Chapter 1Introduction
1.1On 3 August 2023, the Senate referred the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (the bill) to the Environment and Communications Legislation Committee (the committee) for inquiry and report by 1 February 2024. After several extensions, the final reporting date for the inquiry was26 June 2024. The bill is a private senator’s bill introduced by Senator David Pocock.
1.2The bill seeks to amend the Climate Change Act 2022 (Climate Change Act) to impose two new statutory duties on government decision makers, such as the Commonwealth Minister for the Environment (Environment Minister):
(a)decision makers would be required to consider the health and wellbeing of current and future children when making certain decisions that are likely to contribute to climate change, including decisions that will increase scope 1, 2 or 3 emissions; and
(b)the prevention of a decision to approve the exploration or extraction of coal, oil or gas, where the resulting greenhouse gas emissions are likely to pose a material risk of harm to the health and wellbeing of current and future children.
1.3The purpose of the Climate Change Act is to set out Australia’s greenhouse gas emissions reduction targets, provide for the Commonwealth Minister for Climate Change to prepare an annual climate change statement, and confer expanded advisory functions regarding these targets and statements on the Climate Change Authority.
1.4Australia’s emissions reduction targets, as set out in the Climate Change Act are:
(a)reducing Australia’s net greenhouse gas emissions to 43 per cent below 2005 levels by 2030;
(b)reducing Australia’s net greenhouse gas emissions to zero by 2050.
1.5The legislated targets are also inserted into other Commonwealth statutes, including the legislation for the Clean Energy Finance Corporation, National Reconstruction Fund, Australian Renewable Energy Agency, Safeguard Mechanism, Clean Energy Regulator and Infrastructure Australia. This guides decision making of those schemes and bodies in accordance with the domestic emissions reduction commitments set by the Parliament.
1.6Under the legally-binding Paris Agreement, to which Australia is a party, Australia is required to set economy-wide emissions reduction targets through national climate action plans, known as nationally determined contributions (NDCs). The Paris Agreement aims to hold the increase in the global average temperature to well below 2°C above pre-industrial levels, and pursue efforts to limit temperature increase to 1.5°C. Australia submitted its first NDC in 2015, and an update in 2022 (as reflected in the Climate Change Act). Australia’s second NDC will be submitted in 2025.
1.7The Australian Government has a range of legislative and policy settings to reduce emissions and adapt to climate change, including, among other measures, the Powering Australia Plan, which includes Rewiring the Nation, Safeguard Mechanism reforms, the Powering the Regions Fund, the Capacity Investment Scheme, and the National Electric Vehicle Strategy. As part of the net zero transformation, the Australian Government has committed more than $40 billion ‘to make Australia a renewable energy superpower’.
Background to the bill
Sharma v Minister for the Environment
1.8In 2021, Miss Anjali Sharma and seven other minors filed a class action in the Federal Court of Australia, claiming that the Environment Minister owed them and other Australian children a duty of care, and sought an injunction against the Australian Government approving an extension of the Whitehaven Vickery coal mine.
1.9Miss Sharma and the other applicants claimed that the Environment Minister owes all Australian children a duty to exercise her power to approve an action under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) with reasonable care so as not to cause them harm.
1.10In February 2016, Whitehaven applied to the Environment Minister to expand and extend the Vickery Coal Project to extract up to 168million tonnes (Mt) coal (extended from 135 Mt), with additional infrastructure and a larger area of activity. Greenhouse gas emissions caused from the extension were estimated to be around 100 Mt of CO2.
1.11The applicants argued that a ‘duty of care is said to arise by reason of the existence of a legal relationship between the Minister and [Australian] Children recognised by the law of negligence’. The applicants argued that the Minister would fail to discharge a duty of care by approving the extension of the Whitehaven Vickery coal mine.
1.12As set out by the applicants, harm included ‘mental or physical injury, including ill-health or death, as well as economic and property loss’, which was alleged to be suffered by Australian children in the future after being exposed to climatic hazards induced by increasing global temperatures driven by the further greenhouse gas emission into the atmosphere. Climatic hazards included ‘more, longer and more intense bushfires, storm surges, coastal flooding, inland flooding, cyclones and other extreme weather events’.
1.13The applicants set out that today’s adults have ‘gained both previously unimaginable power to harm tomorrow’s adults, and the ability to control that harm’, and sought to impose a correlative responsibility, with the aid of the Court, to protect them from future harm.
1.14The then-Environment Minister did not dispute the threat of climate change to the environment, Australian community, and world, but denied the existence of a duty of care. The Minister contended that injury to Australian children was not reasonably foreseeable from the approval of the extension to the Vickery Coal Project.
1.15The Court recognised ‘the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to [Australian children] when deciding, under…the EPBC Act, to approve or not approve the Extension Project’. However, the Court declined to issue an injunction, finding that the applicants had not established that it is probable that the Minister would breach the duty of care in approving the extension.
1.16 In July 2021, the Court issued a declaration of the duty of care:
[The Minister] has a duty to take reasonable care, in the exercise of her powers under…the Environment Protection and Biodiversity Conservation Act 1999 (Cth)…to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.
1.17The Court declared that the duty applied to all Australian children because they and the applicants have the ‘same interest’.
1.18In September 2021, the then-Environment Minister granted approval for the proposed extension.
Overturning of ruling on appeal
1.19The then-Environment Minister, the Hon Sussan Ley MP, appealed the decision of Justice Bromberg to the Full Federal Court.
1.20In March 2022, the Full Federal Court of Australia unanimously overturned the primary decision to impose a duty of care on the minister, with separate reasonings. Chief Justice Allsop found that the duty requires consideration of questions of policy, and would be ‘unsuitable for the Judicial branch to resolve’. Justice Beach found that ‘closeness’ between the minister and Australian children was insufficient, but left open the possibility of a future claim if any of the children suffered harm. Justice Wheelahan found that the EPBC Act cannot establish a duty of care and that it was not foreseeable that the approval of the extension of the coal mine would cause personal injury to the children.
1.21The Full Federal Court found that, despite rejecting the primary judge’s findings, the risks of climate change were not disputed:
There are challenges to some of the primary judge’s findings (which should be rejected), but, by and large, the nature of the risks and the dangers from global warming, including the possible catastrophe that may engulf the world and humanity was not in dispute.
Health effects of climate change on children
1.22The effects of climate change on human health were identified by inquiry participants as both adverse and extreme, with risks to human health set to increase as climate change is felt in future.
1.23For example, the Australian Medical Association (AMA) stated that climate change is a ‘health emergency, with clear evidence indicating severe impacts for our people and communities now and into the future.’ The joint submission by the Climate Action Nurses and the Australian Primary Health Care Nurses Association called climate change ‘one of the most significant health crises of our time and, for future generations’.
1.24The World Health Organization (WHO) has described climate change as a fundamental threat to public health, affecting the physical environment as well as all aspects of natural and human systems. Climate change is also designated by the WHO as a threat multiplier, ‘undermining and potentially reversing decades of health progress’.
1.25The AMA set out a list of health impacts of climate change, which included:
food, water and vector-borne diseases – temperature, rainfall and humidity affect the mosquito populations, which leads to increases in Dengue and Japanese Encephalitis;
respiratory illness – smoke inhalation from bushfires, and increased risks from air pollution, are associated with deaths and hospitalisations;
nutrition-based illness due to food and water insecurity – droughts, fires and floods destroy crops, kill livestock and contaminate drinking water;
direct injuries from natural disasters – heatwaves can cause death, and drowning, injuries from debris and infections can cause death, as well as burns and deaths from bushfires;
mental health issues – direct effects include worsening mental health outcomes and increased risk of suicide due to heatwaves and increases in temperature; indirect effects include impacts due to loss of income, increases in conflict and violence, displacement and migration;
biodiversity loss – losses in biodiversity can risk the availability of food and water sources, new medicines and can see pests and diseases emerge;
social, economic and national security issues – including work insecurity, housing and homelessness, and impacts on vulnerable populations.
1.26The Royal Australian College of General Practitioners (RACGP) highlighted why children are so vulnerable to the effects of climate change:
They have less physiological reserves and less ability to control their environment. Fundamentally, they will also live more of their lives in a world that is more affected by climate change. Critically, their development is at stake.
1.27Representatives from Doctors for the Environment Australia (DEA) explained that infants and children eat, drink and breathe more per body weight than adults and so are more directly impacted by food quality and polluted air and water, all of which are impacted by climate change.
1.28In December 2023, the Australian Government announced the National Health and Climate Strategy, which recognises the urgent need to address the health risks associated with climate change. The strategy, discussed in Chapter2, outlines priorities over the next five years to address the health and wellbeing impacts of climate change.
Air quality and pollution
1.29The Australian Government’s National Health and Climate Strategy lists respiratory and cardiovascular conditions as being aggravated by climate change induced air pollution, including asthma, lung cancer and ischaemic heart disease. Air pollution can affect children and adolescents by lowering birth weight, reducing lung function, increasing risk of lung infections, and causing or worsening allergies.
1.30According to the Lung Foundation, children and adolescents are particularly vulnerable to air pollution, which can increase the risk of lower and upper respiratory infections and conditions, pneumonia, and middle ear infections. Short-term exposure to air pollution can exacerbate allergies, eczema and conjunctivitis, and can worsen pre-existing lung conditions.
1.31Asthma Australia linked asthma with fossil fuel extraction and power generation, as these activities increase emissions which increase the risk of developing asthma and triggering symptoms in people who already have asthma. Asthma Australia stated that children are ‘particularly vulnerable’ to the health effects of air pollution because they take in higher levels of it. This is due to their faster rates of breathing, higher level of physical activity, height and breathing through their mouths, and because they have developing organs and immune systems.
1.32The RACGP also discussed the effects of fossil fuels on air pollution. It noted research from the Harvard Medical School that ‘estimated that air pollution from fossil fuels in the form of particulate matter—that’s PM2.5 [2.5 microns or less in diameter]—could contribute to one in five deaths globally.’ This would mean 3 200 deaths annually in Australia. The RACGP called for the ‘immediacy of the health impacts of climate change at the centre of our considerations’.
Mental health impacts
1.33The RACGP stated that children can experience mental health problems following extreme weather events (as well as broader climate distress) due to their developmental vulnerability. For example, ‘[a]dolescents and young adults who were directly exposed to the Black Summer bushfires were found to have higher rates of depression, anxiety, stress, and substance abuse, as well as lower psychological resilience’.
1.34The Australian Association of Psychologists Inc. (AAPI) set out that the effects of climate change on young people’s mental health can be seen firstly through the risk of heightened anxiety caused by an awareness of the ‘environmental challenges they will inherit’, and secondly through the stress and trauma of being exposed to climate-related disasters.
1.35Climate change was noted to ‘amplify existing disparities’ in vulnerable communities and cohorts such as young people. According to the AAPI:
These disparities can manifest as economic hardships, displacement, food insecurity, and health issues. Young individuals facing these adversities are at a higher risk of developing depression and other mood disorders. Furthermore, the constant adaptation to climate-induced disruptions, such as frequent evacuations and unstable living conditions, can lead to chronic stress and maladaptive coping mechanisms, such as substance abuse, further impacting the mental well-being of young people.
1.36The Royal Australian and New Zealand College of Psychiatrists (RANZCP) referred to research by the Intergovernmental Panel on Climate Change and Lancet medical journal that ‘distress in climate change is not irrational’:
It's important for us to talk about the fact that this climate anxiety is real, and our young people, from current and future generations, are experiencing significant mental distress and disorders—including shock, trauma and post-traumatic stress disorder—as a direct result of climate change and climate events.
Health effects on First Nations children
1.37The health effects posed by climate change are also an issue of intergenerational equity, with some groups at greater risk than others. The National Native Title Council (NNTC), the peak body for Australia’s Native Title and other Traditional Owner organisations, supported the consideration of intergenerational equity in response to climate change, and called for matters such as health and life expectancy for First Nations people to be addressed.
1.38The NNTC highlighted the ‘fundamental connection between the wellbeing of our people and the health and vitality of our culture and our country’:
The impacts of climate change on the health of Country are manifold. They manifest in changed species range, biocultural landscape change, extinction rates, changed environmental management conditions such as fire and flood, coastal change and destruction of cultural sites. The physicality of these impacts in turn deleteriously affects Community and Culture.
1.39The impacts of climate change on First Nations children and young people were also highlighted by the Edith Cowan University Strategic Research Centre for People, Place and Planet:
In Australia, Aboriginal and Torres Strait Islander children and young people face an elevated vulnerability to the intersection of colonisation and climate change, with impacts on sense of place, identity, culture, land, and customs deeply rooted in kinship relationships with Country.
1.40According to the Australian National University Institute for Climate, Energy and Disaster Solutions (ANU ICEDS), the remoteness of some First Nations young people, coupled with socioeconomic factors, leads to disproportionate impacts of climate change on health.
1.41Rising sea levels impacting the Torres Strait were also raised as affecting the future liveability of islands for Torres Strait youth.
Conduct of the inquiry
1.42Details of the inquiry were advertised on the committee’s website, including a call for submissions by 20 October 2023. The submissions closing date was extended to 23 November 2023. The committee wrote directly to various stakeholders and invited written submissions.
1.43The committee received 403 submissions, which are listed at Appendix1 and are available on the committee’s website. A campaign email was received three times, and an example was published on the committee’s website as additional information to the inquiry. The committee held a public hearing on 22 February 2024 in Canberra. A list of witnesses who gave evidence at the hearing is available at Appendix 2.
Scrutiny of Bills and Human Rights committees examination
1.44The committee notes that the Senate Standing Committee for the Scrutiny of Bills and Parliamentary Joint Committee on Human Rights examined the bill and had no comments. The explanatory memorandum notes that the bill is compatible with human rights as it does not raise any human rights issues.
Structure of the report
1.45This chapter sets out the details of the inquiry; outlines the background of the bill; and summarises evidence received on the health effects of climate change on children.
1.46Chapter 2 sets out the key provisions of the bill, and views of inquiry participants. It also reviews existing Commonwealth legislation and policy settings to address climate change.
Acknowledgements
1.47The committee thanks the organisations and individuals who made submissions to this inquiry.