Duty and the Environment Minister

On 27 May 2021, the Federal Court of Australia, in Sharma v Minister for the Environment (Sharma), decided that the Commonwealth Minister for the Environment (the Minister) owes Australian children a duty of care when exercising powers under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). 

Eight Australian high school children made an application to injunct the Minister from approving an application to extend the Vickery coal mine under sections 130 and 133 of the EPBC Act. If the application was approved, the extension of the coal mine would require the extraction of 33 million tonnes of coal, therefore creating an increase in CO2 emissions by approximately 100 million tonnes into the Earth’s atmosphere.

The concerns held by the children for the approval of the application were that the effects from such emissions would be likely to contribute to climate change, therefore increasing global surface temperatures and causing harm to Australian children.

In the landmark judgment of SharmaJustice Bromberg recognised that the Minister has a novel duty of care to children when she is exercising her powers under the EPBC Act. It was held that such an increase of carbon dioxide emissions into the Earth’s atmosphere had the potential to cause future harm to Australian children.

This historic case will have considerable implications for considering applications which can be reasonably foreseen as creating a real, significant risk of harm for Australian children from climate change.

Furthermore, the decision and the novel duty recognised, have the potential for class action claimants to initiate proceedings of a similar nature against applications for projects by Australian corporations, which involve the risk of causing a foreseeable harm from the increase of emissions.

Accordingly, the failure to uphold the duty will likely give rise to claims in negligence against Australian corporations. The decision is the subject of an appeal to the Full Court of the Federal Court of Australia.

The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.

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