Federal court rules against Commonwealth duty of care claim over climate change impacts for Torres Strait Islanders
Justice Michael Wigney's decision on Tuesday found the applicants - Guda Maluyligal nation men Pabai Pabai and Guy Paul Kabai – had not been successful in producing a case of negligence against the Commonwealth.
Mr Pabai and Mr Kabai asserted that the Commonwealth had responded inadequately and had fallen short in protecting Torres Strait Islanders from the impacts of climate change, claiming it had breached an owed duty of care.
In the decision's summary, Judge Wigney said though he accepted many 'factual allegations' put forward by the men, current Australian law did not allow a 'real or effective avenue' for them to pursue their claims.
His decision stated there is 'no doubt' the Torres Strait Islands have been and are being 'ravaged by the impacts of human-induced climate change'.
'The islands themselves have been, and continue to be, eroded and inundated by rising seas and increasingly severe extreme sea level and weather events,' the judgment said.
Judge Wigney also found that previous governments' efforts to reduce climate change and its impacts had been lacking.
'When the Commonwealth identified and set Australia's greenhouse gas emissions reduction targets in 2015, 2020 and 2021, it failed to engage with or give any real or genuine consideration to what the best available science indicated was required for Australia to play its part in the global effort to moderate or reduce climate change and its impacts,' the decision said.
Mr Pabai and Mr Kabai lack of success in their case was not due to their arguments having no merit, the judge added.
'Rather, it failed because the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims,' the decision said.
'In particular, the common law of negligence in Australia was an unsuitable legal vehicle through which the applicants could obtain relief in respect of the type of governmental action or inaction which was in issue in this case, or relief in respect of their loss of fulfilment of Ailan Kastom.'
The judge ordered Mr Pabai and Mr Kabai and the Commonwealth provide the court with either an agreed draft orders or supply their own differing draft orders regarding the judgement to the court within the next six weeks.
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
Sydney Morning Herald
an hour ago
- Sydney Morning Herald
Bibi's father sold everything to save his daughter. He died before he could see her live
Then, last week, Karuni received a message we never expected. 'I just want to share with you and brother Zach the good news that my resettlement process goes smoothly and I will leave for Australia soon.' Rahimi left Indonesia for Tasmania on Tuesday. The extraordinary efforts of her father, who died in 2020 having never seen his daughter again, had not been in vain. As she left Indonesia with a group of other refugees, she sent us this photo from the airport in Jakarta. We're now waiting to hear how it went — and get her first impressions of the Tasmanian winter. Her goal has been to work with a human rights organisation helping people in her now-former situation. It's not often enough in journalism that you can follow up a heartbreaking story with a positive outcome. This is one of those times. Reality, though, is never far behind. Bibi Rahimi is the exception – one of the fortunate few who qualified for resettlement in Australia. Only the day before she left (a coincidence), more than 200 of the 5000-plus refugees stuck indefinitely in Indonesia demonstrated peacefully outside the Australian embassy in Jakarta. They requested politicians in Canberra amend rules rejecting the resettlement of refugees who arrived in Indonesia after July 1, 2014 – a policy designed to discourage desperate people lobbing on Australia's doorstep. They also want the Australian government to review previously rejected cases from 2009 to 2016 and to help accelerate the resettlement process. Indonesia never signed up to the UN's 1951 Convention and the 1967 Protocol on Refugees, meaning the government there has no obligation to help them – with horrific consequences. Refugees and asylum seekers in Indonesia are among the most destitute and vulnerable people on earth. The Afghan refugees say at least 19 of their number have taken their own lives in recent years, including a case of self-immolation outside the UNHCR's Jakarta office last year, while dozens more have died from untreated illnesses. Organisers said they had been collecting money for months to hire the buses that ferried the demonstrators to our country's embassy in Jakarta's south. The Department of Foreign Affairs declined to say if anyone came out to speak with them. One of the demonstrators, Suhaila Mohammadi, told Karuni she had registered with the UNHCR in February 2017 and was told she and her family would be resettled to a third country within 30 months. 'After nine years, the UNHCR still has not interviewed me to determine my status,' she said. In that time, one of her three children, a nine-month-old boy, died. 'It is because we were living on the street. My son got sick,' she said. Another demonstrator, Masoda Hani, said many family members had been killed by the Taliban. Returning to Afghanistan was out of the question. 'I go to the UNHCR and complain about the situation [in Indonesia] and they said, 'you should find a sponsor'. If we had a sponsor … I wouldn't live here for almost nine years,' she said. Mehran Haydari, one of the organisers of Monday's action, complained of Indonesian authorities fining people upwards of $1400 if they were caught working. None of the refugees had that sort of money, forcing some to rely on loan sharks. The UNHCR in Indonesia did not respond to questions as its spokesperson was ill. The Australian Department of Home Affairs has been contacted for comment. 'Despite the darkness, many of us strive every day to learn, grow, and stay hopeful,' the refugees wrote to Prime Minister Anthony Albanese in May. Loading 'We study what we can, we teach our children in makeshift classrooms, and we build skills to prepare for a day when someone, somewhere, might give us a chance. 'Among us are teachers, engineers, artists, tailors, drivers, caregivers – people who are simply waiting for a door to open. With opportunity, we could become not a burden, but a blessing to any community that welcomes us. We want nothing more than to contribute, to belong, and to live with dignity.' For these refugees, for now, Bibi Rahimi and her group will have to do.
The Age
an hour ago
- The Age
Bibi's father sold everything to save his daughter. He died before he could see her live
Then, last week, Karuni received a message we never expected. 'I just want to share with you and brother Zach the good news that my resettlement process goes smoothly and I will leave for Australia soon.' Rahimi left Indonesia for Tasmania on Tuesday. The extraordinary efforts of her father, who died in 2020 having never seen his daughter again, had not been in vain. As she left Indonesia with a group of other refugees, she sent us this photo from the airport in Jakarta. We're now waiting to hear how it went — and get her first impressions of the Tasmanian winter. Her goal has been to work with a human rights organisation helping people in her now-former situation. It's not often enough in journalism that you can follow up a heartbreaking story with a positive outcome. This is one of those times. Reality, though, is never far behind. Bibi Rahimi is the exception – one of the fortunate few who qualified for resettlement in Australia. Only the day before she left (a coincidence), more than 200 of the 5000-plus refugees stuck indefinitely in Indonesia demonstrated peacefully outside the Australian embassy in Jakarta. They requested politicians in Canberra amend rules rejecting the resettlement of refugees who arrived in Indonesia after July 1, 2014 – a policy designed to discourage desperate people lobbing on Australia's doorstep. They also want the Australian government to review previously rejected cases from 2009 to 2016 and to help accelerate the resettlement process. Indonesia never signed up to the UN's 1951 Convention and the 1967 Protocol on Refugees, meaning the government there has no obligation to help them – with horrific consequences. Refugees and asylum seekers in Indonesia are among the most destitute and vulnerable people on earth. The Afghan refugees say at least 19 of their number have taken their own lives in recent years, including a case of self-immolation outside the UNHCR's Jakarta office last year, while dozens more have died from untreated illnesses. Organisers said they had been collecting money for months to hire the buses that ferried the demonstrators to our country's embassy in Jakarta's south. The Department of Foreign Affairs declined to say if anyone came out to speak with them. One of the demonstrators, Suhaila Mohammadi, told Karuni she had registered with the UNHCR in February 2017 and was told she and her family would be resettled to a third country within 30 months. 'After nine years, the UNHCR still has not interviewed me to determine my status,' she said. In that time, one of her three children, a nine-month-old boy, died. 'It is because we were living on the street. My son got sick,' she said. Another demonstrator, Masoda Hani, said many family members had been killed by the Taliban. Returning to Afghanistan was out of the question. 'I go to the UNHCR and complain about the situation [in Indonesia] and they said, 'you should find a sponsor'. If we had a sponsor … I wouldn't live here for almost nine years,' she said. Mehran Haydari, one of the organisers of Monday's action, complained of Indonesian authorities fining people upwards of $1400 if they were caught working. None of the refugees had that sort of money, forcing some to rely on loan sharks. The UNHCR in Indonesia did not respond to questions as its spokesperson was ill. The Australian Department of Home Affairs has been contacted for comment. 'Despite the darkness, many of us strive every day to learn, grow, and stay hopeful,' the refugees wrote to Prime Minister Anthony Albanese in May. Loading 'We study what we can, we teach our children in makeshift classrooms, and we build skills to prepare for a day when someone, somewhere, might give us a chance. 'Among us are teachers, engineers, artists, tailors, drivers, caregivers – people who are simply waiting for a door to open. With opportunity, we could become not a burden, but a blessing to any community that welcomes us. We want nothing more than to contribute, to belong, and to live with dignity.' For these refugees, for now, Bibi Rahimi and her group will have to do.
The Advertiser
an hour ago
- The Advertiser
Workers optimistic but employers wary over wages bill
About one in seven Australian workers will have their penalty rates increased and their employers will not be able to reduce them, under changes proposed by the Albanese government. One of those workers is service assistant Ruth Sumner, who for 25 years had to struggle to provide for her kids. Although her children have moved out, she still has to look for deals to pay for her basic needs, sacrificing her quality of life. "It's sad because everything's going up. It's your power and everything," Ms Sumner told AAP. "I look at an apple that I really like but if there's one two dollars cheaper, I'm going to buy the cheaper one." She stands to benefit from a bill Labor has introduced to the lower house that seeks to enshrine higher rates of pay for award workers when they work late nights, early hours, weekends and public holidays. If it is passed, award workers will earn a base weekend penalty rate of about $40 an hour. While rates can vary depending on an employee's specific award or agreement applicable to that industry, common pay rates for workers on a Sunday are double time (200 per cent) or time and a half (150 per cent). A calculation of rates on the Fair Work Commission's website shows a common penalty for a casual hospitality Saturday shift to be $40.85 per hour, while a Sunday shift could bring in $47.65 per hour. Ms Rishworth said award workers deserved to have their wages protected. "Wages of low-paid workers should not go backwards because that's not fair and not what Australians expect of our workplace relation system," Ms Rishworth said as she introduced the bill. The Australian Chamber of Commerce and Industry said the bill was anything but simple and fair, calling it a "backwards step". Acting chief executive David Alexander said it made negotiating wage changes harder for employers, especially small businesses who already struggled to work through the "complex" fair work act. "Tying Australian businesses up in knots around workplace systems has the effect of strangling growth and that means less jobs and lower wages," Mr Alexander said. "This bill is at odds with the government's plans to improve productivity, and instead injects more rigidity and complexity into the fair work laws." Opposition employment spokesman Tim Wilson said the coalition supported penalty rates, but agreed the government had overlooked small businesses who had not been adequately consulted. He floated holding a Senate inquiry so employers' could voice their concerns. "There's concerns that this may undermine the role of the Fair Work Commission," Mr Wilson said. "If anything, small business needs to be brought into the conversation because they need hope, and when you need hope, the best way to give it is to be part of the conversation about the way forward." Mr Wilson said the absence of a regulatory impact statement, which lays out the potential impacts of the proposed changes, meant consultation was even more important. The Australian Council of Trade Unions said young people, women and casual workers would suffer most if higher penalty rates were not enshrined. "Unfortunately, for decades, employers have pushed and pushed to erode or abolish them," secretary Sally McManus said. The Shop, Distributive and Allied Employees Association said wage theft remained a problem in the retail and fast food industries, and the protections would force employers to show they respect their workers. The bill will be passed to MPs before it is debated in parliament at a later date. About one in seven Australian workers will have their penalty rates increased and their employers will not be able to reduce them, under changes proposed by the Albanese government. One of those workers is service assistant Ruth Sumner, who for 25 years had to struggle to provide for her kids. Although her children have moved out, she still has to look for deals to pay for her basic needs, sacrificing her quality of life. "It's sad because everything's going up. It's your power and everything," Ms Sumner told AAP. "I look at an apple that I really like but if there's one two dollars cheaper, I'm going to buy the cheaper one." She stands to benefit from a bill Labor has introduced to the lower house that seeks to enshrine higher rates of pay for award workers when they work late nights, early hours, weekends and public holidays. If it is passed, award workers will earn a base weekend penalty rate of about $40 an hour. While rates can vary depending on an employee's specific award or agreement applicable to that industry, common pay rates for workers on a Sunday are double time (200 per cent) or time and a half (150 per cent). A calculation of rates on the Fair Work Commission's website shows a common penalty for a casual hospitality Saturday shift to be $40.85 per hour, while a Sunday shift could bring in $47.65 per hour. Ms Rishworth said award workers deserved to have their wages protected. "Wages of low-paid workers should not go backwards because that's not fair and not what Australians expect of our workplace relation system," Ms Rishworth said as she introduced the bill. The Australian Chamber of Commerce and Industry said the bill was anything but simple and fair, calling it a "backwards step". Acting chief executive David Alexander said it made negotiating wage changes harder for employers, especially small businesses who already struggled to work through the "complex" fair work act. "Tying Australian businesses up in knots around workplace systems has the effect of strangling growth and that means less jobs and lower wages," Mr Alexander said. "This bill is at odds with the government's plans to improve productivity, and instead injects more rigidity and complexity into the fair work laws." Opposition employment spokesman Tim Wilson said the coalition supported penalty rates, but agreed the government had overlooked small businesses who had not been adequately consulted. He floated holding a Senate inquiry so employers' could voice their concerns. "There's concerns that this may undermine the role of the Fair Work Commission," Mr Wilson said. "If anything, small business needs to be brought into the conversation because they need hope, and when you need hope, the best way to give it is to be part of the conversation about the way forward." Mr Wilson said the absence of a regulatory impact statement, which lays out the potential impacts of the proposed changes, meant consultation was even more important. The Australian Council of Trade Unions said young people, women and casual workers would suffer most if higher penalty rates were not enshrined. "Unfortunately, for decades, employers have pushed and pushed to erode or abolish them," secretary Sally McManus said. The Shop, Distributive and Allied Employees Association said wage theft remained a problem in the retail and fast food industries, and the protections would force employers to show they respect their workers. The bill will be passed to MPs before it is debated in parliament at a later date. About one in seven Australian workers will have their penalty rates increased and their employers will not be able to reduce them, under changes proposed by the Albanese government. One of those workers is service assistant Ruth Sumner, who for 25 years had to struggle to provide for her kids. Although her children have moved out, she still has to look for deals to pay for her basic needs, sacrificing her quality of life. "It's sad because everything's going up. It's your power and everything," Ms Sumner told AAP. "I look at an apple that I really like but if there's one two dollars cheaper, I'm going to buy the cheaper one." She stands to benefit from a bill Labor has introduced to the lower house that seeks to enshrine higher rates of pay for award workers when they work late nights, early hours, weekends and public holidays. If it is passed, award workers will earn a base weekend penalty rate of about $40 an hour. While rates can vary depending on an employee's specific award or agreement applicable to that industry, common pay rates for workers on a Sunday are double time (200 per cent) or time and a half (150 per cent). A calculation of rates on the Fair Work Commission's website shows a common penalty for a casual hospitality Saturday shift to be $40.85 per hour, while a Sunday shift could bring in $47.65 per hour. Ms Rishworth said award workers deserved to have their wages protected. "Wages of low-paid workers should not go backwards because that's not fair and not what Australians expect of our workplace relation system," Ms Rishworth said as she introduced the bill. The Australian Chamber of Commerce and Industry said the bill was anything but simple and fair, calling it a "backwards step". Acting chief executive David Alexander said it made negotiating wage changes harder for employers, especially small businesses who already struggled to work through the "complex" fair work act. "Tying Australian businesses up in knots around workplace systems has the effect of strangling growth and that means less jobs and lower wages," Mr Alexander said. "This bill is at odds with the government's plans to improve productivity, and instead injects more rigidity and complexity into the fair work laws." Opposition employment spokesman Tim Wilson said the coalition supported penalty rates, but agreed the government had overlooked small businesses who had not been adequately consulted. He floated holding a Senate inquiry so employers' could voice their concerns. "There's concerns that this may undermine the role of the Fair Work Commission," Mr Wilson said. "If anything, small business needs to be brought into the conversation because they need hope, and when you need hope, the best way to give it is to be part of the conversation about the way forward." Mr Wilson said the absence of a regulatory impact statement, which lays out the potential impacts of the proposed changes, meant consultation was even more important. The Australian Council of Trade Unions said young people, women and casual workers would suffer most if higher penalty rates were not enshrined. "Unfortunately, for decades, employers have pushed and pushed to erode or abolish them," secretary Sally McManus said. The Shop, Distributive and Allied Employees Association said wage theft remained a problem in the retail and fast food industries, and the protections would force employers to show they respect their workers. The bill will be passed to MPs before it is debated in parliament at a later date. About one in seven Australian workers will have their penalty rates increased and their employers will not be able to reduce them, under changes proposed by the Albanese government. One of those workers is service assistant Ruth Sumner, who for 25 years had to struggle to provide for her kids. Although her children have moved out, she still has to look for deals to pay for her basic needs, sacrificing her quality of life. "It's sad because everything's going up. It's your power and everything," Ms Sumner told AAP. "I look at an apple that I really like but if there's one two dollars cheaper, I'm going to buy the cheaper one." She stands to benefit from a bill Labor has introduced to the lower house that seeks to enshrine higher rates of pay for award workers when they work late nights, early hours, weekends and public holidays. If it is passed, award workers will earn a base weekend penalty rate of about $40 an hour. While rates can vary depending on an employee's specific award or agreement applicable to that industry, common pay rates for workers on a Sunday are double time (200 per cent) or time and a half (150 per cent). A calculation of rates on the Fair Work Commission's website shows a common penalty for a casual hospitality Saturday shift to be $40.85 per hour, while a Sunday shift could bring in $47.65 per hour. Ms Rishworth said award workers deserved to have their wages protected. "Wages of low-paid workers should not go backwards because that's not fair and not what Australians expect of our workplace relation system," Ms Rishworth said as she introduced the bill. The Australian Chamber of Commerce and Industry said the bill was anything but simple and fair, calling it a "backwards step". Acting chief executive David Alexander said it made negotiating wage changes harder for employers, especially small businesses who already struggled to work through the "complex" fair work act. "Tying Australian businesses up in knots around workplace systems has the effect of strangling growth and that means less jobs and lower wages," Mr Alexander said. "This bill is at odds with the government's plans to improve productivity, and instead injects more rigidity and complexity into the fair work laws." Opposition employment spokesman Tim Wilson said the coalition supported penalty rates, but agreed the government had overlooked small businesses who had not been adequately consulted. He floated holding a Senate inquiry so employers' could voice their concerns. "There's concerns that this may undermine the role of the Fair Work Commission," Mr Wilson said. "If anything, small business needs to be brought into the conversation because they need hope, and when you need hope, the best way to give it is to be part of the conversation about the way forward." Mr Wilson said the absence of a regulatory impact statement, which lays out the potential impacts of the proposed changes, meant consultation was even more important. The Australian Council of Trade Unions said young people, women and casual workers would suffer most if higher penalty rates were not enshrined. "Unfortunately, for decades, employers have pushed and pushed to erode or abolish them," secretary Sally McManus said. The Shop, Distributive and Allied Employees Association said wage theft remained a problem in the retail and fast food industries, and the protections would force employers to show they respect their workers. The bill will be passed to MPs before it is debated in parliament at a later date.
