The Australian government has no duty of care to protect young people and future generations from climate change. But ACT Independent Senator David Pocock has a bill that would require decision makers to consider the wellbeing of children and future generations when making decisions likely to contribute to climate change, including the exploration or extraction of fossil fuels.

Today, a public hearing will be held as part of an inquiry into Senator Pocock’s Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023, which he says has widespread support.

The bill seeks to add two conditions to decisions made under six existing pieces of legislation, including the Environmental Protection and Biodiversity Conservation Act 1999.

Where significant decisions were likely to directly or indirectly result in substantial greenhouse gas emissions, the decision maker would have to consider the likely impact of the emissions on the health and wellbeing of current and future Australian children, and consider their health and wellbeing as the paramount consideration. In the case of decisions involving the exploration or extraction of coal, oil or gas, the decision maker would be prevented from making decisions where the resulting greenhouse gas emissions were likely to pose a material risk of harm to the health and wellbeing of current and future Australian children.

“Climate change is having increasingly significant impacts in Australia, in the Pacific region and across the globe,” Senator Pocock said. “Records for the highest temperatures, most intense bushfires, most severe floods, and most costly natural disasters are being broken regularly. The damage being done to Australia’s economic prosperity, environment, and our health and wellbeing is severe and getting worse…

“The cost of decisions not to act, or to act slowly on climate change will be greater for today’s children and greater still for future generations. We know with certainty that the cost will be high…

“If we look after the health and wellbeing of children, both existing and future, we look after future generations. If we look after future generations, we look after humanity itself.”

Public hearing: ‘Support from every quarter of the community’

From 9am to 6pm today, the Senate Environment and Communications Legislation Committee will hold a public hearing as part of its inquiry into the bill. The Committee will hear from young people, the medical fraternity, academics, lawyers, the Chief Scientist, the Department of Climate Change, Energy, the Environment and Water (DCCEEW), and the Department of Health and Aged Care (DoHAC).

The Committee is due to hand down its report on 1 March.

“Everyone from doctors, to lawyers, scientists and academics as well as the young people whose futures this bill is designed to protect, have voiced their support,” Senator Pocock said. “Almost 400 individuals and organisations from the broadest possible cross section of the Australian community have lodged submissions in support of this bill.”

A petition in support of the bill has almost 11,000 signatures, and builds on the foundations laid by the Sharma v Minister for the Environment legal challenge. 

In 2021, eight young people filed a class action to block a coal mine, asserting that the minister had a duty of care for young people, and that digging up and burning coal would exacerbate climate change and harm young people; the judge ruled that the minister owed all Australian children a duty of care, but did not issue an injunction to halt the coal project.

However, the federal government overturned that decision in 2022. The lead litigant, Anjali Sharma, moved to Canberra last year, and asked Senator Pocock to intervene.

“Like so many of my friends, I’m increasingly scared about my future,” Ms Sharma said. “The past few years have seen temperatures that have broken records and climate fuelled natural disasters unfolding across the world. And all evidence shows us this will only get worse unless we act. We are at a crossroads in history. The government can either act in accordance with its duty to young people to deliver us a safe and liveable future, or set us on a path to climate catastrophe.”

“It is clear from the decision in Sharma v Minister for the Environment that we need a legal basis in our federal laws to enable governments to stop projects going ahead that will harm young people and future generations,” Senator Pocock said.

“This bill does that. It has support from every quarter of the community. We just need the federal government to have the courage to get behind it too.”

Submissions support bill

The Australian Youth Climate Coalition has supported the bill, arguing the voices of young people are being ignored and undervalued despite the group set to be the most impacted by climate change in the future.

“Young people’s hopes and concerns for climate action are not reflected in Australia’s current climate policies,” the coalition said in its submission to the inquiry.

“The government’s current policy failures on climate change are not just numbers and modelling on a page or computer screen, they are a terrifying potential future that young people must constantly confront.”

Seventeen-year-old Harper Forsythe wrote: “As a young person, I am seeing in real time how the destruction of our climate is putting my future at risk. The average politician will not live to see the consequences of their decisions, but by the time I am their age, Tuvalu and Kiribati will be underwater or uninhabitable.”

The Australian Medical Association and the Royal Australian College of General Practitioners support the consideration of health impacts on children.

But the medical association wanted the bill to be expanded “to recognise that climate change impacts all generations”.

“Climate change is a health emergency, with clear evidence indicating severe impacts for our people and communities now and into the future,” the AMA stated. “The AMA believes that government has a duty of care to protect future generations from the health impacts of climate change.”

Similarly, the Climate Action Nurses and Australian Primary Heath Care Nurses Association said the bill “holds immense significance for nursing within primary healthcare. Our profession recognizes the intrinsic connection between a changing climate and the health of our patients, particularly the most vulnerable among us, including children.”

The Australian Human Rights Commission also supported the principle of the bill, but agreed it should be broadened.

The bill aligned with the right to a safe environment and children’s rights, but the blanket use of “health and wellbeing” raised complications, it said.

“The bill limits decision makers’ considerations to children’s health and wellbeing, rather than requiring all children’s rights to be considered,” it said.

The bill could be enhanced by imposing a duty on people making significant decisions to take into account the impact of emissions on children’s rights, not just their health and wellbeing, the commission contended.

While other factors needed to be balanced while making decisions, “no other factor is to be treated as being inherently more significant than the best interests of the child”, it argued.

The ANU Institute for Climate, Energy and Disaster Solutions argued: “Part of the current government’s legacy should be to ensure there is a codified duty of care to protect current and future children from potential future attempts to subvert or undermine responsibility.”

The Australian government was firmly committed to responding to climate change and recognised the impact it had on Australians, including future generations, the Department of Climate Change said.

The government was developing plans to decarbonise six major sectors, including energy, industry, resources, and agriculture, and continuing to seek to put emissions reduction targets and policies into relevant legislation, the spokesperson said.

• With AAP