By: Amanda Beattie, James Clohesy and Zoe Jones

At a glance

• This is the second article in our series examining climate change litigation and forecasting emerging trends in the Australian market.
• Our first article surveyed the global litigation landscape and identified key themes that will shape future disputes.
• This article turns to Australia, outlining the historical context, recent developments, and the strategic trends shaping modern climate litigation.

Australia’s historical climate litigation landscape

Environmental and climate-related litigation has a long history in Australia. The “first wave” of climate cases emerged in the 1990s and early 2000s, primarily as administrative challenges under planning and environmental statutes.

A pivotal early example was Greenpeace Australia Ltd v Redbank Power Pty Ltd (NSWLEC, 1994), in which approval for a coal-fired power station was challenged on the basis that it would contribute to the greenhouse effect. Although unsuccessful, the case marked a turning point as one of the first decisions to recognise climate change as a relevant and legitimate planning consideration.

Subsequent cases such as Gray v Minister for Planning (NSWLEC, 2006) and Australian Conservation Foundation v Minister for the Environment (FCA, 2016) extended this line of authority, focusing on whether decision-makers properly assessed GHG emissions in project approvals.

Over time, these administrative law challenges contributed to a broader framework of climate accountability. Courts began engaging more directly with scientific causation, public interest, and intergenerational equity. However, claimants seeking to establish negligence-based duties faced persistent barriers, particularly when attempting to impose obligations on government actors.

A new wave: key trends in Australia’s climate-related litigation

The two recent Federal Court decisions of Pabai and Sharma highlight a shift away from traditional planning-based challenges towards more strategic climate litigation. These cases sought to extend common law negligence principles to government climate policy, with mixed results.

Minister for the Environment v Sharma (No 2) [2022] FCAFC 65

Sharma tested whether the Federal Minister for the Environment owed a duty of care in making climate-related decisions. In this matter, a group of children argued that approving an extension to a coal mine would foreseeably expose them to physical harm through climate impacts.

At first instance, Bromberg J accepted the existence of a duty of care. However, the Full Federal Court unanimously overturned this finding. Chief Justice Allsop held that decisions concerning national emissions and resource development are matters of high government policy, and judicial recognition of a climate duty would be inconsistent with constitutional principles and the statutory scheme. Further, the Full Court held that causation could not be established in a legally meaningful way.

You can read our report on the decision here.

Pabai v Commonwealth of Australia (No 2) [2025] FCA 796

In Pabai, Torres Strait Islander applicants brought a class action on behalf of the Guda Maluyligal Nation, alleging that the Commonwealth owed a duty of care to protect their communities and culture from the impacts of climate change.

Although Wigney J dismissed the claim, he made a number of significant factual findings:

1. Severe climate impacts: accepted evidence that the Torres Strait Islands are being “ravaged by human-induced climate change,” including coastal inundation, erosion, salination, and degradation of ecosystems such as wetlands and coral reefs.
2. Australia’s historical climate targets: found that past Commonwealth emissions targets (2015, 2020, 2021) lacked any “real or genuine consideration” of the best available climate science; and
3. Vulnerability of Torres Strait communities: recognised the existential threat posed by sea-level rise to land, culture, identity and Ailan Kastom.

These findings strongly reinforce the reality and severity of climate impacts on vulnerable communities.

Despite accepting the credibility and seriousness of the evidence, Wigney J concluded that Australian common law negligence is not currently capable of supporting the plaintiffs’ claim. His reasoning centred on:

1. No novel duty of care: The alleged duty would cut across “high or core government policy,” including emissions target-setting and adaptation funding. His Honour held that such matters are unsuited to judicial supervision through negligence.
2. Standard of care concerns: Even if a duty existed, it would be inappropriate to require that emissions targets be set solely on the basis of scientific evidence, because government decision-making necessarily involves balancing scientific, economic, social and political considerations.
3. Causation difficulties: Applying a pragmatic, “common sense” approach, his Honour held that the Commonwealth’s contribution to global emissions could not be shown to have caused a measurable harm to the Torres Strait Islands. The global, cumulative nature of climate change made it impossible to establish a sufficiently direct causal connection.
4. Non-recognition of cultural loss as compensable damage: The Court found that loss of fulfilment of Ailan Kastom is not currently recognised as compensable harm in negligence. Recognising such a new category of damage would require a substantial legal development “not open to a single judge”.

Wigney J summarised the position bluntly: the claim “failed essentially because the common law of negligence in Australia was not a suitable legal vehicle” for addressing harms caused by climate-related government policy. He emphasised that “the law in Australia as it currently stands provides no real or effective legal avenue” for communities to seek damages for harms arising from high-level government climate decisions. His Honour added that, unless the law is reformed (whether by the legislature or appellate courts) the primary avenues for change remain via public advocacy and “the ballot box”.

The reasoning reflected and reinforced the approach in Sharma. While distinguishing Pabai from Sharma on the basis that Sharma involved a specific statutory power, Wigney J endorsed the Full Court’s broader view that imposing a duty of care in the climate context is incompatible with the separation of powers.

Difference in approach overseas

As noted in our first article of this series, in Friends of the Earth Ltd v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin) (Friends of the Earth), the claimants challenged the UK Government’s Net Zero Strategy (NZS) and the Heat and Buildings Strategy, arguing that they failed to comply with the statutory requirements of the Climate Change Act 2008. The claimants contended that the strategies did not set out sufficient detail or credible policies to meet the UK’s legally binding carbon budgets.

The High Court found in favour of the claimants on key points, particularly that the Secretary of State had breached the Climate Change Act 2008 by failing to provide sufficient information to show how the policies would enable the carbon budgets to be met. The court ordered the UK Government to revise the NZS to include more information and to ensure compliance with the statutory requirements. However, this was not on the basis of any common law duty, or broad statutory duty to address the effects of climate change, but the specific duties imposed on the Secretary by sections 13 and 14 of the Climate Change Act 2008.

This contrasts with Pabai and Sharma, where plaintiffs relied on common law negligence, a much less receptive vehicle in Australia for climate claims. The UK example illustrates how statutory frameworks can create enforceable climate-related obligations in a way that Australian statutory duties and common law currently does not.

Developments since Pabai and Sharma

The Pabai decision was delivered in the same week as the ICJ’s July 2025 advisory opinion discussed in our first article. The ICJ opined that states are obliged under international law to prevent significant climate harm and to act with due diligence.

With the ICJ having held that states have a duty to prevent significant harm to the climate system and environment, and to act with due diligence, the ICJ opinion reframes climate inaction not just as a policy or moral failure, but as a potential breach of international law. Although not binding domestically, the ICJ’s reasoning challenges several assumptions that underpin Pabai and Sharma, including the notion that climate harms are too diffuse or political for legal scrutiny. The opinion may encourage Australian courts and governments to reconsider whether common law duties can evolve to reflect international norms, or whether statutory climate obligations should be enacted.

The Pabai decision has recently been appealed to the Full Court of the Federal Court, which was expected given the comments in the judgment. This will be one to watch in the Full Court next year.

Strategic litigation and the evolving risk landscape

The importance of Pabai and Sharma extends beyond their immediate outcomes. Both reflect a broader trend towards strategic climate litigation, being claims designed not only to obtain legal remedies but also to influence public debate, shape policy, and push legal boundaries. This refers to cases designed not only to achieve legal remedies but also to influence public discourse, shape policy, and test legal boundaries.

These strategic claims increasingly target corporate actors and professional service providers, particularly around misleading sustainability claims or emissions disclosures. As Wigney J observed in Pabai, the loss of fulfilment of Ailan Kastom (a traditional Torres Strait cultural practice) is not a recognised head of compensable loss. The inability of common law negligence to capture such cultural and intergenerational harms demonstrates both the limits and potential of strategic litigation. Whilst the current doctrine may resist expansion, persistent advocacy can drive legislative or jurisprudential change over time.

A recent example of strategic litigation in Australia is the case brought by the Australian Parents for Climate Action (AP4CA) against EnergyAustralia. The case was commenced in the Federal Court in 2023 with AP4CA alleging that EnergyAustralia’s Go Neutral carbon offset product was misleading. Statements in relation to the Go Neutral product made claims about its climate credentials and environmental impact and claimed to offer customers carbon neutral electricity.

AP4CA alleged that EnergyAustralia’s claims that customers could “go carbon neutral” by purchasing its product were misleading, as the company continued to operate coal-fired power stations and purchase carbon offsets of questionable quality, and the advertising implied a greater environmental benefit than was actually delivered. The matter was settled prior to the final hearing and EnergyAustralia issued a formal statement acknowledging that carbon offsetting is not the most effective way to assist customers to reduce their emissions and apologising for unclear marketing of the product. The product was also withdrawn from the market as a result.

These cases combined with global climate action trends may suggest that similar arguments may soon arise under different avenues such as the Corporations Act 2001 (Cth) or general law duties of care and diligence, especially as disclosure obligations tighten under the government’s proposed mandatory climate reporting framework.

This does not mean judicial review does not continue to represent a viable avenue for climate change issues. Most recently:

High Court to Consider Key Coal Mine Climate Impact Case

On 4 December 2025 the High Court of Australia granted special leave to appeal from a NSW Court of Appeal decision concerning MACH’s Energy’s proposed coal mine expansion in Mount Pleasant, near Muswellbrook NSW.¹ The Denman Aberdeen Muswellbrook Scone Healthy Environment Group (DAMSHEG) challenge to the Independent Planning Commission (IPC) approval of the expansion was heard by the NSW Land and Environment Court in August 2024, and was dismissed at first instance.²

On appeal, the NSW Court of Appeal held that the IPC had failed to consider the ‘likely impacts of the project, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality’, which is a mandatory obligation on the consent authority under section 4.15(1)(b) of the EP&A Act. MACH Energy has now been granted special leave to appeal from that decision. This appeal marks a significant opportunity for Australian precedent regarding the assessment of the impacts coal mining on climate change.

UN Seeks First-Ever Intervention in Australian Climate Case

In late October 2025, the Australian Conservation Foundation (ACF) commenced proceedings in the Federal Court in relation to the Minister for the Environment’s decision that projected emissions from the North Shelf gas project extension did not need to be assessed pursuant to the Environmental Protection and Biodiversity Conservation Act (EPBC). Of note, the Federal Court has received an application in these proceedings from the United Nations to intervene as amicus curiae in the proceedings, and make submissions regarding Australia’s international law obligations with respect to the environment and their relevance to the EPBC Act.

If the Court decides to give leave to the Special Rapporteur to intervene in these legal challenges as an amicus curiae, this will be the first occasion in Australian legal history that a United Nations Special Rapporteur has sought to and successfully intervened in an Australian proceeding.

Looking ahead

What we can take from this is that climate litigation in Australia is accelerating in complexity, scope, and strategic intent. Where early cases focused narrowly on planning approvals, modern claims increasingly engage questions of human rights, fiduciary obligations, and corporate disclosure. The Grantham Research Institute’s report notes that a broader definition of climate litigation may see an increase in the amount of climate change-based litigation before the courts, including from 164 to over 600 in regions such as Australia.³

The international landscape, and particularly the ICJ’s advisory opinion, the ECHR’s decisions, and the proliferation of US corporate accountability cases (as highlighted in our first article) provides a clear preview of where Australian litigation is likely headed. For governments, this means greater scrutiny of decision-making processes, particularly in environmental approvals and policy development. For the private sector, it means an expanded litigation risk profile, spanning directors’ duties, misleading conduct, disclosure accuracy, and supply-chain accountability.

In short, climate litigation is no longer a niche environmental concern, but a mainstream commercial and regulatory risk. In our next article in the series we will consider the impact of increased climate change litigation on government accountability and the scrutiny that governments are facing as a result of this litigation.

Key Contacts & Updates

Stay tuned for our future articles where we will take a deeper dive into Climate Litigation. If you have any questions or comments, please feel free to reach out to our authors.

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