(Image: Tom Red/Private Media)

The Morrison government has been forced to acknowledge that climate change driven by coal consumption will inflict massive costs on Australia but argues it owes no duty of care to Australian children in relation to it, according to documents it has filed in a landmark case.

Sharma v Minister for Environment, filed last year by eight young people against Environment Minister Sussan Ley, seeks to prevent the government from greenlighting a major expansion of the proposed Vickery coalmine in New South Wales, owned by Coalition donor and National Party-linked Whitehaven Coal. The case is awaiting judgment in the Federal Court in Melbourne.

The government’s statement of response, prepared by the government solicitor, makes for interesting reading in light of its refusal to address climate change and its support for more coal-fired power stations, its “gas-led recovery” and support for discredited fossil-fuel technologies like carbon capture and storage.

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In a series of statements, the government admits climate change is real and catastrophic for Australia and caused by gas and coal:

Since 1910, Australia’s climate has warmed by just over 1°C, and the surface temperature of oceans around Australia have warmed by around 1°C. Consistent with global trends, eight of the 10 warmest years on record in Australia have occurred since 2005 … The observed changes in the earth’s climate are caused by increased greenhouse gases (GHG) … The main contributor to that observed growth in atmospheric carbon dioxide is emissions from burning fossil fuels, including coal, oil and gas … Some further warming of the Australian climate is unavoidable.

Under all future emissions scenarios, it is very likely that: (a) average temperatures will continue to increase and Australia will experience more heat extremes and fewer frosty days; (b) extreme rainfall events will become more intense; (c) southern and eastern Australia will experience more extreme fire-related weather; (d) the time in drought will increase over southern Australia; (e) sea levels will continue to rise throughout the 21st century, with increased frequency of storm surge events; and oceans around Australia will warm and become more acidic.

And it admits the mining proposal from its allies at Whitehaven will make climate change worse:

[It] would result in a reduction of about 1Mt CO2-e of scope 1 emissions, increase of about 0.15 Mt CO2-e scope 2 emissions and an increase of about 100 Mt CO2-e of scope 3 emissions over the life of the extension project.

But it argues it’s only “speculative” that the applicants — young Australians — will be harmed by the project, because climate change will depend on the rate of reduction in emissions increases, which is also affected by other factors.

But above all: “The minister does not owe a duty of care as alleged.”

To find that the government owed a duty of care not to harm young Australians would, the government solicitor says, be “elevating as a paramount, and apparently overriding, consideration the potential for the controlled action to cause relevant harm … would involve the court in consideration of the merits of the decision [that] … would be inconsistent with the limited role of the courts in supervising the legality of statutory decision-making.”

What alarms the government’s lawyers most about the idea that it might owe a duty of care to young Australians is that it might impose a significant obligation to act upon it.

The applicants claim that the duty is owed to them, and all children born before the date this proceeding was filed who reside in Australia or anywhere else. Recognition of that duty would expose the minister to a potential liability of vast scope. Further, there is no logical reason to confine the duty for which the applicants contend to children already born at the time of commencement of this proceeding. If the duty was recognised, it would be a duty owed to all living persons (perhaps excluding the elderly) and perhaps also to children yet to be born. A duty owed to a class of such breadth is not one which the common law could sensibly recognise.

In short, the government admits climate change driven by coalmining will harm Australians, but it has no legal responsibility to stop expansions in coalmining because that would require the government to actually protect future Australians.

Do you reckon the government has a duty of care to Australia’s children? Write to letters@crikey.com.au. Please include your full name to be considered for publication in Crikey’s Your Say section.

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Peter Fray
Peter Fray
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