The Federal Court of Australia has dismissed a landmark case brought by two Torres Strait community leaders. Uncle Pabai Pabai and Uncle Paul Kabai argued the Australian Government had a duty of care to protect the Torres Strait Islands from climate change, and that the government had breached that duty.
Justice Wigney of the Federal Court recognised the vulnerability of the Torres Strait Islands to the existential threat of climate change. But he found that the government’s responsibility in this context involves policy considerations – like the setting of emissions reduction targets – that courts are not entitled to review.
In the wake of this decision, it’s time for the Albanese Government to walk its talk on protecting people from the climate crisis by legally protecting the right to a healthy environment.
Australia now finds itself a global outlier. More than 85 percent of UN Member States, 164 out of 193, have laws that expressly recognise the right to a healthy environment and 19 out of 27 EU countries have enshrined environmental rights protections in their constitutions. Although Australia supported an historic July 2023 United Nations General Assembly resolution recognising a stand-alone human right to a healthy environment, the Albanese Government has not followed through domestically.
Multiple human rights bodies, including the Human Rights Committee, the Committee on the Rights of the Child, the Committee on the Elimination of All Forms of Discrimination against Women, and the Committee on Economic, Social and Cultural Rights, have recognised that a clean, healthy, and sustainable environment is essential for the full enjoyment of the human rights protected in core United Nations treaties. Australia is a party to these treaties and cannot continue to shirk its obligations toward current and future generations.
In a groundbreaking Australian first, in August 2024, the ACT explicitly enshrined the right to a healthy environment within its Human Rights Act 2004 (ACT). This nation-leading reform protects all Canberrans’ equal rights to a safe climate. It also secures their right to access environmental information, to meaningful and inclusive public involvement in environmental decision-making and access to justice.
This is the kind of leadership that the Albanese Government needs to show. In an era of escalating climate and biodiversity crisis, it is essential that Australian governments recognise and make decisions that protect our rights to a safe climate, clean air and environments free from pollution.
The Federal Court’s decision this week shows that Australians, even those most vulnerable to the devastating impacts of climate change, cannot litigate their way to survival.
Climate change and energy minister, Chris Bowen, and minister for Indigenous Australians, Malarndirri McCarthy, responded to the Federal Court decision, acknowledging that they “understand that the Torres Strait Islanders are vulnerable to climate change, and many are already feeling the impacts”. They said: “Where the former Government failed on climate change, the Albanese Government is delivering.” But we continue to see new fossil fuel projects approved and laws rushed through the parliament that undermine our right to a healthy environment and scientific oversight, blocking the public’s right to request reconsideration of environmentally damaging decisions.
It’s time for the Albanese Government to legally protect every Australians’ right to a clean, healthy and sustainable environment.
Recognising the right to a healthy environment in our domestic law would bring Australia in line with the global consensus that a sustainable environment is integral to the full enjoyment of almost every human right. It is crucial for First Nations peoples and to serve the best interests of young people and generations to come.
General Comment No. 26 from the UN Committee on the Rights of the Child holds governments and climate polluters around the world accountable for compromising the right of young people to a clean, healthy, and sustainable environment. In November 2023, Australian school students met in Newcastle and delivered a powerful statement to politicians and governments, calling for the protection of their right to a healthy environment. Yet young people continue to be denied a seat at the table when decisions are made that will irreversibly impact their future wellbeing.
Climate and environmental crises affect all Australians and their impacts can be addressed through a human rights framework. The Albanese Government can deliver groundbreaking reform by passing a national Human Rights Act that incorporates protection for the right to a healthy environment.
This reform will be especially meaningful for those most vulnerable to environmental degradation, including those First Nations communities that face the potential loss of Country, culture and community as the ocean inundates their Islands.
