With Australian governments failing to adequately respond to the impacts of the climate crisis, citizens and communities have responded by taking their grievances to court. A surge in climate litigation over the past decade has included cases brought by shareholders, superannuants, children, Torres Strait Islander people, and doctors. These cases have been brought against governments and private actors, based on claims in corporate governance law, consumer law, negligence, and human rights. Each category of litigant has had peers abroad and forms part of a so-called global wave of climate litigation. Nonetheless, research identifies Australia as second only to the United States as a jurisdictional innovator of climate justice claims being made in the courtroom. What happens in Australia is closely observed from abroad.
Climate litigation has moved from a focus on general claims of justice, such as a duty of care to all future generations, to a focus on specific observed harms, such as the dangers of heat to elderly women and people with disability, the basis of one successful and one pending climate human rights claim in Europe.
One of the barriers to success of past climate cases in Australia, less experienced elsewhere around the world, has been the limited availability of human rights law and the narrow view held by Australian courts about the role of negligence law in holding governments responsible for deficient climate policy and programs.
In the high profile Sharma case brought by a group of young people against the Minister for the Environment, and the case of Pabai Pabai brought by a group of Torres Strait Islander people, the federal government was held not to owe duties of care (the first legal test for a successful negligence claim) to Australian children and First Peoples despite their acute climate vulnerability. This is because decisions about climate mitigation (reducing emissions) were held to be within the domain of the policy making discretion of our governments.
A further challenge in some climate cases has been that litigation has been directed at preventing future harms, which by their nature are more uncertain. But as the impacts of climate change are increasingly being felt, more and more cases will be grounded in material harms communities are now suffering.
The present move to bring a case against a government landlord is a novel response to such challenges, one that we have long foreshadowed in our research and teaching. In this new climate justice case, four public housing residents in the remote Aboriginal community of Papunya have filed a legal action against their landlord, the Northern Territory Government, for failing to provide housing that is safe to live in during extreme heat. Despite the regular extreme heat experienced in Papunya, heat that has become more frequent and intense due to climate change, public housing in the community lacks adequate insulation, shading, or air conditioning.
This case uses the law of contract as its legal foundation, arguing that the government is in breach of an implied term of habitability. It also focuses on adaptation (adjusting to current or expected climate change impacts to reduce harm) rather than mitigation, which tends to be easier to litigate as it side-steps the challenges of establishing a causal link between particular emissions and more diffuse climate harms.
The applicants in this case are represented by the Human Rights Law Centre, who note this case could pave the way for similar claims to be brought in other Australian jurisdictions to help to lift the thermal safety of public housing. They also note that a claim in negligence may have also been available, as government landlords do owe duties of care to their tenants, meaning the first test for negligence has already been passed. This removes the tripping point that recent litigants have experienced.
We agree, and further anticipate seeing related cases brought in circumstances where duties of care or contractual obligations have already been recognised, including against government agencies within the areas of utility provision, environmental protection, public transport, and forest management, especially to neighbouring communities.
In jurisdictions like the ACT, Victoria and Queensland, we also anticipate further similar actions based in human rights law. In 2024, for example, the ACT became the first Australian jurisdiction to recognise the right to a healthy environment. The right took effect on 17 March 2025, but it is not yet possible to take an action to the ACT Supreme Court due to a legislative bar on litigation. Nonetheless, an action based on the right to equality or negligence could reference the ACT Government’s new obligations. Furthermore, the ACT Legislative Assembly recently amended the Human Rights Act 2004 (ACT) to include the right to housing. When this right takes effect at the start of 2027, it could also create a strong basis for litigation.
A recent International Court of Justice Advisory Opinion on state obligations under international law for climate change, which found that states are under a legal duty to prevent serious harms to the climate system, is also likely to revive attempts to challenge Australian government approvals of emissions-intensive projects and to seek to hold corporate directors to their governance obligations under Australian corporations law.
As climate justice continues to activate communities, and with a need to both monitor, define and contribute to climate justice litigation and understandings, Monash University has created the Climate Justice Lab. Clinical programs and research groups across Australian universities are also examining the roles, purposes and possible pathways to impact, as it is clear that climate litigation is unlikely to ease. Indeed, it is far more likely that governments and corporate Australia are going to find themselves responding to many more challenging cases into the future.
