Targeting net zero

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Ensuring you are aware of an increasing climate change litigation risk and what to expect in light of local and global trends

Litigation is increasingly being used 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, claimants are testing numerous litigation pathways, including claims based in human rights, tort law, consumer laws, corporate disclosure laws and directors' duties. The appetite for commencing climate-related litigation has not abated through the COVID-19 pandemic, during which three new pieces of climate-related litigation have commenced in Australia.

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 providing new litigation pathways

The 2019/20 summer bushfires significantly increased 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

Although climate change-related nuisance/negligence claims are yet to be seen in Australia, civil claims in the United States, Germany and New Zealand in relation to climate change-related damage may 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 (does this mean after the bush fires?) commenced in Australian courts since the bushfires. 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.

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