Liz Hicks

The recent Federal Court decision of Pabai v Commonwealth (No 2) [2025] FCA 796 considered whether the Commonwealth owed two duties of care to the Torres Strait Islander people with respect to particular harms connected with climate change. The Court rejected the plaintiffs’ claims. The decision is relevant on a number of fronts, including its findings regarding causation and that the cultural loss and harm experienced by the plaintiffs — fulfilment of Ailan Kastom — was not a legally recognisable ‘head of damage’ that can be compensated. However, in this post I focus on a particular feature of the Court’s analysis: the finding that the Commonwealth owed neither duty of care because decisions connected with the two argued duties involved matters of ‘core policy’.

Amy Tan

In July 2022, the 76th session of the United Nations General Assembly adopted a landmark resolution to recognise the right to a clean, healthy and sustainable environment by a vote of 161 in favour, 0 against and 8 abstentions. Whilst Australia voted in favour of the resolution, the Federal Government has thus far not indicated any desire to legislate this domestically.

In March 2023, the Australian Human Rights Commission ('the AHRC') launched a Position Paper outlining a proposed federal Human Rights Act. Notably, amid the 28 rights outlined was the right to a healthy environment. This Position Paper has since formed the basis of an inquiry into a Human Rights Framework for Australia by the Parliamentary Joint Committee on Human Rights (‘the PJCHR’), with the final report due in early 2024. This revived push is an exciting development which has come after a decades-long call from the legal and general community alike for more comprehensive statutory protection of human rights.