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As Australia’s climate policy disappoints, hope is found in court

In a world-first legal case filed in July 2020, a university student in Melbourne accused the Australian government of misleading investors in sovereign bonds by failing to disclose the financial risk caused by the climate crisis. If successful, the claim could compel the government to disclose how climate change might affect the nation’s economic growth or the value of the Australian dollar. The case is awaiting judgment.

In a landmark decision in May, the Federal Court of Australia found that Environment Minister Sussan Ley had a “duty of care” to protect children living in Australia from personal injury or death resulting from climate change. If not overturned, legal experts say the judgment could “constrain the ability of both government and private entities to undertake projects that contribute to net carbon emissions”.

Environment Minister Sussan Ley.

Environment Minister Sussan Ley.Credit:Alex Ellinghausen

The Environment Minister is appealing the decision, with the appeal to be heard on October 18.

In another major ruling in August, a NSW court ordered the state’s Environmental Protection Authority take steps to safeguard against climate change, requiring the authority to “develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change”.

The case was brought by the Environmental Defenders Office, a non-governmental legal service organisation, on behalf of survivors of the devastating 2019-20 bushfires. The state’s environment minister says he won’t appeal the ruling.

In late August, the Environmental Defenders Office lodged a new lawsuit against the oil and gas giant Santos, on behalf of the Australasian Centre for Corporate Responsibility (ACCR), alleging that Santos breached consumer and corporate laws by claiming to produce clean energy and have a pathway to net zero emissions.

The ACCR says the oil and gas company engaged in misleading or deceptive conduct by telling shareholders in its 2020 annual report that it produced “clean fuel” and provided “clean energy”.

On September 2, news emerged that a Commonwealth Bank investor was suing the lender, demanding to see internal documents on its decisions to finance fossil fuel projects to ensure it has complied with its own environmental framework.

And just this past week, there were two more significant climate litigation developments. In NSW, the Court of Appeal upheld the decision to refuse a coal mine in the Bylong valley, north-west of Sydney. The state’s Independent Planning Commission had dismissed the plan for the 6.5 million tonne-a-year mine two years ago, and a previous court appeal was also rejected in part because of the climate change impacts of digging up the fossil fuel.

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Meanwhile in Melbourne, a High Court legal challenge was launched against the state of Victoria, arguing it lacks the constitutional power to tax electric car drivers with a road user charge.

The recent United Nations Intergovernmental Panel on Climate Change report demonstrates the dire risks to our planet if urgent steps are not taken to reduce carbon emissions.

The climate crisis has become a human rights crisis, and the continual denial and inaction by successive governments in Australia will not go unchallenged.

Scott Morrison should keep this in mind when he travels to Washington later this week, for talks with US President Joe Biden, after the White House confirmed that the climate crisis will be on the agenda.

Federal and state governments, regulatory bodies and corporate actors have been put on notice. If they don’t take steps to mitigate climate change, they too could end up in Australia’s courts.

Sophie McNeill is the Australia researcher at Human Rights Watch.

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