Minister for the Environment v Sharma

Case [2022] FCAFC 35

FEDERAL COURT OF AUSTRALIA

Minister for the Environment v Sharma [2022] FCAFC 35

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today.  This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court.  The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website.  This summary is also available there.

The appeal concerns the orders made by the primary judge declaring that the Commonwealth Minister for the Environment owed a duty of care at common law when exercising her power under ss 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to consider and approve an extension of a coal mine in New South Wales.  The duty was expressed to require the Minister to take reasonable care to avoid causing personal injury or death to all people in Australia under 18 years of age at the time of the commencement of the proceeding arising from the emissions of carbon dioxide into the Earth’s atmosphere from the combustion of the coal to be mined in the extension of the mine.  In so finding such a duty of care the primary judge also found that human safety was an implied mandatory consideration in the making of the decision. 

The respondents to the appeal, the applicants below, did not seek to support the primary judge’s conclusion that human safety was a mandatory consideration in the making of the decision. 

As to the posited duty of care, the Full Court is unanimous in the view that the duty should not be imposed upon the Minister.  The three judgments of the Court have different emphases as to why this conclusion should be reached.  Before summarising the central reasoning of each member of the Court some comment is appropriate as to the hearing of the matter before the primary judge. 

A substantial body of evidence was led by the applicants about climate change and the dangers to the world and humanity, including to Australians, in the future from it.  None of the evidence was disputed.  There was no cross-examination of any witness brought by the applicants by those acting for the Minister, and there was no contrary or qualifying evidence led by the Minister. 

In a detailed and comprehensive judgment, the primary judge analysed the factual material closely and thoroughly.  The Minister submitted that some of the primary judge’s findings were incorrect and reached beyond the evidence.  The Court is unanimously of the view that these complaints are unfounded.  All of the findings of the primary judge were open to be made on the uncontested evidence before his Honour. 

The Chief Justice is of the view that the duty should not be imposed for a…

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Minister for Environment v Sharma [2022] FCAFC 35
Case
[2022] FCAFC 35
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CaseChat Overview and Summary

The case of Minister for the Environment v Sharma is an appeal concerning a novel duty of care, alleged to be owed by the Minister for the Environment to Australian children under the age of 18, in relation to the threat posed by global warming and climate change. The respondents, on behalf of the children, sought a declaration that the Minister owed them a duty of care when exercising statutory powers under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to approve or not approve the extension of a coal mine, to take reasonable care to avoid causing personal injury or death arising from emissions of carbon dioxide and subsequent global warming. The respondents also sought an implied mandatory consideration of human safety in the exercise of the statutory powers. The primary judge found in favour of the respondents on both claims, but the Minister appealed to the Full Court of the Federal Court of Australia.

The legal issues the court was required to decide were whether the Minister owed the children a duty of care when exercising the statutory powers, and if so, what the scope and content of that duty would be. The court also had to consider whether human safety was an implied mandatory consideration in the exercise of the statutory powers. In deciding these issues, the court had to undertake a salient features analysis, considering the nature of the relationship between the Minister and the children, the purpose and scope of the EPBC Act, the inter-governmental arrangements for environmental protection in Australia, and the coherence of a duty of care with the statutory powers.

The court found that the posited duty of care threw up for consideration at the point of breach matters that were core policy questions unsuitable for judicial determination, and that the posited duty was inconsistent and incoherent with the EPBC Act. The court also found that considerations of indeterminacy, lack of special vulnerability and of control, taken together with the context of the EPBC Act and the nature of the governmental policy considerations necessarily arising at the point of assessing breach, made the relationship inappropriate for the imposition of a duty. The court held that the primary judge's conclusion that human safety was an implied mandatory statutory consideration could not be derived from the EPBC Act. The appeal was therefore upheld, and the orders of the primary judge were set aside.

The orders of the court were that the appeal be allowed, that the parties seek to agree further orders necessary to give effect to the reasons for judgment, and that the parties file and serve brief written submissions annexing proposed short minutes of order dealing with costs and any further necessary or appropriate order. Final orders will then be determined on the papers and without a further oral hearing, unless a party objects to such a course in writing to the Chambers of the Chief Justice in which case the Court will consider the need for any further hearing.

Orders

Orders of the court

1. The appeal be allowed.

2. Before the Court makes orders setting aside orders 1 and 3 made by the primary judge on 8 July 2021 and dismissing the application, the parties should seek to agree further orders necessary to give effect to these reasons for judgment, including any appropriate orders concerning represented parties and as to costs.

3. Within 14 days, the parties file and serve brief written submissions annexing proposed short minutes of order dealing with costs and any further necessary or appropriate order.

4. Final orders will then be determined on the papers and without a further oral hearing, unless a party objects to such a course in writing to the Chambers of the Chief Justice in which case the Court will consider the need for any further hearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

As Gleeson CJ said in Cole 217 CLR at 472–473 [1]:The appellant, having suffered personal injuries, claims that the first respondent is liable to her in damages for negligence … In the circumstances of this case, it is of little assistance to consider issues of duty of care, breach, and damages, at a high level of abstraction, divorced from the concrete facts. In particular, to ask whether the respondent owed the appellant a duty of care does not advance the matter. Before she was injured, the appellant was for some hours on the respondent’s premises, and consumed food and drink supplied by the respondent. Of course the respondent owed her a duty of care. There is, however, an issue concerning the nature and extent of the duty. To address that issue, it is useful to begin by identifying the harm suffered by the appellant, for which the respondent is said to be liable, and the circumstances in which she came to suffer that harm ... As Brennan J said in Sutherland Shire Council v Heyman, ‘‘a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered’’. The kind of damage suffered is relevant to the existence and nature of the duty of care upon which reliance is placed. Furthermore, a description of the damage directs attention to the circumstances in which damage was suffered. ‘‘Physical injury’’, or ‘‘economic loss’’, may be an incomplete description of damage for the purpose of considering a duty of care, especially where, as in the present case, the connection between the acts or omissions of which a victim complains and the damage that she suffered is indirect. (emphasis added, footnotes omitted) The importance of the articulation of the nature and extent or scope and content of the posited duty (here, illuminated by [23] of the concise statement and by the declaration made) is that, if one posits the duty by reference to the asserted breach and the closely related evidence led to reveal the risk of harm, in order to decide the questions of the existence of the duty and of breach one is necessarily taken to consider all the evidence, material, policy and other considerations that attend the decision and that involve the question of the proper response to, including the adequacy of governmental policy in relation to, the risks of the emissions from the combustion of the coal mined as part of the worldwide risks of global warming and climate change. If one leaves the duty expressed at the high level of abstraction in [2] of the application or [22] of the concise statement one might well respond: Yes of course, but what are the circumstances? Possibly (though the Minister’s submissions contest the proposition) there could be a duty upon the Minister faced with the question of an approval of a mine of some description or of some other controlled action near a centre of urban population to exercise reasonable care for the health and safety of the nearby residents in exercising the power to approve or not approve the mine or controlled action, and if the former, on what conditions. Considerations and dangers in such a case might be so direct, so well understood, so immediately proximate, and attended by considerations in respect of which the court was entirely suited to adjudicate.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Before the time of the hearing of the appeal, but after the primary judge’s decision and orders, the Minister made a decision and granted approval. There was discussion at the hearing as to whether the Court should receive the decision and any reasons. This course was opposed by the respondents. The Court did not receive this material.The conclusion of the appeal in summary form For the reasons that follow the Minister’s appeal against the imposition of a duty of care in the terms articulated and against the conclusion that human safety was an implied mandatory statutory consideration should be upheld. The latter implication cannot be derived from the EPBC Act. The primary judge’s conclusions in this respect were not sought to be supported by the respondents. The imposition of the duty should be rejected. First, the posited duty throws up for consideration at the point of breach matters that are core policy questions unsuitable in their nature and character for judicial determination. Secondly, the posited duty is inconsistent and incoherent with the EPBC Act. Thirdly, considerations of indeterminacy, lack of special vulnerability and of control, taken together in the context of the EPBC Act and the nature of the governmental policy considerations necessarily arising at the point of assessing breach make the relationship inappropriate for the imposition of the duty. These conclusions reflect differences of view that I have with the evaluative judgments of the primary judge in a field of contention, the imposition of a duty of care in novel circumstances, that is not without difficulty. The primary judge considered and dealt with the arguments of the respondents and the Minister in a careful, thorough and clear body of reasons.The duty and its framing and its calling forth core policy-making and considerations unsuitable for resolution by the Judicial branch of government In their application at [2] and their concise statement at [22] the respondents sought to express the posited duty at a high level of abstraction: Whether the Minister owed the respondents and the children whom they represented a duty to exercise the power under ss 130 and 133 of the EPBC Act with reasonable care not to cause the respondents harm. The duty was said to arise out of positive action, not omission. Expressed at that high level of abstraction and divorced from concrete facts and referable to any decision under ss 130 and 133 it can be seen to be of little assistance. A postulated duty of care must be stated by reference to the kind of damage that a plaintiff will suffer: John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218 at 241–242 (Brennan J); Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 487 (Brennan J); Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 262–263 [13]–[16] (Gleeson CJ); Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 at 472–473 [1] (Gleeson CJ); see also Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at 345 [43]–[44] (Gummow J) and Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at 71 [47] (the Court).

Ratio Decidendi

Legal Principle Established

For the reasons that follow the Minister’s appeal against the imposition of a duty of care in the terms articulated and against the conclusion that human safety was an implied mandatory statutory consideration should be upheld. The latter implication cannot be derived from the EPBC Act. The primary judge’s conclusions in this respect were not sought to be supported by the respondents. The imposition of the duty should be rejected. First, the posited duty throws up for consideration at the point of breach matters that are core policy questions unsuitable in their nature and character for judicial determination. Secondly, the posited duty is inconsistent and incoherent with the EPBC Act. Thirdly, considerations of indeterminacy, lack of special vulnerability and of control, taken together in the context of the EPBC Act and the nature of the governmental policy considerations necessarily arising at the point of assessing breach make the relationship inappropriate for the imposition of the duty. These conclusions reflect differences of view that I have with the evaluative judgments of the primary judge in a field of contention, the imposition of a duty of care in novel circumstances, that is not without difficulty. The primary judge considered and dealt with the arguments of the respondents and the Minister in a careful, thorough and clear body of reasons.The duty and its framing and its calling forth core policy-making and considerations unsuitable for resolution by the Judicial branch of government In their application at [2] and their concise statement at [22] the respondents sought to express the posited duty at a high level of abstraction: Whether the Minister owed the respondents and the children whom they represented a duty to exercise the power under ss 130 and 133 of the EPBC Act with reasonable care not to cause the respondents harm. The duty was said to arise out of positive action, not omission. Expressed at that high level of abstraction and divorced from concrete facts and referable to any decision under ss 130 and 133 it can be seen to be of little assistance. A postulated duty of care must be stated by reference to the kind of damage that a plaintiff will suffer: John Pfeiffer Pty Ltd v Canny [1981] HCA 52; 148 CLR 218 at 241–242 (Brennan J); Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 487 (Brennan J); Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 262–263 [13]–[16] (Gleeson CJ); Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 at 472–473 [1] (Gleeson CJ); see also Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at 345 [43]–[44] (Gummow J) and Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at 71 [47] (the Court). The scope and content of the duty was illuminated by the expression of its anticipated breach in the concise statement at [23]: To exercise reasonable care not to cause the applicants harm by acting in a manner that materially contributes to increasing the minimum level at which carbon dioxide concentration can flatten. That expression of the matter, taken with the balance of the concise statement and the uncontested evidence presented, informs one that the duty concerns acting in connection with an approval of the extension of a coal mine in the light of the risks of global temperature warming and the consequent risks of harm to humans in the future caused by climate change, by not just the mining and transportation of the coal, but also by the emissions from the combustion of the coal mined from the extension of the mine.