Gordon, Faith --- "Climate Harm and Future Generations: Young People Pushing for Australian Law to Change With the Time" [2024] UNSWLawSocCConsc 8; (2024) 18 UNSW Law Society Court of Conscience 47

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CLIMATE HARM AND FUTURE GENERATIONS:

YOUNG PEOPLE PUSHING FOR AUSTRALIAN LAW

TO CHANGE WITH THE TIMES

Faith Gordon^*

I Introduction: Urgent Times In Addressing

Climate Harm For Future Generations

‘People are suffering. People are dying. Entire ecosystems are collapsing. We are in the beginning of a mass extinction’ – Greta Thunberg.^[1]

‘It is our future on the line, and we must at least have a say in it’ – Greta Thunberg.^[2]

Climate change presents an urgent fundamental threat to human health and wellbeing and poses a critical threat to the future.^[3] The World Health Organisation observes that climate change is directly contributing to humanitarian emergencies due to heatwaves, wildfires, floods, tropical storms and hurricanes, which are increasing in their scale, frequency and intensity.^[4] Research demonstrates that over 3.6 billion people live in areas which are highly susceptible to climate change,^[5] with the Lancet Countdown report demonstrating that young people disproportionately bear the impact of climate change, both physically and psychologically.^[6] As youth climate activist, Greta Thunberg asserts, young people feel that ‘[i]t is our future on the line’^[7] and that adults have let them down.

While a wealth of literature exists on young people’s access to justice and legal needs,^[8] there has been limited attention paid to how groups of young people can utilise the law as a tool to seek redress, challenge injustices and chart new pathways for future generations. Namely through strategic litigation and more recently youth involvement in initiating strategic legislation, young people and other social groups can challenge injustices and push for the law to change with the times, in order to protect the interests of current and future generations.

There is limited literature on class actions, strategic litigation and strategic legislation in the Global South, particularly literature that focuses on the lived-realities, reactions and results of youth-led strategic climate litigation and youth-initiated strategic climate legislation.^[9] This paper presents a brief discussion of the realities, reactions and results of climate activism, strategic litigation and strategic legislation that is initiated and led by young people in the areas of climate and environmental law in Australia. The paper draws upon three core examples of youth-led strategic climate litigation and youth-initiated strategic climate legislation in Australia: Sharma v Minister for the Environment (2021) [2021] FCA 560; (2021) 391 ALR 1; Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21, and the proposed Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023. The paper situates the discussion within the international child rights framework, and in particular young people’s right to participate — Article 12 of the UN Convention on the Rights of the Child 1989 — or as Greta Thunberg describes in the above quotation it as ‘we must at least have a say in it’.^[10]

A ‘Having a Say’: Youth Climate Activism

Through activism, young people have been central in bringing about what Pickard et al. refer to as a ‘watershed moment’ in the politics of climate change.^[11] Youth-led strategic litigation and youth-initiated strategic legislation in many ways represents ‘political’ actions. Due to mainstream and social media representations, they are public and often take the form of visible examples of young people in conflict with the government or challenging large corporations, or in partnership with elected politicians to initiate legislative change (for example, David Pocock, Senator of Australia). Significantly, class action jurisprudence, strategic litigation and strategic legislation, are evolving as part of global climate action and social movements.

The body of existing research on youth activism demonstrates how ‘the participatory politics of young people is informed by the participatory culture they experience on social media’.^[12] Clark et al observe how social media platforms and online activism ‘present catalytic opportunities to harness young people’s engagement’.^[13] Young people’s use of social media platforms is ‘transforming political engagement’ as they offer ‘agency through the ability to voice their concerns to a global audience’.^[14]

A study on Australian youth perspectives on the role of social media in climate action, concludes that it is ‘a powerful mechanism for awareness raising’, ‘to engage diverse youth audiences’, and is essential in ‘building a sense of urgency and accountability’.^[15] However, Australian young people who participated in this study felt that there were limitations in reaching and influencing decision makers,^[16] as they felt that many adults in decision-making roles do not engage widely with social media content. The proposed social media ban for children and young people in Australia^[17] will negatively impact their ability to exercise civil and political rights, particularly in relation to their climate activism.

Australian youth climate activists have given speeches in front of global leaders, as well as to national leaders in the audience, calling for political change and urgent action to address climate change. While at the same time some of the Australian State and Territory governments have been working ‘to silence youth voices’, with the latest example being the ‘concerted effort to criminalise climate protests and to limit the Australian public’s right to peaceful assembly’.^[18] However, young people have been utilising new and significant tools including the law, to seek redress, challenge injustices and chart new pathways for future generations.

B Youth-Led Strategic Climate Litigation

Globally, climate litigation is becoming more prevalent. The Grantham Institute at the London School of Economics reports that the number of climate change related cases has more than doubled since 2015.^[19] Many of the existing and ongoing climate cases set out to hold governments accountable for failure to act in line with their climate commitments and global targets, with human rights arguments often employed in such cases.^[20]

On 8 September 2020, eight young people represented by Equity Generation Lawyers, and with the assistance of 86-year-old litigation guardian Sister Brigid Arthur, filed an action in Australia’s Federal Court seeking an injunction to stop the Australian Government from approving an extension of the Whitehaven Vickery coal mine. Claiming to represent all people under the age of 18, the litigants argued that the then Federal Minister, Sussan Ley has a common law duty of care for all children and young people. The litigants also argued that the digging up and burning of coal would exacerbate climate change and harm children and young people in the future.

On 27 May 2021, the Federal Court of Australia in Sharma and others v Minister for Environment (2021) 248 LGERA 330, established a new duty of care to avoid causing personal harm to children but did not issue an injunction to force the Minister to block the coal mine extension. Justice Bromberg found at [293]:

It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. The physical environment will be harsher, far more extreme... As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.^[21]

On 15 March 2022, the Full Federal Court of Australia unanimously overturned the primary judge’s decision to impose a duty of care on the Minister.^[22] As lead applicant, Anjali Sharma wrote: ‘losing this case feels like we’ve lost our chance for a safe future’.^[23]

On 13 May 2020, the environmental group ‘Youth Verdict’, a First Nations-led group of young people aged 13 to 30-years, lodged an objection on human rights grounds, challenging the proposed Galilee Coal Project in the Queensland Land Court. The litigants argued that the project would contribute to climate change, would infringe on their right to life, the protection of children, and the right to culture as protected by the Queensland Human Rights Act. In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No. 6) [2022] QLC 21, President Kingham of the Land Court of Queensland recommended refusal of applications by Waratah Coal Pty Ltd for a mining lease and an environmental authority in relation to a proposed thermal coal mine in the Galilee Basin. The Court found that the project would interfere with the right to life of people in Queensland, the cultural rights of First Nations People, the rights of children, the right to property, the right to privacy and home, and the right to enjoy human rights without discrimination.

C Youth-Initiated Strategic Climate Legislation

One of the latest interventions by youth is climate legislation initiated by young people, including the latest push for legislative change in Australia with the proposed Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (‘Climate Change Bill’). The Bill was put forward by Senator David Pocock in 2023, with the idea for the legislation initiated by Anjali Sharma and her lawyers following the appellate court decision.^[24]

On 3 August 2023, the Senate referred the Climate Change Bill to the Environment and Communications Legislation Committee for inquiry and report by 1 February 2024. On 3 June 2024, the Committee was granted an extension of time for the report until 26 June 2024. The Bill seeks to amend the Climate Change Act 2022 to require decision makers to consider the wellbeing of current and future children when making certain decisions that are likely to contribute to climate change.^[25] Young people, including Anjali Sharma continue to lobby Federal parliamentarians on this issue.^[26]

The Environment and Communications Legislation Committee’s report was published in June 2024. The report made two clear recommendations:

Recommendation 1

2.135 The committee recommends that the bill not be passed.

Recommendation 2

2.137 The committee recommends that the Australian Government consider the utilisation of the Australian Human Rights Commission’s Child Rights Impact Assessment Tool to assist in policy development and decision making.^[27]

While the Committee’s report outlined that ‘policy development and assessment processes may benefit from a more explicit emphasis on the implications of decisions for children and future generations’, the Committee recommended the use of ‘a non-binding... child rights impact assessment tool’ to assist in policy development and decision making on new or expanded coal, gas or oil projects.^[28] Following the publication of the Committee’s report, several young people who have been campaigning in support of the duty of care recorded their dismay at the recommendation against the legislation. As Anjali Sharma said: 

It is outrageous that a government should deny that it has a duty of care to the young people of today and tomorrow. This serves as yet another blow to a generation quickly losing faith in the political system. Despite... substantial public and cross-parliamentary support for the bill, the government has chosen to elevate the voices of fossil fuel lobbyists in parliament rather than those who stand to have their future shaped by today’s policies.^[29]

Anjali Sharma compared Australia to the ‘161 countries [that] have enshrined the right of children to a healthy environment’, further noting that: ‘[s]ome have gone even further, instating future generations-specific legislation and statutory bodies. In rejecting this duty of care, the Australian government is once again making our country out to be a laggard on issues of utmost importance’.^[30]

While children and young people in Australia are the least responsible for climate change, research demonstrates that this generation and future generations will be the most impacted by the negative consequences of climate change on the environment.^[31] It is therefore critical that national governments act to develop and implement climate law, policies and practices that prioritise a child-centred response. The recommendation from the Environment and Communications Legislation Committee not to pass the proposed amendment, shows a lack of prioritisation of the well-being and needs of children, young people and future generations.

II Conclusion: Australian Law Needs To Change With The Times

The climate crisis is a child rights crisis, which needs to be urgently addressed by governments. Young people around the world are calling for government action to protect them and to protect future generations from further harm.^[32] The United Nations Committee on the Rights of the Child has strongly urged governments to respond to young people’s concerns about the negative implications of climate change. In the context of the law, it is evident that, ‘[c]limate change law is everywhere – in courtrooms, in international treaty negotiations, in new climate legislation in countries around the world... Climate change also poses deeper questions for the institution of law, and the role that law plays in society’.^[33]

In changing with the times, the law will likely continue to be utilised more extensively to address the climate crisis. It is likely that the law will be required to continue to grapple with, and address climate change impacts. By utilising the tools of the law to litigate and initiate legislation, young people in Australia are directly engaging their right to participate. In 1990, Australia signed up to the United Nations Convention on the Rights of the Child 1989 (‘CRC’). Article 12 of the CRC states that: ‘Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child’.^[34] The United Nations Development Program states that ‘meaningful youth participation is a pre-condition for the success of climate action while at the same time, ensuring ambitious and just climate action is an enabling condition for youth wellbeing’.^[35]

Young people today are acting to create a climate-safe world. Legal mobilisation for climate change that is initiated and driven by young people (and in combination with grassroots activism), is using the courts and the legislative functions of parliament, as effective instruments to make solid progress in achieving significant collective objectives. In effect young people in Australia are pushing for the law to urgently change with the times. Their efforts need to be met with action from the Australian Government.

Acknowledgements: This research is funded by the Australia Research Council for the Discovery Project: ‘New Possibilities: Student Climate Action and Democratic Renewal’ (DP230101704). Funding received with colleagues - Pip Collins, Judith Bessant, Michelle Catanzaro, Stewart Jackson and Rob Watts. Thanks also to the anonymous reviewers and to the editorial board.

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^* Dr Faith Gordon is an Associate Professor at the ANU College of Law, The Australian National University and Associate Research Fellow, Information Law and Policy, Centre at the Institute of Advanced Legal Studies, London. Faith is the Director of the Interdisciplinary International Youth Justice Network and a co-founder and co-moderator of the Australian and New Zealand Society of Criminology&#82[1]s Thematic Group on children, young people and the criminal justice system. Faith’s current funded research addresses three topical contemporary issues: 1) children’s rights in criminal justice and in immigration law; 2) children, online harms, and AI/emerging technologies; 3) children and climate action. Faith’s research has been referred to by the UN Committee on the Rights of the Child, in the Northern Ireland High Court, the UK Court of Appeal and the Youth Court in Aotearoa New Zealand. Faith’s research on online harms was referred to by the UK Joint Committee on Draft Online Safety Bill, House of Lords. In 2022, Faith was awarded the ANU Vice-Chancellor’s Award for Influential Impact and Engagement. Email: [e-mail] X: @Dr_FaithG

¹ Transcript: Greta Thunberg's Speech At The U.N. Climate Action Summit, September 23, 2019 (online, 23 September 2019) <https://www.npr.org/2019/09/23/763452863/transcript-greta-thunbergs-speech-at-the-u-n-climate-action-summit>.

^[2] Lisa Friedman, ‘Greta Thunberg to Attend New York Climate Talks. She’ll Take a Sailboat’, The New York Times (online, 29 July 2019) <https://www.nytimes.com/2019/07/29/climate/greta-thunberg-sailing-climate-summit.html>.

^[3] ‘Climate Change’, World Health Organisation (Web Page) <https://www.who.int/news-room/fact-sheets/detail/climate-change-and-health>.

^[4] Ibid.

^[5] Ibid.

^[6] Watts et al, ‘The 2019 Report of The Lancet Countdown on Health and Climate Change: Ensuring that the Health of a Child Born Today is not Defined by a Changing Climate’ (2019) 394(10211) The Lancet 1836.

^[7] Friedman (n 2).

^[8] Ellie Palmer and James Kendrick, ‘Access to Justice for Young People: Beyond the Policies and Politics of Austerity’ in Ellie Palmer et al (eds), Access to Justice: Beyond the Policies and Politics of Austerity (Bloomsbury Publishing, 2016); Ton Liefaard, ‘Access to Justice for Children: Towards a Specific Research and Implementation Agenda’ (2019) 27(2) The International Journal of Children's Rights 195.

^[9] For a recent exception, see Jolene Lin and Jacqueline Peel, Litigating Climate Change in the Global South (Oxford University Press, 2024).

^[10] Friedman (n 2).

^[11] Sarah Pickard, Benjamin Bowman and Dena Arya, ‘“We are Radical in Our Kindness”: The Political Socialisation, Motivations, Demands and Protest Actions of Young Environmental Activists in Britain’ (2020) 2(2) Youth Globalization 251, 251.

^[12] Francesca Belotti et al, ‘Youth Activism for Climate on and Beyond Social Media: Insights from Fridays For Future-Rome’ (2022) 27(3) The International Journal of Press/Politics 718, 720.

^[13] Helen Clark et al, ‘A Future For the World's Children? A WHO–UNICEF–Lancet Commission’ (2020) 395(10224) The Lancet 605, 617.

^[14] Shelley Boulianne, Mireille Lalancette and David Ilkiw, ‘“School Strike 4 Climate”: Social Media and the International Youth Protest on Climate Change’ (2020) 8(2) Media and Communication 208, 208–9.

^[15] Grace Arnot et al, ‘Australian Youth Perspectives on the Role of Social Media in Climate Action’ (2023) 48(1) Australian and New Zealand Journal of Public Health 1, 1–5.

^[16] Ibid 1.

^[17] Josh Taylor, ‘Australia Plans to Ban Children From Social Media. Is Checking and Enforcing An Age Block possible?’, The Guardian (online, 10 September 2024) <https://www.theguardian.com/australia-news/article/2024/sep/10/australia-children-social-media-ban-age-limit-under-16-details>.

^[18] Madelein Hohenhaus et al, ‘Climate Warriors Down Under: Contextualising Australia’s Youth Climate Justice Movement’ (2023) 45 npj Climate Action 1, 4.

^[19] Joana Setzer and Catherine Higham, ‘Global Trends in Climate Change Litigation: 2021 Snapshot’ (Policy Report, London School of Economics and Political Science Grantham Research Institute on Climate Change and the Environment, July 2021) 4.

^[20] United Nations Environment Programme, Global Climate Litigation Report: 2023 Status Review (Status Review Report, 27 July 2023).

^[21] Sharma and others v Minister for Environment [2021] FCA 560; (2021) 391 ALR 1, 72 [293].

^[22] Sharma and others v Minister for the Environment (2022) 401 ALR 108.

^[23] Anjali Sharma, ‘Losing This Case Feels Like We’ve Lost Our Chance For a Safe Future’, The Age (online, 15 March 2022) <https://www.theage.com.au/environment/climate-change/losing-thiscourt-case-feels-like-we-ve-lost-our-chance-for-a-safe-future-20220315-p5a4sc.html>.

^[24] ‘Call of Duty – Anjali Sharma’, Australian Broadcasting Corporation (Web Page, 2024) <https://www.abc.net.au/news/2024-03-11/call-of-duty-anjali-sharma/103574470>.

^[25] Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth) (‘Climate Change Bill’).

^[26] ‘Anjali Sharma on Lobbying Parliament From Her Dorm Room’, 7AM Podcast (Schwartz Media, 2024) <https://www.themonthly.com.au/podcast/anjali-sharma-lobbying-parliament-her-dorm-room>.

^[27] Climate Change Bill (n 25).

^[28] Ibid 38–9; Human Rights Law Centre, ‘Albanese Government Urged to Protect Current and Future Generations from Impacts of Climate Crisis’ (Media Release, 27 June 2024).

^[29] Human Rights Law Centre (n 28).

^[30] Ibid. See also for reactions from other young people: ‘Save the Children “Deeply Disappointed” with Senate committee Decision on Pocock’s Young People Bill’, The Guardian (online, 27 June 2024) <https://www.theguardian.com/australia-news/live/2024/jun/27/australia-politics-live-julian-assange-free-act-bird-flu-nsw-vic-qld-labor-coalition-albanese-interest-rates-inflation-ntwnfb?filterKeyEvents=false&page=with:block-667c95448f08a8aaa70e4776>.

^[31]UNICEF, Making Climate and Environment Policies for & with Children and Young People (Discussion Paper, November 2021) <https://www.unicef.org/media/109701/file/Making-Climate-Policies-for-and-with-Children-and-Young-People.pdf>.

^[32] ‘Climate Crisis: Child Rights Crisis’, UNICEF (Web Page, 2024) <https://www.unicef.org.uk/climate-change/>.

^[33] Maria Lee et al, ‘Revisiting the Rule of Law in the Climate Rrisis: Legal Bedrock or Legal Luxury?’, UCL Blog (Web Page, 4 October 2021) <https://www.ucl.ac.uk/law-environment/blog-climate-change-and-rule-law/revisiting-rule-law-climate-crisis-legal-bedrock-or-legal-luxury>.

^[34] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 12.

^[35] Melissa Ingaruca et al, Aiming Higher: Elevating Meaningful Youth Engagement for Climate Action (Report, 2022) 9.