While a Successful Climate Class Action is Unlikely, the Courts Have a Role to Play

Cries of indignation levelled at Scott Morrison grew, as the coal-adoring PM kicked back in Hawaii at the same time the entire eastern seaboard was going up in smoke. And calls for bringing a class action against the federal government over climate inaction reached crescendo.

This was a nation speaking out against a government that had long been assuring it that the threat of changing climate is a fallacy, which is a sentiment that was poignantly summed up as the then treasurer-now prime minister danced in the chamber with a lump of coal.

The Liberal Nationals government has fostered an atmosphere where those who’ve raised the issue of climate have been derided, while warnings about the specific bushfire catastrophe being experienced right now were ignored and the fossil fuel industry has been further greenlighted.

National Justice Project director George Newhouse recently outlined in an article in the Conversation that those calling for a climate change class action have been inspired by the successful Urgenda case, which was brought against the Netherlands government and required it to act on climate.

Being well-versed in running successful class actions against government, Newhouse also argued that as the laws underpinning the Dutch case don’t apply here, a similar action would likely be unsuccessful.

However, he does stress that the courts have a role to play in the current climate crisis.

No simple option for Australians

“An Urgenda-style class action in Australia” would be “a waste of time and resources in my opinion”, Newhouse told Sydney Criminal Lawyers.

The Macquarie University adjunct law professor explained that the Urgenda Foundation had sought orders to force the Dutch government to reduce the country’s greenhouse gas emissions by 25 percent from 1990s levels by the end of this year and the decision took seven years to finalise.

As far as Mr Newhouse is concerned, there’s no “magic bullet” like the Urgenda case available to lawyers, environmental groups or concerned citizens in this country. “For a start, the federal government isn’t even responsible for bushfires,” he explained. And he added that getting the government to change its climate policy through the courts is highly unlikely.

“The problem here is that we do not have the same laws as the Dutch and that means an Australian court could not make those orders,” the lawyer continued. The outcome in Urgenda hinged upon the European Convention on Human Rights (ECHR), which doesn’t apply in Australia and we have no legal equivalent.

“So, the fact that we don’t have the equivalent of the EHCR in Australia through a bill of rights is one of the main reasons that a successful Urgenda-style class action is unlikely to succeed here,” Newhouse said.

The Dutch class action

The Netherlands Supreme Court ordered on 20 December that the Rutte government take immediate action to curb the country’s greenhouse emissions. And it marked the first time a nation has been required by its courts to take action on climate.

In doing so, the court upheld two previous lower court decisions. In June 2015, the initial action saw the Dutch District Court rule that the government reduce emissions. And when this decision was challenged in 2018, the nation’s Court of Appeal upheld the first ruling.

The three levels of court found this to be the correct outcome based on the government’s obligation to uphold rights under the European Convention on Human Rights, which includes article 2 protecting the right to life.

The Supreme Court outlined that case law requires the taking of “suitable measures if a real and immediate risk to people’s lives or welfare exists and the state is aware of that risk”. And this extends to “environmental hazards that threaten large groups or the population”.

The court further reasoned that greenhouse gas emissions can lead to life threatening situations for the residents of the Netherlands via rising sea levels, deteriorating air quality, times of extreme heat or disruption to the availability of food and water.

No rights guarantees

The reason the Urgenda class action can be pulled off in the Netherlands is that rights under the ECHR can be enforced by citizens in the courts, as fundamental human rights are upheld under the convention and the Dutch government is obliged to follow those laws.

Australia is not a signatory to the European convention, and nor does it have similar national rights protections. Indeed, Australia is the only western democracy in the world that does not have some form of charter or bill of rights at the federal level.

So, while a few rights are protected under the Constitution, there are no provisions that enshrine the majority of human rights in law. And therefore, it’s difficult to claim the federal government is not upholding, say, the right to life, because if it doesn’t exist in law, there’s no obligation to.

Court action is still open

Newhouse stressed that doesn’t mean “all climate change litigation would be unsuccessful”. “There most definitely are legal measures that can be taken in addition to political action,” he said, and pointed to the Black Saturday bushfire class action, which resulted in a record payout.

The human rights lawyer further explained that there have been plenty of climate actions in the planning and environment courts. And he added that there’s room for Aboriginal groups to take action like holding extractive and fossil fuel industries to task, as well as the potential to hold company directors accountable.

Newhouse emphasised that courts in this country have been reluctant to pull the government up on policy issues. He said that while the courts will hold the government liable for directly causing a bushfire, they’re “unlikely to interfere” in policy and budgetary decisions.

“I’m not suggesting that the courts don’t have a role to play in ensuring that climate change is front and centre of our political and corporate agendas,” Mr Newhouse concluded. “I just don’t think there’s a silver bullet like the Urgenda Case and we are yet to see whether the Dutch government will comply with the orders.”