[NB: This is a very draftish (and long) attempt to distil some really complex law into a format that is digestible for the public. I’m not sure I’ve got it right yet. So bare with me…]
Australia’s mistreatment of refugees has finally been gaining media attention, and rightly so. Tales of the mismanagement of the medical needs of refugee children paint a picture of a Government that is willing to sacrifice the most vulnerable of the world’s most vulnerable people in order to make a political point. For this, we should all be ashamed.
I acknowledge that there may not seem to be a clear link between the medical care of refugees and management of climate risk, but bear with me. This will become clear.
Many of the media headlines relate to Federal Court cases challenging the refusal of the Government to provide adequate medical care to children and others on the island. Almost without exception, these claims have resulted in the Federal Court ordering the refugees to be flown to Australia for that care. There have now been at least eighteen such cases that have resulted in such an order. Without fail, those cases have resulted in the relevant Government Department (currently Department of Home Affairs) ignoring expert medical advice provided to them, preferring the advice of bureaucrats in the Department as to the adequacy of the medical facilities on Nauru to treat the refugees’ very complex medical issues.
Hidden beneath these stories of shameful neglect, is a tale of quiet legal reformation. The Federal Court is now routinely standing up against the Australian Government and ordering it to follow the advice of experts. That is important, but it is not what is the most remarkable aspect of the cases.
What is most remarkable is that in their effort to obtain a legal remedy for their clients, refugee advocates have caused a fundamental shift in the Australian law of negligence. This shift means that successful legal claims can now be made before the effects of negligence have been felt, or even before the negligent act itself has occurred.
This shift has considerable consequences for an effort to compel the Australian Government to take its obligation to reduce greenhouse gas emissions seriously. It has plugged a gaping hole in the existing law that was a necessary precondition for success in climate negligence. So, despite the fact that simply reading about, let alone living, the lives of these people is difficult to stomach for an Australian citizen, it is important that we do. This is both because it is important to know what our Government is doing in our name, and because it has some potential, for those who care enough about climate change, to force one of the world’s laggards on climate change to increase their ambition.
Before I get to that, however, I need to flag that many of the court judgments that I mention in this post discuss distressing details. Sexual violence and acute mental health issues including suicide ideation (thoughts and plans of suicide) and suicide attempts will be mentioned here. Many of the cases involve very young children. I have tried my best to keep things removed from the specific factual detail of these cases and stay with the legal detail, but some of the more distressing detail needs to be discussed in order to understand the quiet legal reformation I mention above.
In short, if you are not up to the task right now:
Less seriously, this is also a long read. There is a lot of detail that needs to be covered to understand what’s going on. We’re going to be together for about the same amount of time that it’ll take you to read a book chapter, and goes well beyond what a standard blog post would cover. It seems like the internet is allergic to pieces of this length, but you’re up to it. Grab a cup of tea and settle in. I promise it is worthwhile.
I write this piece in the context of yet another failed Government scheme to reduce our emissions. In the past few weeks, Malcolm Turnbull announced that he was giving up on the emissions component of the National Energy Guarantee. That policy was very, very far from perfect — a 2% reduction over the decade of 2020 to 2030 is literally worse than nothing at all — emissions from the electricity sector will almost certainly drop by more than this naturally over the course of the decade as renewables and batteries come online and large-scale coal stations close. It represents yet another failure by the Australian Government to act to deal with climate change. We have had so many now that it is hard to keep count.
It is written in the context of a Government who — despite their own Department advising them otherwise — have repeatedly asserted in the media that Australian does not need any new policies to meet even our very weak commitment under the Paris Agreement.
It is written in the context of yet another mid-term change of Government caused by yet another Prime Minister falling on their sword (or being pushed) because of climate change. In just over ten years, we’ve lost five Prime Ministers because of a failure to effectively negotiate climate policy (Howard, Rudd, Gillard, Rudd again and Turnbull all lost their Prime Ministerships, largely, because of real or perceived climate change failures). The result of the most recent leadership change appears, to be a Government who is less inclined to act on climate change, and the most recent Government achieved precisely nothing.
In light of the stubborn refusal to listen to expert advice this decade in Australian politics, myself and many others have been looking seriously at methods that might be used to compel action that more in line with the best available science.
I personally take my inspiration from the Dutch Urgenda case. The post will turn to this briefly, before looking at the refugee cases and then flicking back to what it means for climate litigation in Australia.
Urgenda v Netherlands
In 2015, a Dutch NGO, the Urgenda Foundation, famously held their Government to account for their inadequate action on climate change. The case was heard in The Hague District Court (not to be confused with the International Criminal Court which is found in the same city and often informally referred to as ‘The Hague’!). Realising the international importance of their decision, the judiciary took the effort to provide an English translation of their judgment at the same time that they released the Dutch version. It is available here.
In the judgment, the Dutch Government were compelled, by force of law, to increase their ambition from their current targets, a roughly 16% emissions reduction by 2020 when compared to their emissions in 1990, to a reduction of 25% across the same time-frame. The claim was determined on the basis of the Dutch law of ‘hazardous negligence’.
(A QUICK SIDE NOTE: The District Court is the lowest tier in the Dutch judicial hierarchy and the case is currently being appealed by the Dutch Government on a number of grounds, none of which are relevant to this post. Arguments in this appeal were heard in The Hague Court of Appeal (the middle tier in the hierarchy) in late-May. An English summary of the arguments is available on twitter in this thread. The judgment is due to be handed down on the 9th of October this year. No matter the outcome in this middle tier, the case will likely travel to the Supreme Court where any judgment of the Court will be final. As such, a final outcome in the case is very far away.)
Understandably, the case was widely reported and generated a lot of excitement. Individuals and organisations in many jurisdictions have sought to follow suit (no pun intended, but credit taken anyway). This includes Australia.
Translating a Dutch claim to an Australian context, however, is very difficult. For a start, the Dutch legal system is civilian, where judges work from an extensive and binding civil code (the ‘Burgerlijk Wetboek‘) as their first point of reference. In contrast, Australia follows a common law approach, where judges decide cases on the joint bases of precedent (previous judicial decisions which are binding on the Court) and statutory authority with reference to the Constitution where necessary. The Dutch case has no value in an Australian courtroom whatsoever. An Australian claim, should it succeed, would need to re-establish every legal and scientific fact.
While the Dutch claim was run on multiple fronts, the only one that proved successful was in the Dutch law of ‘hazardous negligence’. Despite the Dutch and Australian legal systems being on opposite sides of the great divide between the two largest of the world’s legal systems, the Dutch law, through a remarkable process of convergent evolution (and probably also some nicking of good ideas throughout history), bears a striking similarity with the Australian law of negligence. Just like sharks and dolphins share a similar body shape despite having vastly different evolutionary origins, so it is with negligence across the Civilian/Common law divide.
For every similarity — including the fact that both jurisdictions base their law on the same duty of care/breach of duty/resulting damage structure — there are a number of differences. To bring a claim like Urgenda to Australia every single one would need to be dealt with. I will be talking to one here, and pointing out how the Australian legal system, unique among all in the Common law world, is bridging the gap.
‘Quia timet‘ injunctions in negligence
One completely uncontroversial aspect of the Urgenda case was the choice of remedy. Dutch negligence is defined in Book 6, article 162 of the Dutch Civil Code (unofficial English translation). Book 3 of the Code, article 296 (unofficial trans) creates a right to an injunction — a Court order requiring a person to do or not to do a particular thing — against any legal obligation that a person might have. This includes an order compelling a person to repair damage that has already occurred (as opposed to paying damages, which would allow the victim to repair it themselves) and an order to prevent a person from doing that damage in the first place. This is the basis of the Court order in the Urgenda case which mandated that the Dutch Government increase its climate ambition.
In an Australian legal context, we would call this kind of court order a quia timet injunction. It refers to a court order compelling someone to do — or not to do — something in order to prevent harm before any harm has been felt. This makes it a way to fix legal problems before they occur. Given how poorly many forms of damage are compensated by payments of money after the fact (‘damages’), if damage is predictable, it often represents a far better type of justice.
While injunctions are common in Australia, before 2016 there had never been any kind of injunction — before or after the fact — issued in a negligence claim. Nor had a before-the fact injunction been issued in any other similar legal system, such as the UK, New Zealand or Canada.
This was important because, when organisations and individuals first mentioned the Urgenda case to our lawyers, one of the first reasons given for what it would not work here was that we don’t even have the remedy of an injunction for negligence.
There was no good reason why one could not be issued, but the fact that there had not been a single such remedy in the 80 years since modern negligence came to Australia left a lingering disquiet: What if there was some good, as yet undiscovered reason, for this obvious gap?
Certainly, there is one logical issue, at least if you rely on the common use of the word ‘negligent’. The way negligent is used by non-lawyers almost always involves some degree of accident. Otherwise, we would just say that something was ‘deliberate’. However, the legal concept covers a deliberate action as easily as it covers one that is merely careless.
However, most of the time, even where the person committing the wrong is acting egregiously poorly, the future victim will very rarely know of their own vulnerability at all. It would be an incredibly rare circumstance where the future victim knew well enough and with sufficient warning to trot off to Court to get an injunction.
A key counter-example is in Australia’s recent swathe of medical negligence cases involving refugees and the Australian Government.
Australia’s immigration policy
Under Australia’s immigration policies, asylum seekers who arrive in Australian territorial waters by boat are diverted to a third-party country (currently Nauru or Papua New Guinea) where their asylum claims are processed. If they are found to be refugees under the Refugee Convention because they are fleeing a well-founded fear of persecution in their home country, they must stay on Nauru or PNG indefinitely in the detention facilities (or recently in open compounds that were formerly detention centres), unless another country agrees to take them.
While in the facilities, all services are paid for by and administered on behalf of the Australian Government. Legally, and of course morally, it is still Australia that is responsible for their care. After all, we did put these people, legally determined to be refugees, in this situation and are — unintentionally or deliberately — causing these human beings, including children, to suffer in order to make a political point.
This policy is explicitly designed to act as a deterrent. The facilities are — look, I’m comfortable with saying disgusting abuses of human rights, but I’m worried about turning off readers, so instead I will say… not great.
Many of these people are minors. The situation has led to many of the refugee children developing acute or chronic mental health issues. Meanwhile, Nauru — where all refugee children are kept — has no facilities for inpatient care of minors experiencing psychiatric illness. Because of Australia’s policy that no persons who arrive by boat will be brought to Australia. Despite Australia’s legal responsibility, the children are being denied the level of care that is owed them. Their lawyers have been taking the Government to Court in order to force the Australian Government to provide it.
Tracking down these cases is difficult, given they are heard by the lower Courts, but there have been eighteen such cases that I know of where the Government has been ordered by the Court to provide appropriate medical services to refugees under their care.
Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17
The first of these cases was in 2016 and involved an adult woman — whose name cannot be published to protect her identity — who had complex medical needs and was seeking a termination of her pregnancy.
The pregnancy came about because the plaintiff was raped while unconscious after a seizure. At the time, she was living on Nauru as a result of Australia’s detention policies and had been found to be a refugee. The woman, her doctors and Australian Government all agreed that the termination was necessary to preserve her health. However, the hospital on Nauru did not have the medical facilities to cope with her complex medical needs. As well, a termination of pregnancy under these circumstances was almost certainly illegal under Nauruan laws. To conduct the procedure there would have been unsafe and had the potential to cause catastrophic harm or even death of the plaintiff, and would have also exposed her to criminal prosecution.
The Australian Government responded by flying the pregnant refugee to Port Moresby, Papua New Guinea and had arranged for the termination to be conducted at the Pacific International Hospital. The plaintiff contended, and the Court accepted, that as with the facilities in Nauru the Pacific International Hospital lacked the resources to handle the plaintiff’s medical needs. She claimed, and it was accepted, that this exposed her to a risk of catastrophic harm. On top of this, dormant laws within Papua New Guinea meant that the plaintiff still faced the risk of criminal prosecution (as did her doctors) if the termination went ahead in Port Moresby.
Importantly for the legal claim in negligence, while the plaintiff had of course been harmed before the trial occurred (by her assailant), the Australian Government was not responsible for this harm. The only harm that could be attributed to the Australian Government was contingent on the procedure going ahead. As such, a fundamental requirement of a conventional claim in negligence — past damage — was entirely absent.
Every single case in negligence in the common law world before this case involved a claim for damages as the primary remedy. A complete claim in negligence where the remedy chosen by the plaintiff is damages requires that the plaintiff has to have experienced some harm as a result of the negligence. The harm felt need not amount to the full scope of the damage that will eventually be felt, but there must be some material consequent injury.
But Plaintiff S99 had not experienced legal damage. The worst that had occurred to her — that might be attributed to the Australian Government — was that she was flown from Nauru to a hotel in Port Moresby.
Importantly, if the refugee were to wait until after the procedure — and after she had experienced damage — it would also be incredibly difficult to compensate her for the harm with a monetary sum. The risk to her health was catastrophic, and assessing the damage done by exposing her to the risk of imprisonment in monetary terms? Well, that is not exactly simple.
Really, the only useful remedy that she might be awarded by the Court would be to stop the procedure from going ahead in Port Moresby and have it performed it elsewhere. This is what, for the very first time, the Federal Court ordered in this case.
The judge set out, in very clear terms, that the Australian Immigration Minister owed the plaintiff a duty of care, and that duty extended to a requirement that the Minister procure an undoubtedly safe and legal termination for the plaintiff. This would require the Minister, under the circumstances, to fly to plaintiff to a hospital that had the resources to deal with her complex needs. For the most part, these resources could only be found in the developed world. The termination must also be unquestionably legal in the plaintiff’s circumstances. The judge ordered an injunction which compelled the Minister not to fail in meeting this duty. It is safe to assume that the Government complied with this order and Plaintiff S99 received her termination under those circumstances.
For the remainder of 2016, and most of 2017, the principle of the case — the idea that someone might receive a remedy from the Courts in negligence before harm has been done — lay dormant. One failed attempt to use a negligence-based quia timet injunction occurred in D7 v Minister for Immigration and Border Protection (2016) 244 FCR 1. There, the plaintiff had been flown from Nauru to Pacific International Hospital in Port Moresby, as Plaintiff S99 was, for surgery on her gall bladder. Her lawyers sought an injunction to compel the Minister to organise treatment for two other medical conditions while she was there. In that case, it was found that a Court ordered injunction would likely be unnecessary to ensure that the plaintiff obtained appropriate care. The Court refused to grant one and instead ordered that the Minister should ‘use their best endeavours’ to ensure that the plaintiff received appropriate treatment.
… And then there were many others
It wasn’t until late 2017 that the concept of this kind of before-the-fact injunction came up again, in FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection  FCA 63.
The case involved a pre-teen refugee who had a recent history of suicide attempts while living on Nauru. The specialist child psychiatrist who gave evidence at the hearing contended that she was at risk of developing a psychotic depressive illness.
The evidence in the case was that suicide ideation and attempts, and the form of early psychosis on display are all extremely rare in a child of this age. Treating an individual in these circumstances was very complex and required acute specialist inpatient care of a kind not available on Nauru. The Australian Government does provide child psychiatric care for refugees on Nauru, but this is on a fly-in-fly-out basis by Australian psychiatrists. There is no suitable facility for inpatient care of children on the island.
Nonetheless, the Australian Government contended, despite the advice of the counsellors and psychiatrists under its employ, that the child at the centre could be appropriately cared for on Nauru and did not need to be evacuated. The individual responsible for making this assessment of the adequacy of this approach was not an individual with any expertise in psychiatry, let alone child psychiatry, but was an Assistant Commissioner with Australian Border Force.
Understandably, the judge sided with the experts in this case and ordered that the Australian Government should move the child off Nauru ‘as soon as reasonably practicable’.
In the interests of completeness, the other cases from this year using the combination of negligence and an injunction are below. This list includes all of those cases I know about up until 18 October 2018:
|AYX18 v Minister for Home Affairs  FCA 283 (6 March 2018)|
A 10-year-old refugee with a history of attempts on his own life ordered by the Court to be transferred to Australian specialist inpatient care
|DCQ18 v Minister for Home Affairs  FCA 918 (15 June 2018)|
A 30-year-old with a history of attempts on her own life ordered by the Court to be transferred to Australia for termination of pregnancy
|DMX18 as litigation representative for DNC18 v Minister for Home Affairs [no judgment] (6 July 2018)|
A refugee child transferred with her mother, father and brother from Nauru to a place where she could receive ‘immediate comprehensive psychiatric assessment’ and treatment.
|BAF18 as litigation representative for BAG18 v Minister for Home Affairs  FCA 1060 (11 July 2018)|
A 17-year-old refugee with history of self-harm and suicide ideation ordered by the Court to be transferred to specialist inpatient or acute community-based care
|DJA18 as litigation representative for DIZ18 v Minister for Home Affairs  FCA 1050 (11 July 2018)|
A 2-year-old refugee with encephalitis who had already been transferred to Port Moresby ordered by the Court to be transferred to Australia for appropriate care
|DRB18 v Minister for Home Affairs  FCA 1163 (25 July 2018)|
A 27-year-old who had potentially suffered a penetrating eye injury ordered to be transferred to appropriate medical care, not available on Nauru
|DWE18 v Minister for Home Affairs  FCA 1121 (26 July 2018)|
A child suffering resignation syndrome with a history of self-harm ordered by the Court to be transferred to specialist inpatient care in Australia
|DYK18 by her litigation representative DYL18 v Minister for Home Affairs (31 July 2018) [no judgment]|
A minor transferred, along with her mother and sister, from Nauruto Sydney for adolescent inpatient psychiatric assessment and treatment
|EIV18 by her litigation representative EIW18 v Minister for Home Affairs (24 August 2018) [No judgment, but one is expected].|
Child suffering resignation syndrome ordered by the Court to be transferred to Australia for specialist inpatient care
|EHW18 v Minister for Home Affairs  FCA 1350 (31 August 2018)|
46-year-old refugee on Manus Island who was diabetic, blind in one eye from an assault in PNG and going blind in the other and also at a high risk of suicide ordered to be removed from PNG to Australia for treatment
|ELF18 v Minister for Home Affairs  FCA 1368 (3 September 2018)|
Female refugee previously hospitalised ‘for a considerable period’ after a violent incident on Nauru, suffering PTSD and at risk of self-harm ordered to be transferred to Sydney for inpatient care
|EMK18 v Minister for Home Affairs  FCA 1357 (6 September 2018)|
Refugee mother who displayed signs of a psychotic depressive illness and who had attempted to take her own life, as well as her 16-month-old baby who was showing signs of unusual aggression, ordered to be transferred to Australia for assessment and treatment
|EUB18 v Minister for Home Affairs  FCA 1432 (18 September 2018)|
Refugee in her mid-20s who had drastically self-harmed in an attempt to take her own life after being sexually assaulted on the same day as having her application to be transferred to the US refused ordered to be transferred to Australia for treatment
|EWR18 v Minister for Home Affairs  FCA 1460 (21 September 2018)|
A mother, her minor son and the wife of another son (who had died by his own hand on Nauru), all of whom had developed acute mental illness with acts of self-harm, suicide ideation or attempts and/or food and fluid refusal ordered to be transferred to Australia for treatment
|FLH18 as litigation representative for FLF18 v Minister for Home Affairs (18 October 2018) [no judgment, but see the Government’s unsuccessful appeal from these orders]|
A minor living on Nauru ordered by the Court to be brought to Australia for appropriate medical care in a tertiary level hospital with her parents and two siblings
|FJG18 v Minister for Immigration and Border Protection, Citizenship and Multicultural Affairs  FCA 1585 (19 October 2018)|
12-year-old boy on Nauru ‘at imminent risk of death’ according to medical professionals and who had lost 14% of his body weight through food and fluid refusal ordered to be transferred to Sydney Children’s Hospital for appropriate treatment
Media reporting shows that there are several other cases afoot seeking the same remedy. The problem of child mental health on Nauru has been described as ‘dangerously chaotic’ with serious mental health issues in the child refugees on the island being described as a ‘contagion’.
No doubt there will be several more cases that follow these. In less than a year, the Australian Government has refused adequate care to twenty extraordinarily vulnerable people, half of them children and one of them aged only 16 months, and been ordered to remove them from the island. This is just the cases that have required the Court to make a clear order and just the cases I know of. On top of this, several others have been transferred only after threatened legal action, which the Australian Government knows by now that it will lose. Sadly, it still forces many of the cases to go before the Court.
Drawing the link with climate (in)action
The link between these cases and the case to compel the Government to take action on climate change may not be completely apparent, but these terrible cases of neglect speak to two important issues in a potential climate case: (1) the availability of an injunction in negligence before harm has occurred that can be reliably attributed to the Government, and (2) the question of whether Courts can interfere in overtly political disputes where the Australian Government offers a bare assurance that it is taking risks of catastrophic harm seriously, despite expert evidence to the contrary.
Before turning to each of these issues, it is important to note that none of the cases mentioned above were made by judges of the higher tiers in the judicial hierarchy. All of these cases were heard in the Federal Court (as low in the hierarchy as you can go in a matter such as this), each in a trial presided over by a single judge, and most on an interlocutory (pre-trial) basis. This makes their value as precedent low.
However, the argument is legally very strong. Seven different Federal Court judges (Justices Bromberg, Perram, Robertson, Thawley, Mortimer, Murphy and Burley) have heard these cases. No judge who has heard these cases has accepted argument that it is incorrect to issue injunctions compelling the Government to act with due care in the face of catastrophic risks. Because of this, while, technically speaking, the value of the precedent in these cases is low, it is difficult to see, at least in the refugee cases, how an appeals court, or even the High Court, could decide differently.
The availability of injunctions
In Plaintiff S99/2016 v Minister for Immigration and Border Protection Justice Bromberg stated that the following are the only circumstances where a plaintiff, practically speaking, might have the opportunity to receive an injunction in negligence (at ):
(1) the plaintiff has perceived the risk;
(2) the plaintiff is not prepared to take the risk;
(3) the risk is, in theory, avoidable or reducible;
(4) but, the risk is not in the power of the plaintiff to avoid or reduce;
(5) and, the risk is in the power of the defendant to avoid or reduce; and
(6) the plaintiff has enough time to go to court before the risk eventuates.
These factors can all be found in the context of the failure to appropriately regulate greenhouse gas emissions for the right plaintiff. Many have effectively perceived the risk, including the Australian Government itself. Many are not prepared to face the risks of harm. The risk is reducible through effective regulation of greenhouse gas emissions, as well as through effective steps to adapt in preparation for those risks. An individual plaintiff has very little ability to avoid or reduce the risk effectively. The Government does have the power to effectively regulate greenhouse gas emissions. Finally, there is still time to take effective action.
Other considerations that are cited elsewhere in the judgment concerning whether an injunction should be issued include that the harm should have a high probability of occurring (that it should be ‘imminent’) and that the ‘balance of convenience’ between the plaintiff’s and defendant’s rights should be in favour of the injunction being issued.
‘Imminence’ in the sense used by that judgment, and others relating to these preventative injunctions, does not mean that the risk will materialise into concrete harm in the very near future. The timing is important, but the term, in a legal sense, simply means that the injunction cannot be issued until the probability of the risk materialising is suitably high. This is usually described in the form of words that this type of remedy ‘should not be granted prematurely’.
No-one familiar with the scientific literature on climate change could describe the probability of harm as low. With one degree of warming, we have already seen mass-bleaching on the Great Barrier Re with two bleaching events leading to the death of half of the reef’s individual corals, and a provable increase in other natural disasters. Recent attribution studies have shown links between climate change and the New South Wales drought and the associated increase in bushfire weather. We can also, in the long term, expect big changes in rainfall (annual totals and intensity of individual events), increases in coastal flooding through the combination of sea-level rise and changes to storm strength, and increases in the intensity and frequency of deadly heat waves.
We can already detect changes in many climatic events, but the warming we are currently feeling is the fault of emissions from decades ago. Even if, through some mysterious revelation those in power worldwide chose to fully decarbonise every single industry overnight — as well as reducing our emissions of every other greenhouse gas to zero immediately — the globe would continue to warm for decades to come. The inertia in the climate system means that the effect of today’s emissions will not be felt in full for several decades. We know that climate change and its effects will get worse, and we already face life-threatening and economy-wrecking harms.
The question of ‘balance of convenience’ is also important. It refers to the need to not interfere in the legal dispute unless: the risk of harm to the plaintiff (if the Court does not intervene) is higher than the burden on the defendant (if the Court does intervene). With climate change, we know the risks that are born by certain risk-exposed plaintiffs and they are immense. What are the burdens on the Government if the Court does intervene? Financial burdens? Sure, it will be expensive, but far less expensive than not acting. This is something that, if you take a longer-term view, they should be doing anyway out of pure self-interest, or their (non-enforceable) obligation to regulate this ‘peace, order and good government’ of the nation. Political burdens? They have chosen a course of action only to have it over-ruled by the Court. There will be some egg on some faces.
So, with climate negligence, it would seem that injunctions are at least arguably available based on a simple run-down of the facts. The specifics of how this will work will depend on the evidence that is lead at trial and the choice of the plaintiff. But there is no legal hurdle here.
The ‘political questions’ question
Historically, Courts in Australia have shown a great deal of deference to the other branches of Government where legal disputes get too political — even if there is no good definition of what exactly is political, and even if certain judges would not admit that what they are doing is avoiding political disputes.
But there is good reason for them doing so. Where disputes are political, the best place to decide them is, of course, in the branches of Government that are directly elected by the country’s citizens (members of Parliament) or by people appointed by those who are elected (Ministers technically, and the public service). These people, directly or indirectly, report to the ballot box and so can theoretically be removed if their behaviour is not up to a standard that the population expects of them. This can be direct, by voting out members of parliament at the next election or indirect, through those members of parliament ensuring the removal of Ministers and bureaucrats. In areas that are political, this provides the main way that citizens veto conduct that is deemed to be in breach of community standards.
But in Australia, we are a country governed by the ‘rule of law’, meaning that the laws as they apply to individuals (and between individuals) equally apply to the Government. And while the ballot box is one means of ensuring that community expectations are met, it is not a means through which laws are upheld. That role lies with the Courts.
The law of negligence in Australia, perhaps more than any other (with the exception of administrative law), is particularly concerned with staying off the Government’s toes and not interfering where issues become too political. Over time, numerous legal rules have developed over whether and how Courts can interfere in decisions that are political. These rules have a very high churn rate. As soon as the rules are settled upon by the Court, they are discarded again as unhelpful or unprincipled. Justice Kirby, formerly of the High Court, once showed his frustration with this area of law by citing Homer’s The Iliad in his judgment on a case involving such a test:
“[S]ave us from this fog and give us a clear sky, so that we can use our eyes”.Kirby J in Graham Barclay Oysters v Ryan (2002) 211 CLR 40, 211
Identifying principle in this area is difficult. Each of the tests that have come into being, only to be winked out of existence shortly after, has involved the Courts refusing to pass judgment on issues that are overtly political out of deference to the political branches of Government and as a consequence refusing an otherwise available remedy to the person who was injured.
The effect of each of these tests is to say ‘The rule of law applies in Australia, but just not here and just not now.’
The refugee negligence claims detailed above have shown a very different attitude is rising through the Courts though.
Refugee policy in Australia is incredibly political. The reason that Australia has established a policy of refugee deterrence which is expressly designed to be without compassion is because it works with the Australian electorate. It is almost certainly in violation of our obligations at international law, as well as every major religion and established moral code, to treat those escaping a ‘well-founded fear of persecution’ in this way. But we do it because we must ‘stop the boats’, despite the very real effects that locking people away on island prisons is having on their welfare.
The deference of the past to the other branches of Government in this area is quickly eroding in the cases involving refugees. I will point to just one example, where the judge in question let his frustration with the Government’s approach to expert advice show:
I note the next plane out of Nauru is on Wednesday 7 March 2018. To be quite clear, the boy and his mother should be on that plane.Perram J in AYX18 v Minister for Home Affairs  FCA 283, 
This is no longer deference in light of the political nature of the dispute but is, instead, the tone adopted by a parent when speaking to a misbehaving child.
And the frustration is entirely understandable. In that case, the Australian Government ignored the advice of three expert child psychiatrists to place in specialist inpatient care a 10-year-old who had been suffering acute psychiatric distress for 18 months, who had made three separate attempts to take his own life, and whose health was declining. The Government preferred the opinion of one other doctor (whose qualifications were not mentioned) who advised that inpatient care would not ‘add much value’. This is not an appropriate use of expertise by the Government.
So, what of climate change and the weight of scientific evidence provided to the Australian Government that catastrophic harm will occur? What action is the Government taking on that?
The most recent policy to ‘reduce’ Australia’s emissions was the National Energy Guarantee, now dead. A colleague of mine from the Australian-German Climate and Energy College, Dylan McConnell, charted its effect on Australian emissions:
Or we could look to the bare assertions of Government that Australia will meet its Paris Agreement obligations — as inadequate as they are — and the fact that this claim flies in the face of the Department of Environment and Energy’s own numbers from last year.
Or we could look to the Emissions Reduction Fund, where significant proportions of the purchased abatement come from projects that predate the scheme by a full decade, but the legislation still considers the projects new.
Or we could look to the fact that Australia, the highest per person emitter of greenhouse gases in the OECD according to UNFCCC data is still increasing its emissions every single year.
Could this, like the refugee cases, be deemed legally negligent? The same stubborn refusal to listen to expert evidence is certainly present. Our Government’s action on climate change is in line with none of the expert advice, and is not even in line with its own goals in the Paris Agreement.
So, where to next with the claim?
The path forward
Despite the contribution that these cases of mistreatment of refugees has made to the strength of an Australian climate case, there is still a long way to go before such a claim might be considered likely to succeed. Most of this is based on the sheer novelty of the legal approach taken in the cases.
One of the key issues is proving that a particular individual or group of individuals is likely to be harmed with sufficient certainty by a climate-related extreme event that a Court might consider itself well placed to issue an injunction compelling the Government to meet a duty of care it owes to those living here. As the science of climate change attribution improves, this will become clearer, but we already know that certain extreme events would be virtually impossible without the contribution of climate change. Could a tourism operator on the reef (or a series of tourism operators dotted along its length) bring a claim in negligence, before the next massive coral bleaching event occurs, in order to force the Australian Government to act in a way that is commensurate to the risk to their livelihoods? Do they alone, or in aggregate, have the ability to prove harm that is imminent?
Such an injunction could not compel the Government to make laws, because this is the exclusive responsibility of the Parliament, but it could compel them to take greater ambition elsewhere. For example, it could compel the executive, the country’s Ministers and bureaucrats, to be more ambitious in their non-legislated goals. Almost the entire approach to greenhouse gas reduction strategy in the country at the moment is outside legislation and the terms of Government’s ambition is set nearly exclusively by the relevant Ministers. This could be reshaped by a legal claim even if those few targets enshrined in legislation (such as the soon to be defunct Renewable Energy Target) could not.
If the injunction is framed correctly, it would be done in a way that declares what a minimum target should be for the Australian Government to aim for, and a separate order compelling the Government not to fail in reaching that target. This would involve the minimum level of intervention in determining the policy arrangements and allows the Government the total freedom to work out how the target should be reached. It leaves to the Government the task of determining where the benefits and detriments of any given policy choice should lie while ensuring that the Government has meets a particular standard of care. This form of intervention was what was ordered in the Urgenda case and for Plaintiff S99, and is the most defensible approach under current legal approaches.
A legal claim would have an incredibly powerful normative value. It would make clear to the Government that they are not above the law, and they cannot fail to act with wilful disregard for current and future generations of Australians.
Choosing the right plaintiff will be essential. Based on the near-perfect certainty that the recent mass-bleachings of the Great Barrier Reef were caused by climate change, it would seem that a plaintiff who was a tourism operator in the region would be well-placed to prove a claim. However, it would be difficult for any one plaintiff to prove that they in particular would be affected. Would there be a claim with several co-plaintiffs dotted along the Reef have a greater likelihood of success? Only a Court could decide that. Due to the novelty of before-the-fact negligence claims, we have no analogue to compare this with.
Proving that the Government owes a duty of care in a case such as this will always be difficult, and this will also depend on the choice of plaintiff. There is an extensive process of legal analysis that is used when looking for whether a duty exists in a new type of legal claim. Using the standard tests (for lawyers, the ‘non-exhaustive universe of considerations’ in Caltex v Stavar (2009) 75 NSWLR 649), I think that there is a strong argument that one exists for tourism operators on the Great Barrier Reef for reasons that I can’t adequately describe here. But there has never been a claim that has aimed at such a high-level discretion as the setting of greenhouse gas emissions targets. Do the standard tests still apply? If it exists, it has certainly been breached. The choice of remedy as an injunction rather than damages will help with proving that the duty exists and that it has been breached.
As well, negligence has established principles for apportioning responsibility for harm after-the-fact. If several individuals are responsible for causing the harm, then they all are responsible for the damages bill and can sue and counter-sue among themselves to see that it is apportioned fairly. Do these same principles apply before-the-fact? Australia is only partly responsible for climate change, can it be compelled to take its share of responsibility for mitigation before-the-fact, or do a different set of principles apply? As above, this is for the Courts to decide.
For these reasons, and a few other points of greater or lesser importance, the success of such a claim is difficult to predict. The climate case against the Australian Government is still a difficult claim to make out in Australian law. Two of the bigger hurdles seem to have been eroded in recent times. As other legal minds begin to look seriously at the claim, it is possible that other hurdles will likewise begin to erode, further increasing the chances of success.
It is undoubtedly a high-risk, high-reward claim, though. The value of a court order forcing the Australian Government to up its ambition on climate change can’t be denied and may be enough to break the deadlock in Australia climate politics.
In terms of policies to mitigate our effect on the climate, the Australian Government has totally lost its way. It now seems determined not to find itself again. We shouldn’t need to use the threat of legal action to get the Australian Government to take care for our climate seriously.
But we are running out of options. And if that means we have to use the Courts to force the Government to base their policy and decisions-making on evidence rather than nonsense and political expediency then so be it.