Dr Noam Peleg
The plight of a group of climate campaigning teens doing battle with a federal minister over the expansion of a coalmine made international headlines last week with a Federal Court ruling on their landmark class action.
The case of Sharma v Minister for Environment involved eight teenagers and an 86-year-old Brigidine nun, acting as their litigation representative (due to their lack of independent standing). They asked the Federal Court of Australia for an injunction to prevent the Federal Environment Minister approving a proposal by mining company Whitehaven Coal to expand the Vickery coalmine in northern New South Wales.
The teenagers’ core argument was that the Minister has a common law duty of care to protect younger people against future harm that climate change causes, and therefore the mining expansion should be halted.
Given that Australia lacks any meaningful domestic human rights mechanism, the case was framed in terms of negligence law, resulting in discussion about the relationship between the government and children, that was removed from any substantial engagement with children’s rights.
The Court heard ample scientific evidence that highlighted how adults’ actions, or lack of them, lead to significant changes in the climate. The judgment describes the physical, mental and psychological dystopian future that human beings in Australia can expect to experience by the end of the 21st century, and how life will look like if temperatures rise by two, three or four degrees, including the increased risk of bush fires, floods across the eastern shore and disappearance of certain species.
The children’s argument was that the Minister has a duty to act today in order to reduce the likelihood that the children and adults of tomorrow will experience this catastrophic reality. A similar claim is pending before the UN Committee on the Rights of the Child, where a group of 16 children, including Greta Thunberg, claim in their communication from September 2019 that a number of states around the world have failed to combat climate change, and therefore have violated their duties under the Convention to protect the rights of children.
The Minister for Environment did not dispute that climate change presents serious threats, but denied the existence of a duty of care that they may be under, and therefore that has been breached or that the remedies that the children sought were justified.
The Court, after grappling with decades of tort law precedents, establishes that the Minister has a common law duty of care to children, but did not take the next step to make it operational, and did not issue any of the orders that the children sought.
Within the confinements of tort law, the court rules that children’s ‘vulnerability is clear’, and it is affected by the (lack of) action on climate change by the Minister. But the Court also assumed, based on the notorious Teoh decision that belittled the principle of the best interests of the child to be a procedural requirement, that the Minister had children’s best interests at heart when they made decisions about the environment.
Assuming that the Minister considers children’s best interests, the Court once again ignored two other dimensions of Article 3 of the Convention on the Rights of the Child, that upholds the principle of the best interests of the child: The best interests principle as a substantive right of children and a fundamental, interpretative legal principle (per the UN Committee on the Rights of the Child). As such, the Court should have asked, at the minimum, to see the best interests analysis that had to be a primary consideration for the Minister’s decision. Instead, the Court did not perform a best interests analysis of the Minister’s decision, nor ordered the minister to perform a substantial, evidence-based one, as part of its decision making process. This is a clear contradiction of Article 3 of the Convention on the Rights of the Child.
Australia has signed and ratified the Convention in 1990, and therefore made a voluntarily commitment to respect the rights of children.
The Court substantiated its decision by suggesting that the Minister’s duty of care is founded upon the capacity of the government to protect and upon the ‘special vulnerability of children’ (311), and their innocence (322). From a child’s rights perspective, this is a problematic and anachronistic conception of childhood and children. It subjugates children’s legal positionality to paternalistic government care and denies them their agency, portraying children as eternal victims that should be salvaged by the state.
A children’s rights doctrine rejects this conception and instead establishes that States’ duty of care derives from their duty to respect children’s human dignity and human rights. Respecting rights of children is not a matter of charity or adults’ good will, but rather their duty under Articles 4, 5 and 18 of the UN Convention on the Rights of the Child.
The children’s demands that the Minister for Environment will act today to protect their own living conditions as future adults – and the living condition of children of the next generation – raises some interesting questions in terms of children’s rights, and childhood studies more broadly. Traditionally, children have been conceptualised as ‘human becomings’, or as adults in the making, and the legal regulation of their life, including of their human rights, was geared toward ensuring this amorphic future while overlooking their life at the present, and ignoring their agency and their voices.
The new sociology of childhood in the 1980s introduced the conception of children as ‘human beings’, suggesting that childhood, as a stage in one’s life, should not be seen as a mean to an end and that children should be seen and heard. In terms of children’s rights, this shift is represented in recognising children as active agents, and in respecting their right to participate in decisions concerning their life too (Article 12 UNCRC). This case sees these two dimensions intertwined into a generational justice argument that warrant action now.
The children’s demand to establish the Minister’s duty of care can be described as a call to respect the right to development of children. A right that encapsulates the two dimensions of childhood and vindicates respecting children’s rights at the present as an important element in and of itself, and simultaneously in order to guarantee their future. The Court’s reluctance to use children’s rights terminology and obligations is a missed opportunity to substantiate their rights and provide children with the remedies that they have asked for, in order to secure their own future and the present of future children.
In terms of domestic law, this case is certainly a big step forward, despite the Court’s reluctant to provide concrete remedies. The recognition of the common law duty of care should not be ignored or dismissed, and it can be utilised in future litigation to demand and enforce concrete steps. But it’s another blow to domestic children’s rights law.
Dr Noam Peleg is a Senior Lecturer at the Faculty of Law and Justice. Noam's work focuses on international children’s rights law and its intersection with human rights law, childhood studies, and family law.