As we come out of the world’s hottest month on record and officially entering our global boiling era, a new legislative proposal is asking the federal government to think about the climate reality it is creating for future generations. ACT independent senator David Pocock has submitted the Climate Change Amendment (Duty of Care and Intergenerational Equity) Bill to parliament, which has been developed with 19-year-old climate activist Anjali Sharma. It’s one of the more creative approaches to climate legislation we’ve seen in federal government – something to be excited about, even if getting it passed will be a long shot!
It also prompts a bigger question about whether the federal government ever has a duty of care to its citizens, on any topic.
How would the Duty of Care Bill work?
The bill will apply two conditions to the government’s decision-making process for projects that fall under six major legislations (including the Environmental Protection and Biodiversity Conservation Act 1999, the Infrastructure Australia Act, the Northern Australia Infrastructure Facility Act). Basically, all the laws that cover fossil fuel project applications. The conditions are:
- “To consider the likely impact of decisions that could harm the climate on the health and wellbeing of current and future children as the paramount consideration.”
- “Not to make a decision that could harm the climate if the decision poses a material risk of harm to the health and wellbeing of current and future children in Australia.”
Essentially, by forcing the government to consider these two conditions, the Duty of Care Bill would increase rejections of new or extensions of fossil fuel projects. It also means if a climate-endangering endeavor is approved, we have actual legislation to fall back on and to fight back with.
It’s a creative approach because it puts a legislative focus on future generations – cutting off a common excuse that approving new coal and gas projects provides an immediate (usually economic) benefit. While the government knows exactly what future damage will be caused by these projects, there is currently no legislative framework to hold them accountable for causing that damage.
“It’s really important to have this statutory duty of care because it will be a legal mechanism to ensure decision-makers really have to consider the impact of climate harm when making significant decisions that could affect climate systems,” explains Sharma.
Is the Duty of Care Bill likely to pass?
So far the bill has only gone through its first reading. There are still six stages it needs to get through, where general principles and specific wording will be debated, dissected, probably amended and voted on by members of parliament.
Right now the Duty of Care bill is supported by other independents MPs including Zali Steggall (Warringah, NSW) and Allegra Spender (Wentworth, NSW). Spender said: “The government wants you to believe they’re doing enough and they’re absolutely not – this is the time for change.”
While they have not made a public statement, we think it is likely the Greens will show support for the bill, as it is in line with their climate policy stance.
But when it comes to Labor, Liberal and National parties… it’s unlikely there will be any support for Pocock’s proposal. Coal is Australia’s second most valuable export; we exported $112.8 billion in the last financial year. Coal supplied 57% of electricity to the National Electricity Market in the last financial year. Australia’s third most-valuable export is gas, with an estimated export revenue of $92.8 billion. These are important numbers to the Liberal-Labor battle for the crown of ‘Best Economic Managers’… but it also means the fossil fuel industry lobbyists are incredibly well-resourced to convince politicians to work in their best interest, going directly against what is in the best interest of the public.
However, Pocock is hopeful that instead of voting his proposal down straight away, parliament might choose to refer it to the Senate Standing Committee on Environment for further exploration. This would give it a fighting, but still slim, chance.
Does the government actually have a duty of care?
Whether or not it passes, the Duty of Care bill raises an interesting question about whether the federal government actually has a duty of care to us at all, and on what time frame. The bill itself builds on the 2020 class-action case, Sharma and Others v. Minister for Environment. Brought to federal court by a group of young Australians (including Anjali Sharma, then 16) and nun, Sister Brigid Arthur, the class action argued that as then-Minister for Environment, Liberal MP Sussan Ley had “a duty of care to Australian children… to avoid causing harm that would arise from emissions of carbon dioxide into the Earth’s atmosphere.” The lawsuit claimed she had ignored that duty of care when approving the expansion of a Whitehaven coal mine.
The initial ruling found Ley, did have a duty of care to protect children and young people from the effects of climate change; that children would be put at risk by the extension of the mind; and that, yes, “Australian children are vulnerable to a real risk of harm” from the climate crisis. Unfortunately, the Liberal government appealed the case and the ruling was overturned in 2021.
It’s strange to think that as an institution, the federal government would fight against the idea that it has a duty of care to protect Australia’s future as much as its present. The government is supposed to represent its citizens and protect its nation – a responsibility rooted in the very essence of public service. But when you think about it, any specific iteration of a government only has a short-term relationship with its constituents. Their duty of care to us is enforced by voting. If the public feels a government (down to the individual MPs) has not acted in their best interest, we vote them out. Future voters don’t have that power, so politicians are less inclined to think about them.
The result is that, no matter the party in charge, governments focus on short term policy they believe will produce close to immediate benefits, and ignore anything that will take too long to deliver rewards. For example, Labor legislated the 43% emissions reduction target only because it would get them immediate praise. After this, they went straight back to funding and approving new fossil fuel projects, like the Bowen Basin Mine, because these also deliver short-term economic benefit even while creating long term existential and economic devastation. It doesn’t matter to them, as the current MPs will not be the ones dealing with that devastation when the time comes.
Interestingly, there are some policy areas that the federal government seem to understand it has a future duty of care. Defence and national security gets strategic, long term planning (and is often one area where there is more bipartisan agreement). It is so committed to ensuring Australia’s national security in the future it will stand by decisions that are immediately unpopular with the public, like the AUKUS submarine deal. Even the huge public backlash cannot outweigh what the Liberal and Labor parties both believe are important diplomatic and defence benefits, some of which won’t come into effect for another 20 years.
Is there a societal expectation that the government has a long term duty of care to its citizens? Yes. Are they formally obligated to act in that way? No. Or at least, not yet…
New lawsuits, like Pabai Pabai v Commonwealth of Australia, are ways that citizens are trying to push for legal basis of duty of care. For what it’s worth, experts think the Torres Strait Island leaders will win their case. Pocock’s Duty of Care proposal could also provide the legislative basis for the government to structure its future duty of care and long-term thinking approach to climate. It would give us a commitment to the obligations, offers a legal framework for decision-making, and allows us to hold our representatives accountable for fulfilling their responsibilities effectively and transparently.
Smart people read more:
The ‘duty of care’ bill is a chance for the government to show it cares about young people – Women’s Agenda
An Analysis: What Labor’s Climate Change Bill Is, And What It Is Not
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