the world - on the right path to a safer future for us all.”

Lawyer for the students, David Barnden, said “Today’s historical outcome provides a safe harbour for the Environment Minister to act sensibly to not only protect the environment, but to ensure that she does not increase the risk of death and injury to children by approving new coal mines.

“It is now law in Australia that people in power have a responsibility to not harm children. We hope this breaks the political deadlock that is condemning young people to a treacherous future.”

The judgement is published on the Federal Court website here and is also available here.

The following day, July 9, 2021, the Minister for the Environment, Sussan Ley, made a statement and announced the Morrison Government’s intention to appeal the recent Federal Court judgment in relation to the Duty of Care decision.

''After carefully considering the judgment, the Minister has formed the view there are grounds on which to appeal.'' the statement said

''Following the handing down of orders by the Court yesterday, the Minister has now instructed the department to lodge a notice of appeal.'' the three sentence media release concluded.

The Morrison Government's announcement that it will fight the Duty of Care decision comes amid two recent announcements by Minister for Resources and Water Keith Pitt that it is allocating $175 million taxpayers dollars to support a coal mine in Central Queensland and $21 million taxpayer dollars towards as yet unapproved fracking in the Northern Territory through the government's Northern Australia Infrastructure Facility (NAIF).

On July 1st Minister Pitt announced a new Chair and board members for NAIF to lead the $5 billion NAIF through its next phase after Parliament approved reforms which widen the facility’s investment options to support projects across northern Australia.

NAIF's 'widened investment options' come in the wake of the Federal Senate disallowing a similar move to change the remit of ARENA so could be used to invest taxpayer funds in fossil fuel technologies, on June 22, 2021.

The Senate passed a disallowance motion which effectively cancelled out the new regulations issued by the Morrison Government's Emissions Reduction Minister, Angus Taylor, and will see ARENA revert back to previous regulations that related to only renewable energy technologies.

Minister Pitt has still not made an announcement regarding the PEP-11 proposal off our own beaches - the licence of which expired in February 2021, with the company still free to continue making announcements about their own plans to drill a well continuing at regular intervals in the meantime until an announcement is made. Should PEP-11 be given yet another extension and drill that well, Pittwater, the Central Coast and Newcastle may well see a fire such as that seen this week in the Gulf of Mexico

In response to Resources Minister Keith Pitt’s announcement that the Morrison government will give $175 million from the Northern Australia Infrastructure Facility (NAIF) to support the Olive Downs coal project in Queensland’s Bowen Basin, the Australian Conservation Foundation’s Suzanne Harter said:

“While investors around the world are getting out of fossil fuels, and Australia’s banks are becoming increasingly unwilling to finance coal projects due to their clear climate risks, the Morrison government is using public money to support coal.

“It seems investment in Olive Downs would not hold up for other investors, yet the Minister and the NAIF board have decided it is an acceptable use of public money.

“Recent amendments to the NAIF Act intentionally gave the federal resources and finance ministers greater powers to direct NAIF investments.

“It is deeply irresponsible to use public money to support a coal project in 2021 – flying in the face of overwhelming advice by scientists and even the International Energy Agency that a global pathway to net zero pollution by mid-century cannot include new coal or gas.

“Investing public money in coal defies Australia’s own economic regulators, which see climate change as one of the greatest threats to our economic system and have determined that climate risk is a material risk.

“Australia’s prudential regulator has advised all regulated entities it will assess the financial industry’s exposure to climate change in an effort to improve resilience. 

“Today’s announcement follows Minister Pitt’s use of regulation to provide uncompetitive, non-merit-based grants to companies that want to drill for gas in the Beetaloo Basin – against the wishes of many Traditional Owners and counter to global efforts to avoid catastrophic global warming.”

Stop Adani Avalon members at a mass Climate Strike in 2019.