Is Rights-Based Climate Litigation Possible in Australia?

By Sam Bookman | 01 Mar 23
Protest sign reads System change not climate change

Law has emerged as one the key battlegrounds of the Climate Crisis. As the world heats up, so too have many courtrooms around the world as activists try to hold governments and companies to account for their greenhouse gas emissions (and regulatory omissions). And in these battles, human rights have come to the fore as a key weapon of choice employed by many litigants.

Several cases have captured the global legal imagination. In Urgenda v. The Netherlands, a Dutch NGO successfully argued that rights to life, privacy and the home protected under the European Convention on Human Rights (ECHR) required the Dutch government to take more ambitious action on climate change. In Leghari v. Federation of Pakistan, the High Court at Lahore similarly found that the government’s failure to implement a climate adaptation policy violated several constitutional rights, and ordered the creation of a Climate Change Commission. And in a recent decision, the German Federal Constitutional Court found that deferring climate action to future generations violated the fundamental freedoms protected by Germany’s constitution.

Deploying the law to force governments to act

These three cases represent just a small portion of a growing international trend: using human rights law to force governments to take more ambitious action on climate change. Activists in these cases demand action not just on particular projects or policies, but wholesale changes in their governments’ legal frameworks. Human rights – and the courts that enforce them – thus become a catalyst for change, with the effects of their decisions reverberating across parliaments and bureaucracies. The goal for the activists in these cases is to use catalytic litigation to force systemwide change across an entire economy.

These big, bold legal actions have rightly been celebrated. Decisions such as Urgenda and Leghari have inspired activists and lawyers across the world. The Urgenda plaintiffs have even set up its own Climate Litigation Network, tasked with seeding and assisting similar cases in other countries. Rights-based climate litigation has gone global.

In Australia, there’s a catch

But to what extent can this model of litigation be applied in Australia? There are significant limitations. Cases such as Urgenda and Leghari rely on a specific constitutional infrastructure. This infrastructure includes a national bill of rights or enforceable human rights treaty (such as the ECHR); courts with the legal power to enforce those rights against parliaments (even where parliaments have enacted contradictory legislation); and judges who are willing to do so. Countries such as the Netherlands, Pakistan and Germany tick all three boxes. Australia ticks none.

As the urgency of action mounts, accountability for government action will be inescapable, and the deference with which courts treat government policy action will likely erode. The question is whether governments will act before the Crisis becomes unbearable.

Australia’s federal constitution lacks a bill of rights, nor is Australia a signatory to any regional human rights treaty. While several Australian states have passed human rights statutes, none of these permit courts to strike down state legislation. In other words, if a state parliament passes a law that is inconsistent with human rights – including rights related to climate change – courts can only, at best, require that the legislature revisit that decision. And finally, Australian judicial culture tends to be more conservative than that of many other countries, meaning that they may be less likely to accept the ambitious kinds of human rights arguments advanced in other countries.

Human rights law still offers opportunity

These limitations make it unlikely that the international model of climate litigation could be directly imported into Australia. But it does not mean that human rights law offers nothing for Australian climate lawyers and activists. At the level of individual projects and permitting decisions, human rights clearly have much to offer. This became clear a couple of months ago when the Queensland Land Court drew on human rights arguments in recommending that the government refuse permission to develop a coal mine in the Galilee Coal Basin – a mine which would have destroyed a nature refuge, violated the rights of First Nation communities, and resulted in enormous quantities of greenhouse gas emissions. Altogether, the Court found that the mine would violate rights to property, privacy, home life, life, cultural rights, children’s rights, and equality rights, all protected by the recently-passed Queensland Human Rights Act. The Court rejected the developers’ argument that the link between the mine’s construction and the rights violations was too remote. Instead, the Court ruled that the downstream (or “Scope 3”) effects of digging up more coal in Australia – offshore combustion, greenhouse gas emissions, and global heating – were relevant to the human rights assessment.

The Queensland Land Court was careful to stress that human rights were only one part of its overall assessment, and that it ultimately was making a recommendation to other decision-makers – not having the final say. Although it originally announced it would appeal the decision, Waratah Coal, the mining company owned by Clive Palmer, has since confirmed it will not challenge the court’s findings. But the decision shows that human rights arguments will still be relevant to climate litigation, even without the constitutional rights infrastructure that exists in places like the Netherlands, Pakistan, and Germany.

The Waratah Coal case, however, differs from cases like Urgenda in an important respect. While the Urgenda case concerned climate action across the entire Dutch economy, the Waratah Coal case was restricted to a single mine. Challenges to specific mining projects have had some success in Australia, especially in New South Wales. But the “holy grail” of a landmark human rights decision which mandates economy-wide government action still seems a long way off.

Still, human rights – and especially the state-level rights charters enacted in ACT, Victoria, and Queensland – might yet have a role to play in this more ambitious type of litigation. In particular, rights might support arguments that these three state governments are not doing enough to address climate change. Human rights arguments could support challenges made under statewide climate or environmental statutes. By law, these statutes must be interpreted consistently with human rights obligations. As more and more courts around Australia and the world are recognizing climate change as a human rights issue, environmental obligations on state governments could be interpreted more stringently. Recognition of climate change as a human rights issue might also help persuade judges that they should more closely scrutinize government actions, meaning that courts would be less deferential in administrative law claims. And while courts cannot strike down legislation, they can issue declarations requiring these three parliaments to reconsider their laws, opening up opportunities for climate activists to make their case for better climate laws in the streets and in the media.

Climate lawyers are getting creative

And elsewhere, climate lawyers are getting creative. Although climate litigation suffered a major setback in Australia in the Sharma case, more litigation may soon be coming to a court near you. This includes cases involving specific projects, as well as more systematic litigation brought against Australia’s overall climate policy. These cases rely on a variety of legal tools beyond human rights, including tort law, international law, administrative law, and environmental planning law. Perhaps most ambitiously, two Torres Strait Island leaders are arguing that rising sea levels – which may one day render their homes uninhabitable – constitute a violation of the Australian government’s duty of care. The case follows a decision by the United Nations Human Rights Committee confirming that Australia has violated its international human rights obligations owed toward Torres Strait Islanders.

Australia, as one of the few countries in the world without a national bill of rights, has long been seen as an outlier in international human rights law. But as the Climate Crisis is increasingly viewed as a human rights crisis, human rights arguments will inevitably become more valuable in climate litigation. As the urgency of action mounts, accountability for government action will be inescapable, and the deference with which courts treat government policy action will likely erode. The question is whether governments will act before the Crisis becomes unbearable.