Climate ruling exposes gap in government duty of care

The Advertiser

16-07-2025

A court ruling in a landmark climate case has drawn attention to a gap in Australian law, legal experts say.
Uncle Pabai Pabai and Uncle Paul Kabai first brought the case against the Commonwealth government, fearing for the future of their homelands on the islands of Boigu and Saibai.
Federal Court Justice Michael Wigney on Tuesday ruled the Commonwealth did not owe the Torres Strait Islanders a duty of care.
Uncle Paul Kabai said he was shocked at the decision, and had been expecting to win the case.
"It's a bit emotional because we were expecting a good outcome," he told AAP.
The uncles weren't the only ones expecting a win.
Keenly watching the judgment was Judi Storer, a casual academic at Flinders University's college of business, government and law.
"About halfway through I was actually in tears because from what the justice was saying I thought they were going to win," she said.
"Then he said 'however' and my heart sank."
Justice Wigney ruled negligence law does not allow compensation when it comes to government policy decisions, despite accepting many of the key factual elements of the uncles' case including the impact of climate change on their islands.
"That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellant courts or by the enactment of legislation," he said.
Ms Storer said it is time for the law to change.
"This is a real gap in our law because it basically says our government can make terrible policy that hurts people, that harms people and the government doesn't actually owe any duty of care to those people," she said.
"As citizens of Australia we have no recourse against our government for making decisions that turn out to be negligent."
In handing down his decision, Justice Wigney said he did not consider it open to him to rule otherwise, nor to recognise loss of culture as compensable in law for the first time.
The uncles have not ruled out appealing but Mr Kabai said they will take their next move "step by step".
"When we take the next step, the government will have to listen to not only us in the Torres Strait but people all around Australia," he said.
The court has left open the possibility to revisit whether a duty of care is owed by the government, University of NSW Institute for Climate Risk and Resilience researcher Riona Moodley said.
Courts in countries such as the Netherlands and Switzerland have recognised similar duties and Australian law will need to adapt, she said.
Ms Storer can only envisage change on this polarising issue coming through the courts, because "I just cannot see how parliament will legislate to make themselves more accountable".
A court ruling in a landmark climate case has drawn attention to a gap in Australian law, legal experts say.
Uncle Pabai Pabai and Uncle Paul Kabai first brought the case against the Commonwealth government, fearing for the future of their homelands on the islands of Boigu and Saibai.
Federal Court Justice Michael Wigney on Tuesday ruled the Commonwealth did not owe the Torres Strait Islanders a duty of care.
Uncle Paul Kabai said he was shocked at the decision, and had been expecting to win the case.
"It's a bit emotional because we were expecting a good outcome," he told AAP.
The uncles weren't the only ones expecting a win.
Keenly watching the judgment was Judi Storer, a casual academic at Flinders University's college of business, government and law.
"About halfway through I was actually in tears because from what the justice was saying I thought they were going to win," she said.
"Then he said 'however' and my heart sank."
Justice Wigney ruled negligence law does not allow compensation when it comes to government policy decisions, despite accepting many of the key factual elements of the uncles' case including the impact of climate change on their islands.
"That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellant courts or by the enactment of legislation," he said.
Ms Storer said it is time for the law to change.
"This is a real gap in our law because it basically says our government can make terrible policy that hurts people, that harms people and the government doesn't actually owe any duty of care to those people," she said.
"As citizens of Australia we have no recourse against our government for making decisions that turn out to be negligent."
In handing down his decision, Justice Wigney said he did not consider it open to him to rule otherwise, nor to recognise loss of culture as compensable in law for the first time.
The uncles have not ruled out appealing but Mr Kabai said they will take their next move "step by step".
"When we take the next step, the government will have to listen to not only us in the Torres Strait but people all around Australia," he said.
The court has left open the possibility to revisit whether a duty of care is owed by the government, University of NSW Institute for Climate Risk and Resilience researcher Riona Moodley said.
Courts in countries such as the Netherlands and Switzerland have recognised similar duties and Australian law will need to adapt, she said.
Ms Storer can only envisage change on this polarising issue coming through the courts, because "I just cannot see how parliament will legislate to make themselves more accountable".
A court ruling in a landmark climate case has drawn attention to a gap in Australian law, legal experts say.
Uncle Pabai Pabai and Uncle Paul Kabai first brought the case against the Commonwealth government, fearing for the future of their homelands on the islands of Boigu and Saibai.
Federal Court Justice Michael Wigney on Tuesday ruled the Commonwealth did not owe the Torres Strait Islanders a duty of care.
Uncle Paul Kabai said he was shocked at the decision, and had been expecting to win the case.
"It's a bit emotional because we were expecting a good outcome," he told AAP.
The uncles weren't the only ones expecting a win.
Keenly watching the judgment was Judi Storer, a casual academic at Flinders University's college of business, government and law.
"About halfway through I was actually in tears because from what the justice was saying I thought they were going to win," she said.
"Then he said 'however' and my heart sank."
Justice Wigney ruled negligence law does not allow compensation when it comes to government policy decisions, despite accepting many of the key factual elements of the uncles' case including the impact of climate change on their islands.
"That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellant courts or by the enactment of legislation," he said.
Ms Storer said it is time for the law to change.
"This is a real gap in our law because it basically says our government can make terrible policy that hurts people, that harms people and the government doesn't actually owe any duty of care to those people," she said.
"As citizens of Australia we have no recourse against our government for making decisions that turn out to be negligent."
In handing down his decision, Justice Wigney said he did not consider it open to him to rule otherwise, nor to recognise loss of culture as compensable in law for the first time.
The uncles have not ruled out appealing but Mr Kabai said they will take their next move "step by step".
"When we take the next step, the government will have to listen to not only us in the Torres Strait but people all around Australia," he said.
The court has left open the possibility to revisit whether a duty of care is owed by the government, University of NSW Institute for Climate Risk and Resilience researcher Riona Moodley said.
Courts in countries such as the Netherlands and Switzerland have recognised similar duties and Australian law will need to adapt, she said.
Ms Storer can only envisage change on this polarising issue coming through the courts, because "I just cannot see how parliament will legislate to make themselves more accountable".
A court ruling in a landmark climate case has drawn attention to a gap in Australian law, legal experts say.
Uncle Pabai Pabai and Uncle Paul Kabai first brought the case against the Commonwealth government, fearing for the future of their homelands on the islands of Boigu and Saibai.
Federal Court Justice Michael Wigney on Tuesday ruled the Commonwealth did not owe the Torres Strait Islanders a duty of care.
Uncle Paul Kabai said he was shocked at the decision, and had been expecting to win the case.
"It's a bit emotional because we were expecting a good outcome," he told AAP.
The uncles weren't the only ones expecting a win.
Keenly watching the judgment was Judi Storer, a casual academic at Flinders University's college of business, government and law.
"About halfway through I was actually in tears because from what the justice was saying I thought they were going to win," she said.
"Then he said 'however' and my heart sank."
Justice Wigney ruled negligence law does not allow compensation when it comes to government policy decisions, despite accepting many of the key factual elements of the uncles' case including the impact of climate change on their islands.
"That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellant courts or by the enactment of legislation," he said.
Ms Storer said it is time for the law to change.
"This is a real gap in our law because it basically says our government can make terrible policy that hurts people, that harms people and the government doesn't actually owe any duty of care to those people," she said.
"As citizens of Australia we have no recourse against our government for making decisions that turn out to be negligent."
In handing down his decision, Justice Wigney said he did not consider it open to him to rule otherwise, nor to recognise loss of culture as compensable in law for the first time.
The uncles have not ruled out appealing but Mr Kabai said they will take their next move "step by step".
"When we take the next step, the government will have to listen to not only us in the Torres Strait but people all around Australia," he said.
The court has left open the possibility to revisit whether a duty of care is owed by the government, University of NSW Institute for Climate Risk and Resilience researcher Riona Moodley said.
Courts in countries such as the Netherlands and Switzerland have recognised similar duties and Australian law will need to adapt, she said.
Ms Storer can only envisage change on this polarising issue coming through the courts, because "I just cannot see how parliament will legislate to make themselves more accountable".