The commonwealth environmental protection act isn't primarily concerned with the interests of humans or the environment in general, the full bench of the Federal Court has heard.
Environment Minister Sussan Ley is appealing a Federal Court declaration that she has a duty of care to protect children from future personal injury caused by climate change.
At the outset of the three-day appeal hearing, Solicitor-General Stephen Donaghue QC argued the Environment Protection and Biodiversity Conservation Act is not predominantly about the interests of humans or the environment generally.
The EPBC Act is really only concerned with environmental issues that enliven commonwealth powers, he argued, and should not be co-opted to serve the “collateral purpose” of establishing a duty of care.
Eight children took action against Ms Ley in 2020, challenging an expansion to the Vickery coal mine project in NSW.
Justice Mordecai Bromberg ruled that Ms Ley owed a duty to all Australian children when exercising her legislative decision-making powers regarding the mine.
One of the children who brought the case, 17-year-old Anjali Sharma, said on Monday the federal government continues to deflect responsibility for worsening climate change risks.
“We will proudly defend the historic ruling that all Australian children are owed a 'duty of care' by our government, and fight to protect my generation from the increasing risks of climate change,” she said in a statement.
The Vickery project was approved previously by NSW's Independent Planning Commission and would result in 100 million additional tonnes of carbon emissions.
But Mr Donaghue said the issue of greenhouse gas emissions was not relevant to the EPBC Act, noting the mine did not require approval under the act when it first opened.
He also said the duty of care established by Justice Bromberg's ruling did not give sufficient weight to constitutional issues and was based on an incorrect conclusion.
Argument in the appeal before Chief Justice James Allsop, Justice Jonathan Beach and Justice Michael Wheelahan is expected to continue for two more days.Internet Explorer Channel Network