Key trends at a glance

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Litigation is increasingly being used to seek to compel government and business to take action on climate change and climate-related risks. It is now more important than ever for in-house counsel and sustainability teams to be aware of the growing risk of climate change litigation in Australia.

In Australia and abroad, climate litigation volumes are increasing, and claimants are testing numerous litigation pathways, including claims based in human rights, tort law, consumer laws and corporate disclosure laws.

The COVID-19 pandemic has done nothing to dampen this trend. In fact, this year alone, four new pieces of significant climate-related litigation have been commenced in Australia.

We have identified the following key local and global trends affecting the legal landscape in Australia:

Evolving judicial attitudes

Several recent climate change decisions demonstrate that portions of the judiciary are willing to take an active role in shaping how laws operate in light of a changing climate.

Claims based on human rights increasing

Human rights instruments are also emerging as a basis for climate litigation. Commonly litigated rights, such as the right to life, children's rights and the right to property mean that there will be a high degree of transferability in jurisprudence on this topic around the country and the world.

Environmental impacts opening up new litigation pathways

The 2019/20 summer bushfires have seen a significant increase in public concern about a changing climate. Physical environmental impacts are opening up new pathways to litigation and providing standing to domestic plaintiffs who have been affected by these events.

Claims based in civil law may provide an additional source of liability

A class action filed in the Federal Court of Australia against the Federal Minister for Environment asserting a novel duty of care suggests that plaintiffs are alive to this possibility. Civil claims in the United States, Germany and New Zealand in relation to climate change-related damage may further inspire plaintiffs to rely on similar causes of action here.

Consumer laws, corporate disclosure laws and directors' duties emerging as a potential new frontier

A number of cases alleging inadequate disclosure of climate-related risks have been commenced in Australian courts. Now is a good time for organisations to review compliance on these fronts, with a particular focus on governance frameworks and accurate disclosures.

Non-judicial dispute resolution processes

Beyond the court setting, the OECD National Contact Points complaints process has been gaining increased purchase as a forum for resolving climate change disputes. Australia has seen its first climate-related complaint taken to the Australian NCP for resolution.

We predict that the litigation landscape emerging in Australia will continue to be heavily shaped by these trends over the coming years. In navigating this landscape, together with the transition to a low carbon economy, organisations in both the public and private sectors are well-advised to undertake a holistic assessment of the drivers of climate litigation. Given that most material statutory duties are not overtly climate-related, it is important to review compliance with those duties afresh through the prism of climate-related physical and transition risk.

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