Governments face a reckoning in the courts over climate change failure

9th Jan 2020

The needless destruction of human life, animal life, shelter, schools, businesses and in some cases entire communities is unprecedented. Do not for a moment believe that Australia will remain the same after this summer inferno ends. And there must be a reckoning. It is time for those directly and indirectly impacted by this hell on Earth to hold the political class responsible for the wreckage that is this continent in 2020.

For well over a decade, politicians in Canberra and around each of the states and territories have been warned that catastrophic fires would become the order of the day courtesy of climate change. But despite this unambiguous expert opinion, climate change has been treated as a political game. And for the nutty right-wing commentariat, climate change is simply a leftist plot to destroy capitalism. This view has fed into the conservative political parties’ mindset on climate change for years.

One of the ways in which responsibility must be sheeted home to politicians is through the legal system. This is what has happened with the tobacco lobby and is now coming to pass with the opioid crisis in the United States. Individuals should be able to sue for the loss they and their families have and will suffer as a result of these horrendous bushfires.

To take the analogy further consider this. One of the reasons why litigants have been successful in taking on tobacco companies and now pharmaceutical firms is because they have been able to establish, often through whistleblowers, that those companies and industries knew that there was a link between their product and the harm caused to those who consumed them.

In 1987 work by the CSIRO’s Tom Beer and Graham Pearman forecast that climate change and more intense bushfires were linked. This paper was published in 1988 but forgotten about. But Dr Beer and Dr Pearman’s work was not an outlier. The link between climate change and increased bushfire activity is not a matter of controversy.

Sixteen years go an inquiry undertaken for COAG found that climate change will increase fire risk in Australia. A year later the Allen Consulting Group told the government of John Howard that the ‘incidence of bushfire is likely to be impacted by the temperature, humidity and precipitation changes brought about by climate change’. In 2005 CSIRO reported that frequency of very high and extreme fire danger days was likely to increase by up to 25 per cent by this year. As the Climate Council, an NGO that emerged after the Abbott government axed its predecessor, observes: 

‘… bushfire conditions are now more dangerous than in the past, and the risk to people and property has increased. For well over 20 years scientists have warned that climate change would increase the risk of extreme bushfires in Australia. This warning was accurate. Scientists expect extreme fire weather will continue to become more frequent and severe without substantial and rapid action to reduce greenhouse gas emissions’.

So successive governments have known for at least two decades that there is an unambiguous link between climate change and an increased risk to the lives of millions of Australians and the physical environment in which they live.

And yet little has been done to, first, combat climate change and, secondly, warn those Australians who are now facing the devastating consequences of this fire season about the risk. Instead the conservatives have mocked climate change science, have de-funded climate change initiatives, opposed a carbon tax and other emissions schemes and lied to global forums about climate change policies. There has been no levelling with the Australian community honestly about the need for urgent and dramatic changes to how we live.
It is only a matter of time before the courts are forced to step in and hold government accountable as they have done with Big Tobacco and Big Pharma. Corrs Chambers Westgarth, not a radical Left law firm by any means, warned in a note to clients  last year that a new wave of climate change litigation is emerging in Australia. The note warned: 

‘… communities most affected by climate change are likely to litigate to try to force action by government and the largest emitters, and to seek damages from those they think might be held responsible for contribution, inaction, and obfuscation’.

In 2018 the highest court in the Netherlands found that the government of that nation has a duty of care to combat climate change with policies consistent with international agreements because it represents a threat to life and the disruption of family life, given how real the threat of dangerous climate change is today and into the future.

The abject failure of the political class to protect the life and environment of millions of Australians now exposed to bushfires must be punished. And Australia’s courts and legal system is a place where government needs to be made accountable.

This article first appeared in the Mercury on 6 January 2020. It has been republished with the author’s permission.

Greg Barns is is a is a criminal justice spokesman for the Australian Lawyers Alliance and barrister, and is a former adviser to state and federal Liberal governments. He is author of Rise of the Right: The war on Australia’s liberal values.


The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Civil liability Greg Barns Environment Climate change Bushfires