By Scott Walker and Melissa Castan
The Federal Court of Australia has handed down its highly anticipated judgment in the Australian Climate Case, a four-year climate case brought by Torres Strait Islanders against the Commonwealth.
Torres Strait Island Elders Uncle Pabai Pabai and Uncle Paul Kabai sued the Commonwealth on behalf of their community, arguing that the Commonwealth has a duty of care to protect Torres Strait Islanders from climate change. They argued both that the Commonwealth owed this duty when setting national emissions reduction targets, as well as a duty to protect property, Ailan Kastom (distinctive customary culture of the Torres Strait Island peoples), and the health and life of Torres Strait Islanders from climate impacts. The case was primarily funded by the Grata Fund, Australia’s first specialist non-profit strategic litigation incubator and funder.
The case had the potential to be a landmark moment in Australian legal history and the culmination of a groundswell that emerges from the Urgenda Case decided by the Supreme Court of the Netherlands in 2015, in which the Dutch Government was held to have a duty to protect people from climate harms.
But it was not to be. Justice Michael Wigney found that the applicants’ primary and secondary case in negligence failed. And so we are left once again asking: what will it take for a legal duty of the Commonwealth government to protect people from climate harms be recognised?
The case against the Commonwealth
The applicants’ primary case was that the Commonwealth owes a duty of care in negligence to protect Torres Strait Islanders, their traditional way of life, and the Torres Strait and its marine environment, from the current and projected impacts of climate change. The applicants argued that the Commonwealth was required to fulfil that duty of care by taking reasonable steps to ensure that, after considering the best available science, it identified greenhouse gas emissions reduction targets which would prevent or minimise the current and protected impacts of climate change on the Torres Strait and implement measures necessary to reduce Australia’s emissions consistent with those targets. In this regard, the applicants argued that the Commonwealth’s setting of emissions reduction targets in 2015, 2020, 2021, and 2022 failed to meet this standard of care and therefore breached the duty owed to the Torres Strait Islanders. In essence, they argued that the Commonwealth did not give any real or genuine consideration to the best available science in setting the emissions reduction targets to a level consistent with holding the increase in global average temperature to 1.5 degrees celsius above pre-industrial levels. The applicants claimed that the damage flowing from this alleged breach was primarily the loss of fulfilment of Ailan Kastom, including damage to sacred sites and burial grounds of their ancestors such they they were no longer able to engage in many of their traditional ceremonies and customs and life-sustaining activities like hunting, gathering, and gardening. Thus, they claimed that climate change had effectively severed key aspects of their connection with their traditional lands and seas.
The applicants’ secondary case alleged that the Commonwealth owed a duty to Torres Strait Islanders to take reasonable care to avoid causing property damage, loss of fulfilment of Ailan Kastom, and injury arising from a failure to adequately implement adaptation measures to prevent or minimise the current and protected impacts of climate change on the Torres Strait Islands. This argument concerned the funding of the Seawalls Project which involved the planned construction of seawalls on the islands of Sabai, Boigu, Pruma, Iama, Masig and Warraber. This project was jointly funded by the Commonwealth and Queensland governments. The applicants argued that this duty of care was to take reasonable steps to (a) provide predictable funding, including additional funding as required, which was sufficient to construct seawalls on the islands; and (b) to lead, coordinate, and establish a coherent plan for the provision of funding to protect the Torres Strait Islanders from sea level rise, inundation, and erosion through the construction of the seawalls. While some funding was obtained from the Commonwealth, the applicants alleged that the Commonwealth breached its duty of care in respect of the adaptation measures because the funding was delayed, unpredictable, and inadequate. This alleged breach also caused them to suffer loss of fulfilment of Ailan Kastom.
The Court’s decision
On the applicants’ primary case, the Court found that the applicants had established the factual allegations that underpinned this case, including that the Commonwealth identified and set emissions reduction targets in 2015, 2020, and 2021 it failed to engage with or give any real or genuine consideration to what the beast available science indicated was required for Australia to adequately reduce its emissions. They were inconsistent with the sort of action Australia needed to take to keep Australia’s temperature rise within 1.5 degrees celsius of pre-industrial labels. However, this was not the case when emissions reduction targets were set in 2022, in which the Commonwealth did have regard to the best available scientific evidence (although it may not have gone as far as some climate scientists would have advocated).
Further, the Court found that the Torres Strait Islanders have already and continue to be ravaged by climate change. This included flooding and inundation of townships, extreme sea level rise and weather events, severe erosion, the salination of wetlands and previously arable land, among other things. These impacts undoubtedly have and will have a significantly adverse impact on the traditional way of life for Torres Strait Islanders, and have resulted in the Torres Strait Islanders suffering loss of fulfilment of Ailan Kastom. As Justice Wigney starkly warned in his judgment summary:
Unless something is done to arrest global warming and the resulting escalating impacts of climate change, there is a very real risk that the applicants’ worst fears will be realised and that they will lose their islands, their culture and their way of life and will become, as it were, climate refugees. That would, of course, be a devastating outcome.
Nevertheless, the Court held that it was not open to recognise a duty of care in the way contended by the applicants. Key to this decision was the highly political nature of the setting of emissions reductions targets which are core matters of government policy, the reasonableness of inadequateness of which is not suitable to be subject to common law duties of care.
Even if a duty could be established, the Court held that the standard of care would not be one that required the Commonwealth solely to set the targets on the basis of the best available scientific evidence. The Court found that these are decisions which involve the making of policy and political decisions, such that it would not necessarily be unreasonable for a responsible government in the position of the Commonwealth to have regard not only to the best available science, but also to broader economic, social and political considerations. Additionally, it was held that the applicants had failed to make out that the impact from the failure to adequately set emissions reduction targets consistent with the best available scientific evidence in 2015, 2020 and 2021 had materially contributed to any harm that has or was being suffered by the Torres Strait Islanders because Australia’s emissions (while still large) were a relatively small proportion of global greenhouse gas emissions. In the words of Justice Wigney:
the Commonwealth’s ability to set emissions reduction targets does not give it any materially relevant control in respect of the risk of harm to Torres Strait Islanders from the impacts of climate change. Climate change is a global problem with global causes which require global solutions.
Ultimately, Justice Wigney found that the applicants’ primary case against the Commonwealth failed ‘not so much because there was no merit in their factual allegations concerning the Commonwealth’s emissions reductions targets’ but because ‘the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims’. The common law of negligence in Australia was particularly considered by Justice Wigney to be ‘an unsuitable vehicle through which the applicants could obtain relief’. This, he held, ‘will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellate courts, or by the enactment of legislation’. Until such a time, ‘the only recourse that those in the position of the applicants and other Torres Strait Islanders have is recourse via the ballot box’.
In other words, the Court could not have concluded otherwise on the current state of Australian law.
The applicants’ secondary case failed for similar reasons. In particular, it was held that the funding decisions concerning the Seawall Project were core matters of governmental policy which could not properly be subjected to common law duties of care. Further, the inadequacy of the funding was largely as a result of cost overruns and the administration of the project by local Torres Strait Island authorities rather than a failure on the part of the Commonwealth.
So where to now?
We seem once again to find ourselves in the position of having taken one step forward (a recognition that the applicants had made out many of the factual matters of their primary case) but two steps back (a firm recognition that the common law of negligence is an unsuitable vehicle to respond to climate harms). How then can the law respond?
It seems that the recognition of the inherently political and policy decisions of Australia’s greenhouse gas targets is one to stay. The Court’s comments about the Torres Strait Islanders having only political recourse through the ballot box to challenge such decisions call to mind the Full Federal Court’s comments in overturning the recognition of a duty of care owed by the Commonwealth Minister for the Environment when granting authorities for a coal mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in the Sharma Case. There, the former Chief Justice of the Federal Court held that ‘[t]o the extent that the evidence and the uncontested risks of climate catastrophe call forth a duty of the Minister or the [Australian Government to act], it is a political duty: to the people of Australia’. Thus, ‘[c]llimate (in)action is political … and courts should leave such policy-making to politicians’.
The Australian Climate Case therefore exposes the results of a failure to adequately entrench human rights in domestic law, which leads Australia in a diametrically opposed direction to the Urgenda Case in the Netherlands which based its landmark decision on the human rights obligations of the Dutch government flowing from the European Convention on Human Rights. Where human rights considerations have been at the centre of legal decisions on matters concerning climate change harm, we have seen a greater appetite for the law to respond.
For example, when a group of Torres Strait Islanders brought an individual communication to the United Nations Human Rights Committee arguing that Australia had filed to fulfil its legal obligations to protect the Torres Strait Islanders right to life, their right to private life, and their right to culture under the International Covenant on Civil and Political Rights, the Human Rights Committee were able to find that Australia had violated the Torres Strait Islanders’ right to private life, home and family and their right to enjoyment of culture through Australia’s inadequate response to the alarming threats that had been raised by Torres Strait Islanders since the 1990s as a result of climate change. The Committee also found that. The right to life includes the need to protect against ‘reasonably foreseeable threats…that can result in loss of life’, and this ‘may include adverse climate change impacts’ which amount to ‘some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’.
On an international level, we also await the International Court of Justice’s advisory opinion on the Obligations of States in Respect of Climate Change which is due to be handed down on 23 July 2025.
Domestically, we have also seen the legislated human rights instruments enacted in the Australian Capital Territory, Victoria and Queensland respond to climate change harms in a way that more traditional forms of law seem unable to do. For example, in its advisory opinion under Queensland’s environmental laws, the Queensland Land Court has held that the approval of a coal mine in the Galilee Basin, would breach the human rights of Queenslanders. Among other rights, it would breach the right to life by the project’s ‘material contribution to the life-threatening conditions of climate change (and associated economic and social costs)’ as well as the cultural rights of Aboriginal and Torres Strait Islanders peoples in a disproportionate way through the existential threat posed to Torres Strait Islanders and the erosion of traditional customs.
We have also seen promising moves in the Australian Capital Territory to include a right to a healthy environment in its Human Rights Act. While less immediately enforceable than other rights, it requires public authorities in the Territory to give proper consideration to and act in compliance with the right to a healthy environment when making decisions.
It is high time that the Commonwealth enacted broader stand-alone legislated human rights protection at a Federal level, including a right to a healthy environment. The Federal Parliamentary Joint Committee on Human Rights recommended the enactment of such legislation back in May last year. But, this proposal has not yet received official support from the Government, despite a majority in the Parliament to be able to pass such legislation. Perhaps it is this bolder human rights reform that might finally see some measure of climate justice in Australia.
Join us for the Annual Castan Centre for Human Rights Law Conference on Friday, 25 July 2025 where we will have a panel on New Challenges in Climate Change Litigation and Human Rights. Bringing together interrelated perspectives, this panel will examine the role of lawyers and courts in advancing climate action, recent developments in climate litigation, and the importance of community advocacy. You’ll have the chance to hear from Isabelle Reinecke (Executive Director and Founder of the Grata Fund, which funded the Australian Climate Case), Professor Steven Vaughan (Dean, Faculty of Law, Monash University) and Sr Bridig Arthur (social justice advocate and litigation guardian in the Sharma Case). Get your tickets now so you don’t miss out! Get more information and register here.
Scott Walker is a Research Fellow at the Castan Centre for Human Rights Law.
Professor Melissa Castan is the Director of the Castan Centre for Human Rights Law and Professor of Law in the Faculty of Law at Monash University.
This post was originally published on Castan Centre for Human Rights Law .