Climate change litigation in Australia will continue to expand and diversify

In 2024, more stakeholders will seek to use the courts as a method to seek climate justice.

The outcomes of these cases will have significant implications for the legal, political, and social responses to the climate crisis in Australia and beyond.

The corporate regulator has taken proactive steps, bringing penalty proceedings in relation to alleged ‘greenwashing’. Forthcoming judgments on the penalty proceedings will give guidance as to the cost of misleading the public with respect to ESG.

We anticipate that 2024 will bring more litigation and reflective attempts by businesses to mitigate exposure. In particular, we expect to see an increase in two areas. 

First, human rights-based claims that challenge government policies and decisions impacting the environment such as the complaint filed in 2020 by a Torres Strait Islander against the Australian government at the United Nations Human Rights Committee regarding its alleged failure to reduce greenhouse gas emissions and protect the islands from sea level rise – violating rights to culture, family, and life.

And second, corporate disclosure and management of climate-related risks and opportunities. Stakeholders expect more transparency and accountability from business on ESG.  Failure to provide this has led to claims by the regulator but also shareholders – such as in 2019 when Commonwealth Bank of Australia was sued for failing to adequately disclose its exposure to climate change risks in its annual report.  Additionally, the regulator has also warned that keeping quiet about ESG will also be considered “…another form of greenwashing.”

We expect that the courts may adopt a more progressive approach to interpreting and applying the law in light of societal expectations regarding the climate crisis, establishing precedent advancing the cause of climate justice.  We anticipate that the courts could be asked to determine broad questions including:

1. The existence and enforceability of a constitutional or common law right to a healthy environment;
2. The duty of care owed to future generations; and
3. The fiduciary obligations or duty of care owed by governments and corporations to protect the environment. 

This space is moving fast, and we anticipate more and more court action as the climate crises continues to escalate.