Dissenting Report from Senator David Pocock

Introduction

1.1In the midst of a climate crisis, there is no legislated duty of care to protect Australian children from the harms of climate change. Key decision makers are not even able to consider the impact of huge fossil fuel projects on the health and wellbeing of children and future generations—an astonishing omission, and one that endangers our children’s futures. This bill would put the health and wellbeing of children and future generations where it belongs, at the forefront of decisions on large emitting projects.

1.2There is overwhelming support for this bill to be passed. Of the 403 submissions published on the committee website, just one expressed outright opposition. A petition in favour of passing the bill has nearly 15,000 signatures. Parliamentarians, including government members, have openly expressed support for a duty of care on climate.

1.3It is shocking that the Labor party and the Coalition refuse to hear the cry for this bill to be passed. By turning their backs to the submissions and public support for a duty of care on climate change, the major parties again show Australians, and particularly young people, how out of touch they are. Our children know that they deserve better, and are calling for a future where their health and wellbeing is prioritised, where the impacts of climate change are mitigated, and where their voices are heard and valued.

1.4The need for a legislated duty of care is urgent. As the Royal Australian College of General Practitioners (RACGP) told the committee, ‘the health of a child born today will be defined by climate change’.[1] Doctors for the Environment Australia (DEA), an independent organisation of medical doctors across Australia, gave evidence that ‘children suffer 90 per cent of the burden of death and disability caused by climate change’ and ‘climate change is now the greatest threat to children’s health and wellbeing, and to future generations having a healthy and habitable planet’.[2]

1.5I introduced this bill because I believe young people deserve politicians and policymakers who act to protect the planet they will inherit. They deserve a legislated duty of care to children and future generations, who depend on us to make wise and compassionate decisions today. As one young Australian told the committee ‘our future lies in your hands, and your decision is crucial.’[3]

1.6I also believe that as an elected representative I have a duty of care to protect children and future generations. We are not making decisions like we’re here for a long time; we are not making decisions that will ensure future generations of Australians will enjoy the wonders of this extraordinary continent. The short-sighted decision making of politicians has landed us in a multitude of crises—climate, biodiversity, housing, cost-of-living—that highlight the urgent need to embrace and implement longer term thinking and decision making.

1.7Without a legislated duty of care, governments will remain myopically focussed on short-term political motivators, particularly the fear of upsetting vested interests. They will continue to make decisions that damage and destroy the planet we are handing to children and future generations.

1.8I thank every person who took the time to make a submission to the inquiry, including my colleagues from the House of Representatives Dr Monique Ryan MP, Dr Helen Haines MP, Ms Kate Chaney MP, Ms Allegra Spender MP and Ms Zali Steggall MP.

1.9I particularly thank the children and young people who made their first submission to a parliamentary inquiry, and wrote or drew pictures of what they want for their future in this country.

The fight for a duty of care

1.10 Young people realise the huge impact climate change will have on their lives, and they are courageously standing up to fight for a better future. In 2021, Anjali Sharma and seven other children (through a litigation agent) applied for a declaration that the Minister for the Environment owed Australian children a duty of care when using her powers under the approval provisions in the Environment Protection and Biodiversity Act 1999 (EPBC Act) to approve an extension to the Vickery coal mine.

1.11The trial judge who heard the case, Bromberg J, found that the Environment Minister owed all Australian children a duty of care to avoid causing personal injury or death from the emission of greenhouse gases when using their approval powers under Australia’s environmental protection legislation.[4]

1.12The then-Minister for the Environment, the Hon. Sussan Ley MP, appealed the finding to the Full Federal Court, which overturned the initial finding and found that the Australian Government does not owe a duty of care to protect young people from the climate crisis when assessing fossil fuel developments.[5]

1.13This decision was a crushing blow to the hopes of young Australians. It was one of many disheartening moments for young Australians who care about the climate they stand to inherit. Australia’s largest consultation of children and young people on climate and disaster risk found that, ‘in Australia, young people have consistently identified environmental and climate issues as top concerns yet only 13 per cent of young Australians feel their views are listened to by leaders in government’.[6]

1.14Young Australians, for example, wrote in submissions that the decision ‘identified that you, decision makers, do not have to consider the impact your decisions have on us children and future generations’, and told the committee about their shock at the blatant disregard for children’s welfare: ‘as discovered during the Sharma v Minister for the Environment case, the key decision makers in Australia do not need to consider their impact on future generations when making decisions. How is this fair?’[7]

1.15Following the judgement, former minister Ley, approved the Vickery coal mine,[8] and we have seen subsequent approvals of fossil fuel projects and extensions under the current Labor government. These approvals were given without a requirement for decision makers to consider the health and wellbeing of children and future generations. Without the passage of this bill, the rights and wishes of children and future generations will continue to be drowned out by lobbying from the fossil fuel industry.

1.16Anjali Sharma reiterated her fears for the future to the committee, and said that: ‘climate change is both one of the biggest threats to, and one of the biggest fears of, my generation. The consequences of this global crisis weigh heavily on our shoulders’.[9]

The urgent need for a statutory duty of care

1.17The consequences of climate change fall disproportionately on children and future generations. Governments and decision makers will continue to make decisions that damage the climate as long as they are able to ignore the impact of decisions on the health and wellbeing of children and future generations. Essie, a school student from Hobart, told the committee in plain terms that young people are going to bear the brunt of past decisions: ‘You cannot leave us to clean up your mess. This is your problem. Your generation’s problem. Not mine. Not the many to come.’[10]

1.18The ACT Commissioner for Sustainability and the Environment noted a number of surveys which showed that young people are worried about the continued extraction of fossil fuels, and stated that:

Enshrining a duty of care in legislation would provide our young people with substantive legal recourse to demand more from governments to better protect their futures against the impacts of climate change.[11]

1.19Zitong Ren, a young Australian who finished year 12 exams the day of writing to the inquiry, wrote to the committee about the need for fairness to the next generations:

After all, all I want, and what so many other Australians want is this thing called intergenerational equity. It is not fair that people in previous generations got to live in a habitable and healthy planet, the same people in recent decades who have contributed massively to climate change, to not allow future generations to live on a dead planet. Thus, it demonstrates how crucial a duty of care is, as it enables the government to actually consider the longevity of their actions.[12]

1.20Min Park, organiser and member of School Strike 4 Climate, stated that:

…young people, especially those my age, don't have a significant impact or a significant say in a lot of policy decision-making, we do still take notice of whatever the government do, whatever policies they make, and we do make remarks on it. We are very aware of climate change, and we're very aware of what the government is doing in this regard.[13]

1.21The reality of life for future generations was highlighted throughout submissions to the inquiry. Community Legal Centres Queensland stated that: ‘The fact that children will inherit a future not of their making, more brutal and harsher than anything our current adult generation has previously endured, is an intergenerational and distributive injustice’.[14] This was seen in evidence to the inquiry. For example, Luke Gelder told the committee:

I am a young person who is extremely worried about my future as climate change threatens every aspect of my day-to-day life in society from cost of living to transportation. The effects of climate change will worsen over the next decades to centuries but I have already felt the effects from increased heatwaves and stronger intensity bushfires…[15]

1.22Extreme weather caused by climate change has direct and profound effects on young people’s health including through increasing frequency and severity of bushfires, increasing flooding, and diseases spreading due to warmer weather. The RACGP noted that in the last ten years, there have been more than 9,000 hospitalisations in Australia ‘with direct evidence of extreme weather-related injury’.[16]

1.23Without a legislated duty of care on climate, children and young people face significant health challenges as they grow into adults. The RACGP set out that the ‘current carbon dioxide emissions trajectory is projected to increase heatwave-related deaths threefold in Melbourne and Brisbane and fivefold in Sydney over the period 2013 to 2080, compared with current heat-related mortality’.[17]

1.24Infants’ and children’s immune systems are not fully developed which increases the risk of infections, and they are exposed to heatwaves, smoke and contaminants due to time spent outdoors.[18] It is known that climate change impacts health through all stages of a child’s development, including:

during pregnancy—extreme heat and pollution have been associated with increased risk of pregnancy complications such as low birthweight, miscarriage and pre-term birth;[19] developing foetuses are highly sensitive to environmental toxins, as well as maternal stress and poor nutrition, when organs are developing, as well as the direct threat of extreme weather events such as fire, floods and bushfire smoke.[20] The risk of stillbirth was noted to be 46 per cent higher during heatwaves, compared to non-heatwave days, with increasing rates noted with increasing temperatures. The Royal Australian New Zealand College of Obstetricians and Gynaecologists stated that stillbirth is a medical tragedy, with profound and enduring effects on families;[21]

during infancy and childhood—extreme heat can lead to heatstroke, electrolyte imbalances, kidney-associated diseases, and increased asthma, and infants ‘face especially high risks’;[22] children are also especially vulnerable to diarrhoeal diseases which increase as temperatures rise and flooding increases.[23]

1.25The Australian Medical Association (AMA) acknowledged that ‘future generations are going to face the full consequences of a changing climate’, and highlighted that future generations would experience an increased frequency of disease outbreaks (zoonotic, vector-borne) and environmental catastrophes including drought, floods and bushfires. These disasters could impact food and water security as well as basic sanitation, with urban water supplies potentially affected by higher rates of evaporation due to higher temperatures.[24] Rising rates of respiratory illnesses due to air pollution and the inhalation of toxins will also be experienced by the coming generations, not to mention the direct injuries and deaths caused by fires, floods and heatwaves.[25]

1.26In addition, the Federation of Community Legal Centres submitted that ‘evidence suggests that higher daily temperatures are associated with an increased propensity for assault’.[26] The Australian Government’s National Health and Climate Strategy acknowledges this, saying that ‘there is evidence that domestic violence against women and children increases during and following climate-related disasters and extreme weather events.’[27]

1.27Heat exhaustion and heat stroke will increase as heatwaves become more frequent and last longer. The ARC Centre of Excellence for Climate Extremes set out that heatwaves ‘may be 85 per cent more frequent in Australia with global warming of 1.5-2°C’, and noted that global warming makes high heat extremes possible, with local temperatures increasing at ‘a significantly higher rate than the global average temperature increase rate’.[28] Children are particularly vulnerable to extreme heatwaves as they tend to spend more time outdoors, and are less able to regulate body temperature.[29] Heatwaves also prevent children from participating in physical activity, contributing to obesity, and decreases productivity in learning, which leads to poorer education outcomes.[30]

1.28Mental health issues will also be exacerbated with ongoing climate change. Extreme heat and humidity are directly associated with worsened mental health outcomes and increased risk of suicide.[31] Adolescents and young adults who were directly exposed to the Black Summer bushfires have ‘higher rates of depression, anxiety, stress and substance abuse, as well as lower psychological resilience’.[32] Headspace stated that the ‘impacts of natural disasters will be particularly acute for First Nations young people, given their unique connection to Country’.[33]

1.29The Royal Australian and New Zealand College of Psychiatrists was strongly supportive of the bill, and stated that ‘perceived apathy towards the climate crisis, and the impacts of the crisis themselves can adversely affect the mental health of children and adolescents.’ Further, the passage of the bill would show ‘tangible action by Government to address the impacts of the climate crisis on young Australians’.[34]

1.30The jobs, livelihoods and economic prospects of children and future generations are also threatened by climate change. In the time of an extreme weather event such as a heatwave or flood, labour capacity is decreased as working in extreme conditions can cause injury or death. Housing and homelessness, already a major issue facing the current generation of young Australians, will rise as people are displaced due to extreme weather events and rising sea levels.[35] The financial burden of all forms of flooding, set to become routine for future generations, was also raised.[36] Education is disrupted each year by natural disasters and heatwaves caused by climate change. The Australian Education Union NT said that continuity of education is disrupted as students are forced to leave their place of education. School facilities are also damaged by extreme weather events, putting a strain on resources and expanding inequality.[37]

1.31The Black Dog Institute, Australia’s only medical research institute investigating mental health across the lifespan, told the committee that ‘there is evidence of an emerging intergenerational divide, as young people report feeling frustrated, not listened to, and betrayed by older generations when talking with them about climate change’.[38]

1.32The World Health Organization (WHO) has found that, worldwide, ‘reducing environmental risks could prevent 1 in 4 child deaths’, with children particularly vulnerable to environmental risks including those relevant to climate change such as air pollution and inadequate water, sanitation and hygiene.[39]

1.33Young Australians who made submissions to the inquiry spoke clearly of the need to think about children and future generations when considering approvals of fossil fuel projects, and saw this bill as a necessary mechanism to safeguard their future:

You may say ‘we are just children’, but instead of us enjoying our childhood, you have forced us to grow up too quickly and start fighting for something we never thought we would be—our very own future. Rising global temperatures and extreme temperatures are affecting every single living organism on this planet—animals, plants and humans.[40]

I believe that it is your duty of care to ensure that my generation has the best possible chance of a safe and healthy future by putting an end to all this. By that, I mean what you do to this planet. All those fossil fuels you burn, all those coal mines you open, the factories you build...they all contribute to the ultimate end; Earth's demise, along with everything on it, or in other words, us. This won’t be you. It will be my generation, our children’s generation, and everyone’s generation to come. But not you.[41]

We were in the bushfires in Bermagui…It was scary not being able to see in the smoke and we weren’t allowed outside.[42]

Without such duty of care provision, today’s decisions, considering only today’s voters, aren’t necessarily made in a way to ensure both short-term AND long-term benefits. These sorts of decisions have resulted in a world we live in today.[43]

I am worried about my Island and the other Islands in the Torres Strait who are suffering from rising sea levels. I love my community and the beautiful Islands of paradise in the Torres Strait because this is where I learn a lot of traditional dancing and cultural traditions… I believe my Elders and community members wouldn't want to evacuate the Island because this Island has supplied them a lot… Without laws like this, I worry that there will be no one to be able to help me and my community to get better facilities to protect and save our Island.[44]

Save this planet before it’s too late, save lives. You, the government, can take that first step. Think before you open those factories and mines, think about what you are doing, not just how you will benefit.[45]

If this bill was to be passed through it could help with so many things. It would be amazing if our young voices were to be heard loudly and proudly. Our voices could help change the world and make outstanding changes for the future of earth’s nature and our next generation.[46]

This amendment is important because it would mean that all government decisions will need to consider future consequences, that is, the consequences WE have to deal with. It would mean our existence will finally influence your course of action, even before we reach voting age.[47]

1.34The inquiry heard from hundreds of Australians of all ages who expressed fear that the world being passed to younger and future generations is under threat. And that the voices raising this concern are being ignored. One submitter told the committee: ‘It grieves me beyond words to ponder the world we are leaving for the next generation. We are arguably the first generation of humans who have had the opportunity to consciously make decisions that will determine whether future life and civilization as we know it will continue to exist or cease to exist.’[48]

A gap in Australian climate policy

1.35 Recent developments in climate policy under the Labor government, such as the Climate Change Act 2022 (Climate Change Act) and the Safeguard Mechanism are bare minimum improvements to the complete inaction of previous Coalition governments. But both parties have chosen to ignore the need for a duty of care to protect children from the effects of climate change. Both parties continue to ignore the health and wellbeing of children and future generations when making decisions to fund and approve climate-wrecking projects. This is a huge gap in Australian climate policy, and one with dire consequences.

1.36No submitter or witness at the public hearing disputed the causal link between burning fossil fuels and climate change. The science showing the link is unequivocal. Australia is a huge producer of fossil fuels, most notably coal and gas, and must take responsibility for our significant contribution to emissions. We are the third largest exporter of fossil fuels,[49] the second largest exporter of LNG,[50] and the second largest exporter of coal.[51]

1.37Despite Australia’s huge contribution to global emissions, numerous legal experts provided evidence that Australian legislation is currently not equipped to address the impacts of climate change on children.[52] The Queensland University of Technology School of Law (QUT Law School) set out that ‘currently, Australia’s environmental protection legislation fails to protect future generations from the harms of climate change’, and that ‘the gap regarding the rights of children in the current legislation has led to harmful activities going ahead.’[53] Academics at the University of Western Australia stated that the bill, if passed, ‘would address gaps and delays in common law and existing legislation’, and that the tort of negligence ‘appears ill-suited to confront the existential threat posed by the cumulative effects of climate change’.[54]

1.38The NSW Council of Civil Liberties (NSWCCL) stated that it considered the bill would fill ‘an important gap in Australia's climate change framework which currently leaves the Commonwealth unable to properly manage the development of emissions intensive activities’.[55] The NSWCCL also noted that Australia, as a party to the UN Convention on the Rights of the Child (CRC), ‘has an obligation to take into account as a primary consideration the best interests of children in all administrative decisions’ and further stated that: ‘This requires the carrying out of vigorous children’s rights impact assessments’.[56]

1.39The Migration Youth and Children Platform called for the Australian Government to champion the inclusion of youth representatives in decision-making to promote intergenerational equity to ensure that the interests of both present and future generations are considered.[57]

1.40The South Australian Commissioner for Children and Young People supported the bill, identified the gap in climate policy and emphasised that the interests of future generations must be prioritised through legislation:

Without a legal requirement, we risk decision makers focussing purely on the priorities of adults and on reacting to the crises of today, rather than planning on how to manage the challenges of tomorrow. It is also what business and investors want to see as it provides them with certainty to make sound long term decisions and also grow their business practices in a sustainable way.[58]

1.41The concept of intergenerational equity is not new in Australian law. The concept already exists in the EPBC Act, and in theory should be considered as part of the ecologically sustainable development principles,[59] but this was said to have not acted as a ‘significant brake on project approvals’.[60] Some 740 fossil fuel projects have been approved since the EPBC Act came into force, and more than 550 of these did not have a full environmental assessment.[61] Under the Morrison Government alone, there were 17 approvals for coal mines,[62] six approvals for gas facilities[63] and $32.7 billion in fossil fuel subsidies.[64]

1.42Although the Labor government was elected on a platform of climate action, it is no different to the Coalition when it comes to approving and funding fossil fuel projects, particularly where they are export-oriented. Coal mines continue to be approved,[65] as do gas projects. Taxpayer money continues to subsidise fossil fuels. Rather than falling, subsidies have increased from $21.9 billion over the last 2 years of the Morrison government to $25.6 billion over the first 2 years of the Albanese Labor government.[66] The Middle Arm petrochemical hub is a particularly concerning example. The hub, if built, would unlock billions of tonnes of CO2 from the Beetaloo, Barossa and other gas basins, and has been provided $1.5 billion in taxpayer funds.

1.43This enormous allocation of public money for fossil fuel projects is set to continue. There are 30 proposals for new fossil fuel projects currently being assessed under the EPBC Act,[67] and more than 100 in the pipeline.[68] The Future Gas Strategy, released in May 2024, outlines plans to approve, and likely fund, more gas facilities and expand the gas industry out past 2050.[69] The decision to delay the replacement of the EPBC Act indefinitely and the outright refusal to include climate considerations in the Act is further evidence that the Labor government intends to carry on with business as usual and continue to approve and fund coal and gas projects.

1.44The Labor government, just like its Coalition predecessors, continues to ignore the impact of climate change on the health and wellbeing of children and future generations at key decision points.

1.45The bill seeks to address this by requiring the consideration of intergenerational equity when projects will cause significant emissions over their lifetime by inserting it as an object of the Climate Change Act. The QUT Law School stated that:

Despite the inclusion of intergenerational equity and ecologically sustainable development in environmental legislation [the EPBC Act], the interests of children and future generations have only rarely been given weight as a reason to refuse permission for a new or expanded fossil fuel development...for the most part, the principle has received little attention.[70]

1.46Separate from the EPBC Act, the principal policy for reducing emissions from large facilities is the Safeguard Mechanism. The mechanism places caps on Australia’s biggest mining, industrial and gas emitters, but is undermined by the use of questionable carbon credits and open to creative accounting. And the concept of intergenerational equity cannot be found anywhere in the Acts that give effect to the Safeguard Mechanism.

1.47Australia’s legislative framework, including the Safeguard Mechanism, is silent on reporting on and taking responsibility for the emissions generated by the fossil fuels we extract and export. These emissions, referred to as scope 3 emissions, are not currently reported under the National Greenhouse and Energy Reporting (NGER) Scheme, so cannot be accurately quantified. Despite this, we know scope 3 emissions represent the overwhelming majority of Australian emissions. Australia’s scope 3 emissions are, in broad terms, the emissions from exported coal and gas. Between 75 and 80 per cent of Australia’s gas production is exported and more than 90 per cent of thermal coal is exported.[71] Some guidance on the scale of scope 3 emissions can be gained from studies done in Australian jurisdictions. In the ACT, scope 3 emissions makeup 93.6 per cent of the jurisdiction’s total carbon footprint.[72]

1.48Dr Tony Worby, Chief Scientist at Minderoo Foundation, explained that Australia’s exported emissions make Australia a ‘major player globally when it comes to climate change and the emissions that ultimately go up into the atmosphere and drive climate change’:

The climate system doesn't care who burns the fossil fuels. The climate system just cares that they are burnt. Australia is a massive exporter of fossil fuels, and those fossil fuels are obviously contributing to climate change all around the world.[73]

1.49The failure to measure or consider scope 3 emissions is a huge gap in the Australian legislative framework. As stated in the United Nations Sustainable Development Goals, ‘Emissions anywhere affect people everywhere’.[74]

1.50Jurisdictions around the world are increasingly enforcing duties on decision makers to consider the impact of decisions that increase emissions on the health and wellbeing of citizens. Canadian legislation requires public sector decision makers to consider the principle of intergenerational equity in the development of sustainable development strategies.[75] Canada’s legislation promotes intergenerational equity by seeking to minimise ‘economic and social risks for future generations by driving down emissions’ and by taking action to minimise ‘current and future harm from climate change’.[76]

1.51The Well-being of Future Generations (Wales) Act 2015 (the Welsh Act) was highlighted throughout the inquiry as a good example of legislation focussed on the wellbeing of future generations. Welsh public bodies are required by the Welsh Act to consider long-term goals for sustainable development and wellbeing, including publishing an annual statement setting out how they are meeting their wellbeing objectives.[77] The ANU ICEDS highlighted the proactive nature of the Welsh Act, and the Future Generations Commissioner for Wales, whose role includes advisory, research, review, recommendation and reporting functions.[78] A bill inspired by the Welsh Act is currently before the UK Parliament, which would place a duty on public sector bodies to account ‘for the interest of future generations’.[79]

1.52And, in a landmark ruling earlier this year, the European Court of Human Rights ruled that countries have an obligation to protect their citizens from the consequences of climate change, siding with a group of Swiss women against the Swiss Government.[80]

1.53The proposed duty of care on climate change draws on the well-established rights framework that includes the right to a healthy environment. In many countries, there has been legislative recognition of the international right to a healthy environment, as set out by the Human Rights Law Centre (HRLC):

Currently, over 80 percent of UN member states (156 of 193) legally recognise the right to a healthy environment in national constitutions, national legislation and/or regional treaties, and 101 UN member states have incorporated the right to a clean, healthy, and sustainable environment into national legislation.[81]

1.54Australia has a chance to join our international counterparts on this important topic, and the bill is an opportunity to do just that. Indeed, forward-thinking jurisdictions here in Australia have already started to act. The Australian Capital Territory is considering legislating the right to a clean, healthy and sustainable environment in the ACT’s human rights framework. This right would include clean air and a safe climate, and would ensure that environmental and climate considerations are part of the development, implementation and interpretation of legislation.[82]

1.55The bill would align with Australia’s international obligations as a signatory of the CRC. Submitters were strongly supportive of this, and many also noted the UN General Comment No. 26 which focussed on children’s rights and climate changes.[83] A joint submission from academics and researchers at various Australian institutions stated that Australia ‘needs to demonstrate its good faith commitment to the human rights of its children and the children of the world’.[84]

A framework to deliver intergenerational equity

1.56This bill addresses the ongoing failure of key decision makers to consider the health and wellbeing of children and future generations by creating a legislated duty of care. The duty is twofold and provides a comprehensive framework that would deliver intergenerational equity on climate change under Australian law.

1.57As set out in paragraphs 2.1 to 2.3 of the majority report, the bill imposes two legislated duties on decision makers when considering whether to approve or fund significant greenhouse gas emitting projects. Where significant decisions are likely to directly or indirectly result in substantial greenhouse gas emissions, the decision maker:

must consider the likely impact of the emissions on the health and wellbeing of current and future Australian children and consider their health and wellbeing as the paramount consideration; and

in the case of decisions involving the exploration or extraction of coal, oil or gas, the decision maker is prevented from making decisions where the resulting greenhouse gas emissions are likely to pose a material risk of harm to the health and wellbeing of current and future Australian children.

1.58These duties are a practical way to promote intergenerational equity. The first duty, the duty to consider the health and wellbeing of children, is straightforward and addresses the absence of this basic consideration under current legislation. More than that, it ensures consideration of how key decisions on climate change will impact children and future generations as the paramount consideration, as it should be.

1.59The second duty, the duty not to make decisions that pose a material risk of harm to the health and wellbeing of children, is a targeted duty aimed at preventing the approval and funding of coal and gas facilities where they are likely to harm the health and wellbeing of children and future generations. The bulk of Australian emissions are the result of extracting and exporting coal and gas, although a substantial contribution comes from burning coal and gas domestically. As a result, these decisions require application of a further duty to prevent the most egregious damage to the health and wellbeing of children and future generations.

1.60Whether decision makers would be able to assess the health effects of climate change on children over time was questioned during the inquiry’s public hearing. The broad definition of health and wellbeing, and its ability to be interpreted by decision makers, was discussed by legal experts. The duty to consider the health and wellbeing of children will ‘require a shift in the mindset of decision makers to consider longer timeframes for the consequences of their decisions’.[85] But this is exactly the point. Concerns about difficulties in interpretation were put to legal experts and the response was unanimous: there would be no issues for decision makers in the interpretation of the duties.

1.61Professor Bridget Lewis, QUT School of Law, stated that the bill’s requirements are clear and ‘should not present difficulties for a decision maker’, and noted that the ‘long-standing principles of administrative law would apply to the new requirements and would provide guidance on the process a decision-maker should follow’.[86]

1.62Similarly, Professors Rosemary Lyster and Danielle Celermajer, University of Sydney, did not find that the bill’s requirements were particularly onerous for decision makers, and they could ‘foresee no difficulties whatsoever in administrative decision maker interpreting and applying the requirements set out in the bill.’ They noted that administrative decision makers ‘are required to make complex decisions under a wide range of Commonwealth Statutes every single day’.[87]

1.63Even when asked whether amendments to the bill are necessary to assist interpretation of the duties, legal experts reaffirmed that there are no issues. According to the HRLC, ‘administrative decision-makers are well equipped to interpret and apply the requirements set out in the bill’.[88]

1.64In recognition that measurement and application of key concepts are constantly being developed, the bill inserts a rule making power to allow the Minister to make rules. This enables the Minister to provide further and more detailed guidance on how decision makers should assess material risk of harm to the health and wellbeing of current and future children.[89] It allows the Minister to direct that frameworks that guide assessments of risk of harm to health and wellbeing be used and updated. The bill does not specify a particular framework in recognition that measuring the impact of high emissions projects on the health and wellbeing of children is an area of ongoing development.

1.65Professors Lyster and Celermajer told the committee that there is a ‘sizable’ amount of peer-reviewed literature on the health and wellbeing impacts of climate change, which would pose no difficulty in assessing impacts over time. The professors suggested that multiple, easily-accessible frameworks could be used by decision makers to assess the impacts on children over time.[90]

1.66As a starting point, the Department of Climate Change, Energy, the Environment and Water’s (DCCEEW) recently-released First Pass Assessment Report of the National Climate Risk Assessment, sets out mechanisms to understand risk and the impact of climate change on health. Climate risk components include an assessment of hazards, exposure and vulnerability, and climate risk can be defined as ‘a probability of the occurrence (or likelihood) of a hazard and the severity (or consequence) of its impact.[91] The First Pass report sets out practical time horizons centred around points in time (2020, 2050 and 2070, for example) for the consideration of risk, and that the assessment should consider the worst case scenario:

The very nature of risks means their impacts are uncertain but decision makers need to consider the most severe possible outcomes – a plausible worst case scenario. Such scenarios are integral for policy planning and decision making to mitigate and adapt to such risks.[92]

1.67The Department of Health and Aged Care’s (DHAC) Health impact assessment (HIA) Guidelines provide a framework for HIAs, which is ‘an internationally recognised process that provides a systematic approach to address the potential health costs and benefits of projects, plans or policies’.[93] HIAs are used by decision makers to assess the potential health costs and benefits of projects, plans and policies including for the mining and resources sector, and takes into account impacts on vulnerable and disadvantaged groups.[94]

1.68DEA noted that HIAs allow for consideration of changes due to climate change, including air, water and soil quality, but highlighted that HIAs are neither uniformly conducted nor always conducted by health professionals.[95]

1.69The bill seeks to ensure that decision makers consider the impacts of climate change when making their assessment, by asking them to consider not only physical and mental health, but also the emotional, cultural and spiritual health of future generations. The majority report highlights evidence from various submitters that mental health should be explicitly included in the non‑exhaustive definition of health and wellbeing. These calls should be reflected in an expanded definition in the bill.

1.70The bill would work to align the Climate Change Act and the EPBC Act by having intergenerational equity as part of the consideration and approvals process. There is currently a disconnect between Australia’s primary environmental and climate change laws, with no requirement under the EPBC Act to consider climate impacts when assessing whether to approve large‑emitting projects.[96] The HRLC explained that:

Amendments to the Safeguard Mechanism have established a hard cap on total emissions for Australia's biggest polluters collectively and a 'pollution trigger' requiring the Climate Change Minister to consider whether new projects will exceed that cap. But these rules are only triggered once a project has already been approved under the [EPBC Act].[97]

1.71As outlined above, the failure to consider scope 3 emissions is a significant gap in the Australian legislative framework. The bill addresses this by inserting what would be the first definition of scope 3 emissions, and requiring decision makers to consider the impact of all emissions, including scope 3 emissions.

Concluding comments

1.72 The committee heard overwhelming evidence about the need for, and support for the legislation of, a duty of care to young Australians and future generations. There is no concern raised in the majority report that cannot be addressed through amendments. The Labor Government has every chance to do the right thing by passing this bill, and restoring the faith in the democratic process that young Australians told the committee they had lost. The health and wellbeing of children and future generations should be more important to the Labor government than fear of the fossil fuel industry.

1.73As ecologist and philosopher Aldo Leopold reminded us almost a century ago, ‘The hope of the future lies…in creating a better understanding of the extent of [human] influence and a new ethic for its governance’.[98] It is time to lift our gaze beyond the short-term decision making that has led us to this point and enshrine a duty of care in legislation. This bill is a simple and practical way to do so. It has overwhelming support from public policy experts, academics, legal professionals and, most importantly, young people, and I call on the government to pass it into law without delay.

1.74The bill be passed as a matter of urgency.

1.75The definition of health and wellbeing in section 5 of the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 be expanded to include ‘mental wellbeing’.

Summary of Senator Pocock’s dissenting report for children

1.76 Right now, Australia is facing a big problem called climate change, which is making our planet hotter and causing more extreme weather like heatwaves and bushfires. Even though this affects everyone, there's no rule that makes the government think about how climate change will impact children when they approve big projects like coal mines. This new bill wants to change that and make sure children’s health and wellbeing are always considered in these decisions. Politicians, like me, have been asked to decide whether this bill should become the law.

1.77A lot of people want this bill to pass. Out of 403 letters sent to the Australian Parliament, only one disagreed. Almost 15,000 people signed a letter supporting the bill. However, politicians from the Labor party and the Coalition are not taking action. This makes many Australians, especially young people, feel like their voices don’t matter.

1.78Doctors and experts are warning that climate change is especially harmful to kids. They say that children are more likely to get sick and face serious health problems because of things like pollution and extreme weather. In 2021, a young person named Anjali Sharma and other children went to court to argue that the government should protect children from the dangers of climate change when making decisions. At first, the court agreed, but later, a higher court overturned this decision, which was very disappointing for many children.

1.79Children across Australia are speaking up and asking the government to consider their future. They want the government to think about how today’s decisions will affect their health and safety in the future.

1.80If the bill becomes a law, people who make big decisions about climate change will have to consider how new projects that might pollute the environment will impact children. They won’t be allowed to approve projects that could harm children’s health. This means they have to think about everything, including how heatwaves, fires, and dirty air might make kids sick.

1.81This is important because the choices we make now will shape the world for future generations. If we don’t start caring about how our actions harm the planet, children will suffer more with health issues, mental health problems, and even have trouble finding safe homes and clean water. I think that children born today, and in the future, should be able to live long, healthy lives and not worry about these things.

1.82Passing this bill and making it the law is a way to protect children now and in the future. It’s a simple and smart step to make sure the world stays a safe and healthy place for everyone. This bill has strong support from experts, the public, and especially young people, and I think it’s time for the government to listen and act.

Students from Footscray West Primary School, Submission 32, p. 2.

Students from Footscray West Primary School, Submission 32, p. 2.

Students from Fahan Junior School, Submission 46, p. 4.

Name withheld, Submission 345, p. 1.

Senator David Pocock

Participating Member

Footnotes

[1]Dr Catherine Pendrey, Climate and Environmental Medicine Specific Interest Group, Royal Australian College of General Practitioners (RACGP), Proof Committee Hansard, 22 February 2024, p. 1.

[2]Doctors for the Environment Australia (DEA), Submission 22, p. 2. Emphasis in original.

[3]Miss Alice Bergman, Submission 368, p. 1.

[4]Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560; Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774.

[5]Minister for the Environment v Sharma [2022] FCAFC 35.

[6]Australian National University Institute for Climate, Energy and Disaster Solutions (ANU ICEDS), Submission 11, p. 9.

[7]Aneeqa Mahmood, Submission 320, p. 1; Miss Alice Bergman, Submission 368, p. 1.

[8]The Hon Sussan Ley MP, Minister for the Environment, Statement of Reasons for Approval under the Environment Protection and Biodiversity Conservation Act 1999, 15 September 2021.

[9]Miss Anjali Sharma, Submission 3, p. 1.

[10]Miss Essie Burke, Submission 322, p. 1. Emphasis in original.

[11]ACT Office of the Commissioner for Sustainability and the Environment, Submission 16, p. 1.

[12]Mr Zitong Ren, Submission 201, pp. 1–2.

[13]Min Park, Organiser/Member, School Strike 4 Climate, Proof Committee Hansard, 22 February 2024, p. 23.

[14]Community Legal Centres Queensland, Submission 96, pp. 2–3.

[15]Mr Luke Gelder, Submission 312, p. 1.

[16]RACGP, Submission 37, p. 4.

[17]RACGP, Submission 37, p. 4.

[18]DEA, Submission 22, p. 2.

[19]RACGP, Submission 37, p. 6.

[20]Royal Australian New Zealand College of Obstetricians and Gynaecologists (RANZCOG), Submission 108, p. 4.

[21]RANZCOG, Submission 108, p. 3.

[22]RACGP, Submission 37, p. 6.

[23]RACGP, Submission 37, p. 6.

[24]Cairns and Far North Environment Centre, Submission 128, p. 3.

[25]Australian Medical Association (AMA), Submission 88, p. 2.

[26]Federation of Community Legal Centres, Submission 141, p. 16.

[27]Department of Health and Aged Care (DHAC), National Health and Climate Strategy, December 2023, p. 20.

[28]ARC Centre of Excellence for Climate Extremes, Submission 21, pp. 7–8.

[29]UNICEF Australia, Submission 112, p. 1.

[30]AMA, Submission 88, p. 2; DEA, Submission 3, p. 3.

[31]AMA, Submission 88, p. 2.

[32]RACGP, Submission 37, p. 6.

[33]Headspace, Submission 48, p. 2.

[34]Royal Australian and New Zealand College of Psychiatrists, Submission 118, p. 3.

[35]AMA, Submission 88, p. 2.

[36]Federation of Community Legal Centres, Submission 141, p. 16.

[37]Australian Education Union NT, Submission 147, p. 3.

[38]Black Dog Institute, Submission 98, p. 3.

[39]World Health Organization (WHO), Children’s environmental health.

[40]Aneeqa Mahmood, Submission 320, p. 1.

[41]Miss Essie Burke, Submission 322, p. 1.

[42]Evie and Bertie, Submission 323, p. 1.

[43]Name withheld, Submission 346, p. 1.

[44]Sinevah Mari, Submission 242, p. 1.

[45]Miss Essie Burke, Submission 322, p. 2.

[46]Adele Laganiere, Submission 325, p. 1.

[47]Name Withheld, Submission 346, p. 1.

[48]Name Withheld, Submission 341, p. 1.

[49]Australian Human Rights Institute, University of New South Wales, Australian Climate Accountability Project.

[50]Ruth Liao, ‘US becomes top LNG exporter, overtaking Australia and Qatar’, Australian Financial Review, 11 January 2024.

[51]International Energy Agency (IEA), Coal 2023, 2023.

[52]Queensland University of Technology School of Law (QUT Law School), Submission 18, p. 1.

[53]QUT Law School, Submission 18, pp. 8 and 7.

[54]Professor Alex Gardner, Associate Professor Fiona McGaughey, Associate Professor Marco Rizzi, University of Western Australia Law School, Submission 120, p. 3.

[55]NSW Council for Civil Liberties (NSWCCL), Submission 30, p. 3.

[56]NSWCCL, Submission 30, p. 3.

[57]Migration Youth and Children Platform, Submission 132, p. 5.

[58]SA Commissioner for Children and Young People, Submission 28, p. 1.

[59]EPBC Act, paras. 3A(c).

[60]HRLC, Submission 60, p. 5.

[61]HRLC, Submission 60, pp. 5–6.

[62]Department of Climate Change, Energy, the Environment and Water (DCCEEW),EPBC Act Public Portal.

[63]DCCEEW,EPBC Act Public Portal.

[64]See: OECD iLibrary, OECD Inventory of support measures for fossil fuels (2023), OECD iLibrary, OECD Inventory of Support Measures for Fossil Fuels: Australia.

[65]The Minister for the Environment and Water, the Hon. Tanya Plibersek MP, has approved four new coal mines or expansions, with an estimated 156 million tonnes of lifetime emissions. See: The Australia Institute, Coal mine tracker.

[66]The Australia Institute, Fossil fuel subsidies in Australia, pp. 1 and 10; The Australia Institute, Fossil fuel subsidies in Australia 2023, pp. 1, 11 and 13–15; The Australia Institute, Fossil Fuel subsidies in Australia 2024, pp. 1, 11 and 12.

[67]The Australia Institute, Coal mine tracker; Adam Morton, ‘Fossil fuel projects awaiting approval could blow Australia’s ‘carbon budget’ tenfold, climate groups say’, The Guardian, 1 December 2023.

[68]The Australia Institute, New fossil fuel projects in Australia 2023.

[69]Australian Government, Future Gas Strategy, May 2024, p. 4.

[70]QUT Law School, Submission 18, p. 7. The QUT Law School noted the decisions of Chief Justice Preston in Gloucester Resources and President Kingham in Waratah Coal as notable examples of courts applying intergenerational equity as a decisive consideration.

[71]Gavin Maguire, ‘Australia cleans up at home, but exported emissions keep growing’, Reuters, 19January 2024.

[72]Office of the Commissioner for Sustainability and the Environment, Scope 3 Greenhouse Gas Emissions in the ACT, September 2021, p. 8.

[73]Dr Anthony Worby, Chief Scientist, Minderoo Foundation, Proof Committee Hansard, 22 February 2024, p. 29.

[74]United Nations, Sustainable Development Goal 13: Climate Action.

[75]Federal Sustainable Development Act, S.C. 2008 (Canada), c. 33, s. 5b.

[76]Government of Canada, 2022-2026 Federal Sustainable Development Strategy, 2022, p. 20.

[77]Welsh Government, Well-being of Future Generations (Wales) Act 2015: Essentials Guide, p. 11.

[78]ANU ICEDS, Submission 11, p. 9.

[79]Chris Smith, House of Lords Library, Wellbeing of Future Generations Bill [HL], 16 June 2021.

[80]Molly Quell and Raf Casert, ‘Verdict saying Switzerland violated rights by failing on climate action could ripple across Europe’, AP News, 10 April 2024.

[81]Human Rights Law Centre (HRLC), Submission 60, p. 9.

[82]ACT Justice and Community Safety Directorate, Right to a healthy environment.

[83]See, for example: Uniting NSW.ACT, Submission 43, p. 6; Queensland University of Technology Law School, Submission 18, p. 6; NSWCCL, Submission 30, p. 4; Save the Children, Submission 58, p. 5; DEA, Submission 22, p. 2; Professor Judith Bessant AM and other academics and researchers, Submission 27, pp. 7–8; Community Legal Centres Queensland, Submission 96, p. 4; Public Health Association of Australia, Submission 84, p. 1.

[84]Professor Judith Bessant AM and other academics and researchers, Submission 27, p. 7.

[85]NSWCCL, Submission 30, p. 5.

[86]Professor Bridget Lewis, QUT School of Law, answers to written questions on notice from Senator D Pocock, 5 March (received 11 March 2024).

[87]Professors Lyster and Celermajer, answers to written questions on notice from Senator D Pocock, 5March 2024 (received 11 March 2024).

[88]HRLC, answers to written questions on notice from Senator D Pocock, 5 March 2024 (received 12March 2024).

[89]Proposed new section 18.

[90]Professors Lyster and Celermajer, answers to written questions on notice from Senator D Pocock, 5March 2024 (received 11 March 2024).

[91]DCCEEW, National Climate Risk Assessment – first pass assessment report, Canberra, March 2024, p. 4.

[92]DCCEEW, National Climate Risk Assessment – first pass assessment report, Canberra, March 2024, p. 4.

[93]DHAC, Health Impact Assessment Guidelines, 2017, p. 8.

[94]DEA, answers to questions on notice, 22 February 2024 (received 7 March 2024).

[95]DEA, answers to questions on notice, 22 February 2024 (received 7 March 2024).

[96]NSWCCL, Submission 30, p. 4.

[97]HRLC, Submission 60, p. 5.

[98]Aldo Leopold, Game Management, 1933.