William & Mary Environmental Law and Policy Review
Abstract
Only a fraction of cases in Australia ever appear in authorized law reports. Hundreds of significant court decisions are overlooked, amid growing concern in several common law jurisdictions that the courts at the highest level may be becoming increasingly aligned with the governments of the day. In tort law, the currents of change can take years and many decisions at various levels before taking hold as established law. In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment, a single judge of the Federal Court of Australia, Justice Mordecai Bromberg, held that the Federal Minister for the Environment, in determining whether to approve the extension of a coal mine, owed a duty of care to avoid causing harm to Australian children from carbon emissions. The Court did not grant the injunction sought by the children, and the Minister subsequently approved the extension. On appeal, the Full Court overturned the Federal Court’s decision. The focus of this Article is on the importance of Justice Bromberg’s decision, as the first case in Australia to recognize that a government official can owe a duty of care to avoid the risk of harm from the effects of climate change. It is a remarkable decision for this and other reasons, as this Article explains.