A UNSW climate litigation expert says yesterday's Federal Court decision – which held that the Commonwealth Government currently has no legal duty to protect Torres Strait Islanders from climate change – is disappointing, but will not stop the push for climate justice.
"While the decision is a major setback, it is unlikely to stem the tide of climate litigation that is calling for greater accountability for climate change – especially for those most vulnerable to its impacts," says Dr Riona Moodley, an Australian lawyer and climate litigation researcher at the UNSW Institute for Climate Risk & Response (ICRR).
"While the Court did not find that the Commonwealth owed a duty of care in negligence in this instance, it left open the possibility that an Appellate Court could revisit this position. Around the world, courts and international human rights bodies are increasingly holding governments and corporations accountable for climate inaction."
In 2022, the United Nations Human Rights Committee found that Australia had violated the rights of Torres Strait Islanders by failing to adequately respond to climate threats.
"With the International Court of Justice set to release an advisory opinion on State obligations with respect to climate change later this month, the legal landscape is shifting rapidly," says Dr Moodley.
She also points to a broader international legal trend: "It is important to note that courts in other jurisdictions, such as the Netherlands, have recognised analogous duties on the part of States to address the foreseeable harms of climate change. It is possible for our law to do the same."
"Today might not be that day, but Australian law will need to adapt to meet the challenges of climate change. This must include providing a pathway for access to justice for those most vulnerable to its impacts."
In addition, Dr Wesley Morgan, an ICRR expert in international relations in the Pacific Islands, says: "this ruling is also about climate credibility."
"The Court found that Australia had failed to genuinely consider the best available science when setting past emissions targets," says Dr Morgan.
"As the Government now weighs its 2035 target, it must ensure that science guides its decision. How Australia responds will send a powerful signal to our Pacific neighbours about our commitment to climate justice and regional leadership."
