March 17-23, 2024: Issue 618


A call to end PEP-11 - ensure future generations are protected by a Duty of Care Bill: Paddle Out at Bongin Bongin Bay, Mona Vale Beach

Photo: Chris Barlow 

Over 100 people from the across the community joined independent MP, Dr Sophie Scamps for a paddle out on Saturday March 9 at Mona Vale Beach to call for the federal government to end PEP-11 once and for all. 

This was a youth led event, organised by a group of young residents. It was clear from the turnout, that young people want their voices heard when it comes to action on climate change. 

“It was so amazing to see such a big turnout of young people who care about showing up for their future. Being amongst so many of my peers has shown us the importance of showing up for our planet, and the numbers we saw yesterday showed us what we can do if we all come together to make a change,” Jess Muir local advocate said. 

Anjali Sharma, the young activist who took the former Environment Minister Sussan Ley to court for failing to consider the impacts of climate change was also in attendance.

Anjali Sharma at Mona Vale. Photo: Chris Barlow 

In his initial Sharma v Minister for the Environment Federal Court judgement on May 27 2021, 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, a July 8 2021 ruling entrenched the duty of care into Australian law. In the landmark judgement, the Federal Court ruled the Minister does owe a ‘duty of care’ to protect Australian children from the effects of catastrophic climate change. 

The Court drew a direct line between the mining of coal at Vickery and worsening climate change. The students' aim was to prevent Ley from possibly approving the Whitehaven coal mine extension project, near Gunnedah in New South Wales. They argued that approving this project would endanger their future because of climate hazards, including causing them injury, ill health, death or economic losses.

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 came amid two recent announcements by then 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 then as yet unapproved fracking in the Northern Territory  through the government's Northern Australia Infrastructure Facility (NAIF).

On March 15 2022 the Federal Court ruled unanimously that Federal Environment Minister Sussan Ley does not have a duty of care to protect young people from the harms of climate change. The ruling overturned a previous landmark win in July 2021 by eight high school students, who sought to stop Ley approving the Whitehaven Vickery coal mine expansion in New South Wales.

Ms Ley approved the coal mine extension on September 16, 2021, arguing her decision wouldn’t contribute to global warming because even if the mine was refused, other nations would step in to meet the coal demand. Although this sounds like a fit of pique and 'may as well be us' and 'look what you made me do', the judges reasons included that the control of emissions and the protection of the public from personal injury caused by the effects of climate change were not roles that the Parliament entrusted to the minister under current laws.

One judge ruled climate change as a matter for government to address, not the courts, stating the duty would be an issue “involving questions of policy (scientific, economic, social, industrial and political) […] unsuitable for the Judicial branch to resolve”.

A second stated there was insufficient “closeness” and “directness” between the minister’s power to approve the coal mine and the effect this would have on the children. He left open the possibility of a future claim if any of the children in the class action 'suffered damage'.

At Bongin Bongin Bay Ms Sharma spoke about the concept of a duty of care bill to protect younger generations which Dr Scamps wants to see enshrined into our environment and climate laws.

“The paddle out demonstrated incredible community support for a government duty of care to future generations and community opposition for such explorative and extractive projects such as PEP-11. It is clear that people of all ages and walks of life equally believe that future generations deserve to inherit a world which is safe and liveable, and not threatened by climate disaster increasing in frequency and severity,” Sharma said at the event.  

PEP-11, the plan to drill for oil and gas off the coast between Manly to Newcastle is strongly opposed by locals on the Northern Beaches. 

“As we confront the climate crisis, younger Australians deserve to be heard on decisions that will affect their future - even those too young to vote,” said Dr Scamps,

That’s why she’s supporting a push for a new legal concept, the “Duty of Care” to future generations that is being championed by young people and by her colleague independent Federal Senator, David Pocock.

“The idea of the Duty of Care is to ensure that the interests of younger and future generations are considered by lawmakers when they approve fossil fuel projects or pass laws that will have long term consequences,” she said 

“One example is the Petroleum Exploration Permit, known as PEP-11, which is proposed off our beautiful coast between Sydney and Newcastle,” Anjali said. 

“It’s a fossil fuel project that, if approved, could operate for up to 50 years and significantly add to our CO2 emissions.

“It also runs the risk of oil spills off our coast and degradation of our marine environment. 

“I am really pleased that the NSW government has now decided to legislate to prohibit seabed mining in state waters and associated works like pipelines and terminals in territory controlled by the state.

“Hopefully that will bring a halt to the project. But to put it beyond doubt, the Federal and State ministers for resources need to refuse an extension to the permit.

“Approving new fossil fuel projects when we know that our children’s future depends on urgently reducing emissions and preserving our natural environment is just madness,” Dr Scamps said.

The NSW Labor Government moved decisively to protect our beaches and coastal environment by banning seabed petroleum and mineral mining off the NSW coast this past week in securing the passage of the Bill they first tabled in February of this year. The Government had support from across the NSW Parliament to implement the ban, making NSW the first state in Australia to prohibit seabed petroleum and mineral exploration and mining.

The Environmental Planning and Assessment Amendment (Seabed Mining and Exploration) Bill 2024 amends the Environmental Planning and Assessment Act 1979 to prohibit:
  1. Seabed petroleum and mineral exploration and recovery in NSW coastal waters; and
  2. Other development within the state for the purposes of seabed petroleum and mineral exploration and recovery anywhere.
Their Bill reaffirms the NSW Labor Government’s commitment to protecting NSW coastal waters from offshore mining activities, the Government said.

'''These activities can have a devastating effect on our marine wildlife by releasing toxic materials, destroying habitat and creating harmful sediment levels. We must prevent this happening.'' the government said in a statement, 

''The Bill is designed to stop severe environmental damage that can result from offshore exploration and drilling including oil spills and greenhouse gas emissions.'' 

However, as pointed out by Ms Sharma, the Federal Government's pre-election campaign statements need to be honoured as well.

The Paddle for Change was a youth-led climate action event organised by young locals due to the growing call in the community for more substantial and urgent climate action.

“The paddle for change initiative and the amount of support it garnered clearly indicates that the northern beaches are on the same page when it comes to climate action for our youth. It was so exciting to see a passion across all generations for stronger policy and a harsher stance on potential fossil fuels projects,” Luke Peterson, Mackellar youth advocate. 

Mackellar MP Dr. Sophie Scamps along with Warringah MP Zali Steggall have voiced their support for Senator David Pocock’s Duty of Care and Intergenerational Equity Bill from the time that was scheduled to be introduced by the Senator.

The Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 seeks to amend the Climate Change Act 2022 to require decision makers to consider the wellbeing of current and future children when making certain decisions that are likely to contribute to climate change, including decisions that will increase scope one, two or three emissions.

An Inquiry into the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 is currently underway in the Senate with a report due on 27 March 2024.

Mackellar MP Dr. Scamps speaking at the Paddle for Change Duty of Care rally.
Photos: Chris Barlow