Court Finds Government Does Not Have Climate Duty of Care

An Australian class action brought by two Torres Strait Islander leaders against the federal government over climate inaction has been dismissed by the Federal Court.

Traditional owners Uncle Pabai Pabai of Boigu Island and Uncle Paul Kabai of Saibai Island launched the case in 2021, arguing that successive governments had breached a duty of care by failing to act on climate science, putting their islands, culture and future at risk.

While Justice Michael Wigney acknowledged the “grave and pressing” threat posed by climate change to the Torres Strait, he ruled that the claim could not proceed under current negligence law.

“There could be little if any doubt that the Torres Strait Islands and their inhabitants face a bleak future if urgent action is not taken to address climate change and its impacts,” Wigney said.

The court further warned that without decisive global action, entire island communities could be displaced.

However, Wigney found that the legal duties alleged were “novel” and unsupported by existing law.

He said the claim failed not because it lacked factual merit, but because negligence law does not currently offer a clear avenue for relief in such cases.

“For the reasons given in detail earlier, that [climate] duty of care cannot or should not be imposed or imputed because it would be both inappropriate and impractical for the Court to pass judgment on the reasonableness of the Commonwealth’s actions concerning the setting of emissions reduction targets,” Justice Wigney wrote.

“That is because they involve issues of high or core government policy and political judgment which properly fall within the province of the elected representatives and executive government of the day, not the judicial arm of government,” he added.

“Unless and until the law in Australia changes … the only recourse that those in the position of the applicants and other Torres Strait Islanders have is recourse via the ballot box,” he concluded.

What the Case Argued

The plaintiffs contended that the Commonwealth had a legal duty to take reasonable steps to protect Torres Strait Islanders and their way of life by setting and implementing targets to cut greenhouse gas emissions aligned with the best available science.