‘Climate Overloading’ and Separation of Powers Arguments: Reflections on Pabai v Commonwealth of Australia

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’.