The Australian Government needs to Clean Up Their Duty of Care Act (Full Essay)

29 Dec

The Australian Government has a duty of care to combat environmental issues in order to protect the future of humanity. Discuss.

Illustration by Megan Adrain — *Illustrated by Megan Adrain.*

The Australian Government has a duty of care to reduce national emissions and effectively combat environmental issues to protect the future of its citizens. A duty of care is an obligation to avoid acts that will foreseeably lead to the harm of another through infringement of their rights. Recent data exposed that each Australian emits 16.3 tonnes of CO2 annually, more than three times the international average. If the Government does not adequately address the climate emergency, natural disasters will occur more regularly, many species will become extinct, temperatures will heighten, and illness rates will grow. Australians have been protesting for years, demanding the Government take more ambitious actions regarding the climate crisis. The universal right to a clean and healthy environment was recently recognised by the United Nations General Assembly, helping “States to accelerate the implementation of their environmental and human rights obligations.” The Australian Government is composed of representatives of the people and is responsible for upholding the rights of Australian citizens; therefore, the Government has a duty of care to prevent environmental issues from damaging current and future living standards. Signatory to the Paris Agreement, Australia is taking minor steps to combat environmental issues; however, more can be done to address these matters, avoiding extensive harm to the population, such as adopting more Indigenous Land Management methods. The Australian Government needs to take further action on the climate crisis to protect its citizens' health and ensure a liveable world for future generations.

Protecting the future of Australian youth

The Government is responsible for protecting Australian youth and their future, ensuring a healthy and well-established environment is maintained. Almost one-quarter of Australia’s population is under eighteen and are not eligible to vote in elections, making them disempowered. Nevertheless, they must abide by laws and regulations imposing on Australia’s democratic process. Young people like Anj Sharma are finding different avenues to express their concerns about climate change and ensure their rights are being upheld. Sharma and several other young people filed for a putative class action against the Federal Minister for the Environment. Under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the Federal Court of Australia concluded that “the Minister has a duty to take reasonable care to avoid causing personal injury to the children when deciding…to approve or not approve the Extension Project,” on the grounds that mining coal would contribute to climate change causing harm to young people. However, this decision was overturned on appeal in the Full Court of the Federal Court for varying reasons, including that human safety is an implied consideration under the EPBC Act. Australia, the biggest emitter of CO2 per capita in the world, contributes significantly to the climate crisis, harming the livelihoods of many people and infringing on their rights. The implied consideration regarding human safety is not enough to ensure that the Government fulfils their responsibility and recognises the impact climate change will have on the health of younger generations. Without adequate action against climate change, the youth of today will have to face “life-threatening dangers” in the future. Young people have been creating platforms such as School Strike 4 Climate Australia and using their democratic right to protest. Despite these widely agreed upon opinions and the principle of representative government, there has not been sufficient recognition and change by the Australian legal system to protect people from the devastating effects of climate change. The Australian Government is failing to uphold their responsibility by not appropriately responding to the climate crisis, disrespecting the rights of Australians, and ultimately causing harm to its citizens. The Australian Government has a duty of care to protect and prevent Australian youths from being negatively affected by climate change now and in the future.

Paris Agreement and International Responsibilities

As a signatory to the Paris Agreement, the Australian Government has taken their first step toward decreasing the nation’s emissions and protecting the environment. The Paris Agreement aims to “strengthen the global response to the threat of climate change.” This is only an agreement and does not have any legal force in Australia unless domestic law is introduced, which they did. In 2022, the Government fulfilled their responsibilities and passed the Climate Change Act. This Act will assist in holding the Government accountable and ensure that they actively reduce emissions to protect the rights of Australians. Despite the 2015 report completed by the Climate Change Authority, an investigative committee, recommending a more ambitious reduction target of 30% below 2000 levels by 2025, the Australian Government’s proposed plan is for a 43% reduction target below 2005 levels by 2030. Many people, such as Green Member of Parliament Mehreen Farqui, know it is “not enough to deal with the crisis we are facing.” The Act utilises the existing market mechanism, the safeguard mechanism, as a primary strategy using taxes to prevent major industrial groups from increasing air pollution. Although the mechanism sounds good in theory this mechanism is a preventative measure rather than a reduction of emissions. It has been proven to fail in the past and will likely do so again, making damages to the environment foreseeable. Under international agreements, the Government is responsible for upholding Australians' rights by implementing domestic law to address the climate emergency. The Paris Agreement and the Climate Change Bill aim to combat the climate crisis to ensure that the right to life is protected; therefore, responsibility and implied duty of care lies upon the Australian Government to protect the environment and the future of all Australians.

As a member of the United Nations, Australia is a signatory to the widely recognised customary international law, the No Harm Rule, extending the Australian Government’s responsibilities and duty of care to combat climate change globally. The No Harm Rule, although without legal rectification in Australian domestic law, provides recognition that states around the world are “duty-bound to prevent, reduce and control the risk of environmental harm to other states.” As the world’s second-largest coal exporter, Australia has been damaging the environments of other countries for decades, breaching their responsibilities and pledge made to the United Nations, and infringing on the globally recognised human right to a healthy environment. There have been attempts by Australian citizens to prevent the Government from further contributing to climate change, aiming to protect the future and human rights. The Sharma v The Minister for the Environment case is a recent example of an attempt to hold the Australian Government accountable; however, it failed in the Australian legal system. Similar cases have been made in other countries, impacting their government’s response to the climate crisis, proving that change within the environmental legal sector is achievable. A Dutch environmental group, the Urgenda Foundation, successfully sued the Dutch Government, resulting in requiring the Government to do more to prevent climate change and uphold the right to a healthy and clean environment. In reaching this conclusion, the Hauge court cited Chapter 1: Fundamental Rights, Article 21 of The Constitution of the Kingdom of the Netherlands, which states, “It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.” The Netherlands Constitution is constantly under review to ensure that it provides for society's ever-evolving circumstances. The Commonwealth of Australia Constitution was founded in 1901, with only eight out of forty-four referendums being successful due to the restrictive dual criteria. Therefore, the Australian Constitution does not adequately reflect the current social climate nor provide concrete protection for various human rights. The Australian legal system is “set up to recognise that [duty of care]” the Government holds regarding caring for the environment, but it is a matter of implementing legislation that identifies and legally enforces agreements, such as the No Harm Rule. Under international law, the Australian Government carries responsibility and a duty of care to uphold the recognised human right to a stable and healthy future.

The Economy

While the Australian Government’s duty of care to combat climate change is of priority, the transition into a sustainable nation comes with the responsibility of ensuring the economy does not plunge into ruin. There is no doubt that making the shift to an environmentally conscious society will affect the economy, however, if undertaken with proper consideration and if there is a transitional period that utilises effective mechanisms to allow for a dynamic economy, it can be achieved with minimal damage. The Government must fulfil both responsibilities of ensuring economic growth while simultaneously addressing climate change. Achieving a ‘green economy’ requires the Government to have a new focus on the financial system, investment, and employment. Although addressing climate change will initially have a significant impact on blue-collar jobs opportunities will arise in new climate-friendly industries. In 2021, Australian federal, state and territory governments subsidised the fossil fuel industry with $11.6 billion. Instead of using the entirety of this money to power the fossil fuel industry, a portion of this supply should be redirected towards training workers in the mining industry in new climate-friendly jobs. Under the International Covenant on Economic, Social and Cultural Rights, Australians have a right to work. If the Australian Government were to fund such a program, they would respect the individual’s right to work while fulfilling their responsibilities of fostering a thriving economy and combating climate change.

The Australian Government could use the responsibility of combating the climate crisis as an opportunity to implement Indigenous Land Management (ILM) methods more broadly. Aboriginal and Torres Strait Islander peoples use land management activities that work with the environment. These methods allow Aboriginal and Torres Strait Islander communities to exercise and reclaim their rights as First Nations people. Standard techniques of ILM include traditional burning, sowing, and storing plants, creating sustainable systems. Over the past decade, Aboriginal and Torres Strait Islander peoples have become increasingly engaged in formal natural resource management. Government funding has supported First Nation Australians to undertake “significant and diverse projects across Australia.” The Fish River Fire Project in the Daly River region is the first savanna burning project approved under the Australian Government’s Carbon Farming Initiative. This project purposely burns savanna earlier in the dry season to reduce the “fuel load and the severity of late season fires.” In turn, it has reduced wildfires from 69% to 3%. Bushfires are heavily associated with health conditions such as asthma due to the high levels of CO2 emitted, causing harm to people and the environment. The Australian Government can fulfil their responsibility by working alongside Aboriginal and Torres Strait Islander communities to implement ILM techniques more broadly across Australia, creating employment opportunities while decreasing harm to the environment and the health of Australians caused by climate change.

Formally recognised by the United Nations, everyone has the right to a clean and healthy environment, therefore, the Australian Government has a duty of care to combat climate change and protect the future of humanity. Currently, Australia is a signatory to the Paris Agreement, the No Harm Rule, and acknowledges that access to a healthy environment is a human right. The Government is responsible for creating appropriate legislation that legally enforces and upholds these promises. The Climate Change Act offers hope that a sustainable future is achievable, however, the Government must endorse a more ambitious Act that will effectively combat climate change. The newly recognised right to a clean and healthy environment should be codified within the Australian Constitution to explicitly establish an individual’s rights and hold the Government accountable. The Australian Government must implement mechanisms to guarantee a transition period from fossil fuels to sustainable energy while maintaining an active economy. Becoming an environmentally conscious nation opens the opportunity for the Government to employ Aboriginal and Torres Strait Islander peoples and implement more ILM methods to help reduce the nation's emissions through their understanding of and connection to the country. The Australian Government is responsible for the well-being and health of all Australians, therefore, it has a duty of care to ensure that they effectively reduce the country’s emissions, resulting in a safer environment for future generations to thrive in.

If you are passionate about creating a more environmentally conscious society and want to help ensure the Government is doing enough to address the climate crisis, you can sign the petition now using the link below.

https://adutyofcare.davidpocock.com.au/

Reference List

https://www.abc.net.au/news/2019-11-08/fact-check-carbon-emissions-under-the-coalition/11662018

https://www.ag.gov.au/international-relations/international-law

https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-work-and-rights-work

https://www.aihw.gov.au/reports/australias-health/profile-of-australias-population

https://climateactnow.com.au/#:~:text=The%20Climate%20Act%20is%20a,on%20Monday%20November%209th%202020.

http://climatecasechart.com/non-us-case/urgenda-foundation-v-kingdom-of-the-netherlands/

https://lawhandbook.sa.gov.au/ch01s05.php#:~:text=A%20duty%20of%20care%20is,duty%20of%20care%20to%20exist.

https://www.dfat.gov.au/sites/default/files/climate-change-action-strategy.pdf

https://www.climatechangeauthority.gov.au/publications/2014-review-australian-emissions-trading-scheme-and-un-targets#:~:text=The%20Climate%20Change%20Authority%20recommends,below%202000%20levels%20by%202025.

https://ccpi.org/country/aus/