The Federal Court delivered its verdict this week in Pabai v Commonwealth of Australia – a landmark case that has drawn attention to limitations of the law of negligence to safeguard the most vulnerable from the impacts of climate change.
This outcome should serve as a wake-up call for the federal government to take stronger, more effective action to protect Torres Strait Islanders – and, indeed, all Australians – from climate change impacts. It also highlights the urgent need for legal development –through both the courts and parliament – to enhance our legal system’s ability to address the complex and pressing challenges of climate change.
Unfortunately, Uncles Pabai and Paul lost their Climate Change case today.
— Amnesty-NT (@NtAmnesty) July 15, 2025
Uncles had proven many factual elements of their case - Australia's emissions targets 2015 -2021 not consistent with "best available science" to hold global temps to 1.5 Celsiushttps://t.co/K508Ra8PJy
The case for duty of care
In 2021, Gudamalulgal First Nations’ leaders from the Torres Strait, Pabai Pabai and Guy Paul Kabai, brought a case in the Federal Court of Australia against the Australian federal government.
The applicants argued that the government has a legal responsibility, a duty of care under the common law of negligence, to ensure Torres Strait Islander Peoples are not harmed by climate change.
They argued that the federal government failed to take adequate steps to address climate change by reducing Australia’s greenhouse gas (GHG) emissions in accordance with the goals of the international climate change treaty, the Paris Agreement.
The outcome
The applicants’ claim was unsuccessful. Justice Michael Wigney noted that the facts underlying the applicant’s claim had merit – the Torres Strait Islanders have suffered, and will continue to suffer, from climate change impacts, such as sea level rise and extreme events, if greater action is not taken. However, he also found:
“… the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims.”
This outcome is unsurprising given Australian courts have been reluctant to find a duty of care to protect victims of climate change impacts in the past.
One of the key factors in the decision was the court’s reluctance to intrude on the role of the parliament and the executive government, in line with the “separation of powers” principle that underpins our democratic system.
The judgment underscored that the reasonableness of Commonwealth policy decisions is to be decided by democratic processes and not by the courts through a negligence claim.
We’ve seen similar reasoning by the courts before.
For example, in the Sharma case, first decided in May 2021, Justice Mordy Bromberg of the Federal Court found the Commonwealth environment minister owed a duty of care based in tort law to Australian children not to cause them harm from climate change, when deciding whether to approve the extension of Whitehaven’s Vickery coal mine under Australia’s primary environmental legislation, the Environment Protection and Biodiversity Conservation Act.
However, in March 2022, the full Federal Court overturned Justice Bromberg’s finding. The science and impending risk of climate change were not disputed by the court. However, Chief Justice James Allsop underscored that the appropriate site of decision-making in relation to climate change is the executive and parliament ,and not the judicial branch via tort law.
Chief Justice Allsop stated that climate change “can only be addressed by global coordinated policy and action”, and that it is the role of the “elected government to develop and implement wise policy in the interests of all Australians”.
Similar statements were made by Justice Shaun McElwaine in response to the “Living Wonders” litigation – an unsuccessful claim seeking judicial review of decisions in respect of two coal mines.
Together these cases highlight the limitations of our legal system to address the wicked problem of climate change. In the face of this, innovative thinking is needed, and quickly.
Possible appeal?
In reaching the finding that tort law in Australia does not provide an avenue through which the applicants were able to pursue their claim, Justice Wigney also noted:
“… [t]hat will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellate courts, or by the enactment of legislation.”
This suggests that in addition to the law reform avenues discussed below, the law can be developed by superior courts on appeal. Indeed, the applicants have indicated that they intend to continue to pursue their extraordinary leadership in this matter on behalf of their communities, and will discuss avenues for appeal with their legal team.
Other avenues – law reform
Justice Wigney found that the common law of negligence is not a suitable legal vehicle for holding governments to account for climate change policy unless the law in Australia changes. So, what avenues for law reform are there?
One avenue is the introduction of legislation to address the limitations of tort law and enshrine a duty of care to require decision-makers to consider the health and wellbeing of those vulnerable to climate change impacts in making decisions likely to contribute to climate change.
Such legislation was introduced as a private members’ bill by Senator David Pocock in 2023, but failed to receive broad support within the federal parliament.
Another avenue is the introduction of federal human rights legislation to underpin human rights-based climate change claims. Such claims, supported by international and state and territory-level human rights instruments, have been successful in the past.
In the Torres Strait Eight case, the international Human Rights Committee found that the Australian federal government had violated article 27 (the right to culture) and article 17 (the right to be free from arbitrary interference with privacy, family and home) of the International Convention on Civil and Political Rights due to their failure to address climate change.
In the Waratah Coal case, the then-president of the Queensland Land Court, Fleur Kingham, considered objections to a coal-mining lease, and recommended that the mine be refused due to violations of human rights enshrined in Queensland human rights legislation. This recommendation was followed by the Queensland government.
In November, our clients @YouthVerdict + @BimbleboxNR won an historic case against Clive Palmer’s Galilee Coal Project.
— Environmental Defenders Office (@EDOLawyers) February 13, 2023
Waratah Coal then lodged a Supreme Court challenge to the decision.
Now Waratah Coal has withdrawn its appeal.
Our client’s historic win stands, uncontested! pic.twitter.com/uJNYB8EeGJ
The Pabai case could have been argued on human rights grounds if Australia had implemented international human rights treaties at the federal level. A federal human rights act is urgently required to ensure that the most vulnerable are protected from climate change impacts.
What are the implications of the Pabai case for Australia’s greenhouse gases emissions reduction targets and ongoing fossil fuel use?
In late 2022, the federal government legislated an economy-wide target to reduce GHG emissions by 43% below 2005 levels by 2030, with a commitment to reach net zero by 2050.
In Pabai, Justice Wigney found that Australia's earlier targets – set in 2016, 2020, and 2021 – were not based on the best available science, whereas the 2022 target demonstrates a stronger scientific foundation.
This recent effort to better align Australia’s climate targets with best available science was one factor underpinning the judge’s decision that the government had not failed to adopt mitigation measures to reduce GHG emissions.
However, the adequacy of Australia’s climate targets is widely disputed. Independent analyses of developed countries’ contributions to the goals of the Paris Agreement, including Australia’s targets, indicate a consistent failure to deliver what could be considered a “fair share” of the global effort.
For example, in 2021, an independent Climate Targets Panel argued that to do its fair share in limiting global warming to below 1.5°C this century, Australia must cut emissions by 75% below 2005 levels by 2030.
More recently, expert evidence provided by climate science expert Professor Malte Meinshausen in the Pabai case suggests that Australia’s 2022 target is not consistent with a fair share of the global emissions budget. This is even more the case when emissions associated with Australia’s fossil fuel exports are factored in.
According to new research, Australia is the second-largest climate polluter when calculated by total carbon emissions from its fossil fuel exports.
Australia is due to submit its next round of climate targets for 2035 under the Paris Agreement this year, prior to COP30 in Brazil later this year. The Pabai case reminds us of what is at stake if we fail to put forward and deliver on ambitious targets – and if we fail to take serious steps to curb fossil fuel extraction and use.
