Climate Report 2025

AUSTRALIAN CLIMATE CHANGE LITIGATION ANNUAL REVIEW (2025)

Editor-in-Chief Tomo Boston KC Editors Lisa De Ferrari SC and Veronica Holt

AUSTRALIAN CLIMATE CHANGE LITIGATION ANNUAL REVIEW (2025) Editor-in-Chief Tomo Boston KC

PART I 4 Overview

8

Climate News in 2025

14

Discussion of Data

Editors

Lisa De Ferrari SC and Veronica Holt

PART II 18

Advisory Opinions and Australia’s Domestic System of Law

By Lisa de Ferrari SC

23

28

42

Coronial Inquests

Energy Regulation (Transmission Networks)

By Dr Ian Freckelton AO KC and Dr Gideon Boas

32

By Tom Clarke and Jessica Apel

46

Costs Orders

By Annabelle Ballard

Class Actions

By Eugenia Levine

25

Environment (Cth and State Acts)

36

By Zoe Maud SC and Sophie

Criminal Law

Molyneux

By Dr Julian Murphy

Construction Law and Renewables

By Martin Scott KC, Hamish McAvaney, Carla Aumann and James McNicol Smith

48

40

Freedom of Information Law And Climate Change Matters

Energy Law (Energy Regulators)

By Stephen Parmenter KC

By Dr Kylie Weston-

and William Stone

Scheuber

CONTRIBUTORS We wish to acknowledge the work of each of the barristers who have contributed their time, energy and expertise in bringing this Review to life. Without their contributions it would not have been possible: » Class Actions (Eugenia Levine); » Construction Law and Renewables (Martin Scott KC/Hamish McAvaney/ Carla Aumann/James McNicol Smith); » Coronial Inquests (Dr Ian Freckelton AO KC/Dr Gideon Boas); » Costs Orders (Annabelle Ballard); » Criminal Law (Dr Julian Murphy); » Energy Law (Energy Regulators) (Stephen Parmenter KC/William Stone); » Energy Regulation (Tom Clarke/Jessica Apel); » Environment (Commonwealth and State Acts) (Zoe Maud SC/Sophie Molyneux);

» FOI and transparency in climate change matters (Dr Kylie Weston-Scheuber); » Health Law & Personal Injuries (Dr Ian Freckelton AO KC); » Human Rights (Emrys Nekvapil SC/ Selena Bateman); » Insolvency (Stewart Maiden KC/ Panagiota Pisani); » Insurance Law (Dr Andrew Hanak KC/ Veronica Holt); » International Law (Dr Daye Gang); » Intellectual Property Law (Craig Smith SC); » Investment Arbitration and Climate Disputes (Tomo Boston KC); » Land Use Law (Fiona McLeod AO SC);

» Law Reform (EPBC Act) (Suganya Pathanjalimanoharar ); » Planning (Victoria) (Susan Brennan SC); » Regulatory (Australian Competition and Consumer Commission) (Dr Oren Bigos KC/ Rebecca Kelly); » Regulatory (Australian Securities and Investments Commission) (Dr Laura Schuijers); » Shipping Law (Matthew Harvey KC/ Daye Gang);

» Superannuation (Nawaar Hassan); » Taxation Law (Mr Andrew de Wijn SC/ Mr Edward Moore); and » Workplace Law (Joel Fetter/Jim Hartley).

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Health Law and Personal Injuries

By Dr Ian Freckelton AO KC

58

Human Rights

By Emrys Nekvapil SC and Selena Bateman

62

Insolvency

By Stewart Maiden KC and Panagiota Pisani

70

82

By Dr Daye Gang

By Suganya

International Law

Reform of EPBC Act

74

Pathanjalimanoharar

86

Intellectual Property Law

Planning Law (Victoria)

By Craig Smith SC

76

By Susan Brennan SC

90

Investment Arbitration and Climate Disputes

Regulatory (Australian Competition and Consumer Commission)

By Tomo Boston KC

66

80

By Dr Andrew Hanak

By Fiona McLeod AO SC

Insurance Law KC and Veronica Holt

Land Use Law and Emily Morison

By Oren Bigos KC and Rebecca Kelly

94

Regulatory (Australian Securities and Investments Commission)

By Dr Laura Schuijers

98

Shipping Law

By Matthew Harvey KC and Dr Daye Gang

100

PART III 108

Acknowledgements Methodology Purpose

109

Definition of legal practice areas

111

List of cases

Superannuation Law

By Nawaar Hassan

104

Workplace Law

By Joel Fetter and Jim Hartley

SPONSORS We wish to acknowledge the contributions of CommBar and our clerks List A, List G, Green’s List, Foley’s List, Dever’s List, and Svenson’s List. Without their valuable contributions this project would not have occurred.

Commercial Bar Association of Victoria

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PART I | OVERVIEW

T

HE FOLLOWING OUTLINES some of the

Australian insolvency law traditionally prioritises

principal themes emerging in 2025.

financial considerations, leaving non-financial risks—

Greenwashing remains a key enforcement priority for the Australian Competition and

Consumer Commission (ACCC), which has focused on misleading environmental and sustainability claims since 2022. In 2025, the ACCC expanded its efforts through litigation, guidance, and authorisations for sustainability

such as environmental impacts—largely outside its core framework. However, intersections arise where statutory obligations persist during restructuring or liquidation, compelling insolvency practitioners to address environmental compliance (See paper entitled “Insolvency” in Part II).

collaborations. Businesses face heightened legal and

The Commonwealth’s revised 2035 emissions target

reputational risks, reinforcing the need for robust

and release of the Electricity and Energy Sector Plan

compliance frameworks and transparent sustainability

signal forthcoming regulatory changes, including draft

practices (See paper entitled “Regulatory (Australian

legislation expected in early 2026. Increased regulation

Competition and Consumer Commission)” in Part II).

of carbon-intensive activities could spur further NGO

ASIC’s enforcement activity on climate-related issues underscores ASIC’s dual focus on climate transition

challenges (See paper entitled “Energy Law (Energy Regulators)” in Part II).

Coroners, empowered by statute to investigate deaths,

reflect growing scrutiny of climate-related financial

fires, explosions, and disasters, increasingly play a critical

disclosures, ethical investment claims, and insurance

role in identifying climate-related risks and recommending

practices. Market integrity enforcement in energy

preventative measures. This function is likely to expand

trading further signals ASIC’s commitment to ensuring

as correlations between climate change and mortality

transparency during Australia’s clean energy transition

become clearer. As climate risks intensify, coroners’ findings

(See paper entitled “Regulatory (Australian Securities

will remain pivotal in informing systemic reforms and

and Investments Commission)” in Part II).

safeguarding vulnerable communities (See paper entitled

Although advisory opinions lack binding force, they carry

“Coronial Inquests” in Part II).

persuasive authority and clarify treaty interpretation for

Climate change is emerging as a significant driver of

Australia. Collectively, the three recent advisory opinions

litigation in health law and personal injury, including

(ITLOS, IACHR, and ICJ) converge on five principles

wrongful death claims. International decisions

(See papers entitled “Advisory Opinions and Australia’s

underscore the potential for health-related climate

domestic system of law” and “International Law” in Part

litigation to expand, leveraging human rights frameworks

II):

and tort principles to compel state action. While

1. states must prevent significant harm to the climate system; 2. continued support for fossil fuel production is incompatible with obligations to prevent harm; 3. failure to meet emissions commitments may constitute an internationally wrongful act; 4. climate obligations intersect with rights to life, health, and a sustainable environment; and 5. states must regulate corporate activities impacting climate and environmental sustainability.

Further, these opinions reinforce the global “rights trend” in climate litigation, grounding mitigation and adaptation obligations in human rights law.

doctrinal and procedural hurdles remain, particularly in jurisdictions resistant to judicial intervention in climate policy, the trajectory suggests increasing reliance on rights-based claims to address health harms linked to climate change (See paper entitled “Health Law and Personal Injuries” in Part II).

Climate change continues to pose systemic challenges for the insurance industry, including escalating physical risks, underwriting complexities, and concerns over affordability and availability of coverage. Extreme weather events remain the most significant source of insured losses. Australia ranks among the highest globally for per capita disaster-related losses. For the

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integrity and consumer protection. ASIC’s actions

2024–2025 financial year, insured losses totalled $1.97

administrative and planning law will increasingly serve

billion from 154,100 claims—a 25 per cent reduction

as the battleground for climate accountability. Bespoke

from the prior year, though claim volumes remain high.

legislative reforms and international norms will continue

Legal challenges are likely to intensify around pricing,

to shape future litigation and compliance strategies (See

disclosure, and liability as climate impacts accelerate (See

paper entitled “Land Use Law” in Part II).

paper entitled “Insurance Law” in Part II).

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duties in superannuation are emerging. Superannuation

emissions-reducing technologies, as benefits are not fully

trustees must act in members’ best financial interests.

internalised by businesses. The convergence of patent

Overseas cases suggest climate risks may inform

growth, government funding, and industry innovation

investment strategy, but trustees must maintain an

signals an evolving IP landscape in climate technology.

objective financial basis for their decisions. Wholesale

While patents can drive technological progress, they also

divestment or climate-driven marketing without sound

introduce competitive and legal risks (See paper entitled

financial justification risks breaching fiduciary duties (See

“Intellectual Property Law” in Part II).

paper entitled “Superannuation” in Part II).

The evolving jurisprudence on costs in climate litigation

Recent litigation under environmental legislation has

underscores competing imperatives: ensuring access to

continued to focus on the climate impacts of mining and

justice for public interest litigants while maintaining fairness

energy projects, with particular scrutiny on “Scope 3”

to successful parties. Greater clarity is needed to reconcile

greenhouse gas (GHG) emissions. These emissions often

these objectives and address the growing use of non-party

represent the largest share of a project’s GHG footprint

costs orders and interlocutory cost-capping mechanisms

(See paper entitled “Environment (Commonwealth and

(See paper entitled “Costs Orders” in Part II).

State Acts)” in Part II).

While negligence-based climate class actions face

The federal government passed seven bills to overhaul

doctrinal barriers, the acceptance of scientific evidence

the Environment Protection and Biodiversity Conservation

and expansion into statutory claims signal future

Act 1999 (Cth), aiming to strengthen environmental

opportunities. Class actions may increasingly serve as

protections and improve decision-making transparency.

tools for strategic litigation aimed at shaping corporate

However, critics argue the reforms fall short by not

and governmental responses to climate risk, even where

mandating consideration of climate harm in all approvals

compensable loss is minimal or absent (See paper

(See paper entitled “Law Reform (EPBC Act)” in Part II).

entitled “Class Actions” in Part II).

Employers owe statutory and common law duties

Climate-related criminal law developments in 2025

to ensure worker health and safety. Climate change

continued to focus on prosecutions of environmental

amplifies existing hazards—particularly heat—and

protesters, with most matters resolved summarily in

introduces new risks such as flooding and severe storms.

Magistrates’ Courts. Emerging trends reveal two key

Employers must take reasonable steps to mitigate

themes: challenges to the validity of laws authorising

foreseeable harm, which may require policy changes,

protest restrictions and attempts to advance novel

equipment upgrades, or adjustments to remote work

defences (sudden or extraordinary emergency) (See

arrangements. These measures can trigger consultation

paper entitled “Criminal Law” in Part II).

obligations under work health and safety legislation and

Climate change is reshaping risk profiles for construction and engineering projects. While litigation has not yet materialised, rising regulatory complexity, extreme weather impacts, and bespoke contractual drafting signal future disputes. Legal practitioners should anticipate increased reliance on climate science in delay claims and greater scrutiny of contractual risk allocation (See paper entitled “Construction Law and Renewables” in Part II).

Climate considerations are now integral to landuse regulation, with statutory frameworks and judicial reasoning evolving to address emissions and resilience. While negligence remains a limited pathway,

Tensions between climate considerations and fiduciary

Patents alone cannot fully incentivise investment in

enterprise agreements. Climate change may reshape workplace arrangements and bargaining priorities. Rising costs of maintaining safe workplaces could prompt employers to reduce office space or mandate remote work, while employees may seek protections against heat or poor air quality. Such changes could lead to disputes over cost allocation, award variations, or enterprise bargaining (See paper entitled “Workplace Law” in Part II).

Shipping transports approximately 80 per cent of global goods by weight—12 billion tonnes in 2024—and accounts for around 11 per cent of transport-related

greenhouse gas (GHG) emissions. While shipping

carve-outs for emissions reduction or ESG compliance

remains the most energy-efficient mode of freight

leading to two phenomena, “regulatory chill” and

transport, the International Maritime Organization

“resource nationalism” (See paper entitled “Investment

(IMO) has advanced significant climate measures in

Arbitration and Climate Disputes” in Part II).

2025, approving draft regulations under its proposed Net-Zero Framework. This framework, if adopted, will mandate emissions limits and GHG pricing across the global shipping sector, aiming for net zero by 2050. In 2024, the International Tribunal for the Law of the Sea (ITLOS) confirmed that anthropogenic GHG emissions constitute “pollution of the marine environment” under the United Nations Convention of the Law of the Sea

Climate change considerations are now embedded in Victoria’s planning framework, imposing significant obligations on planning authorities. Under recent reforms, authorities must have regard to emissions reduction targets and climate-related risks when preparing planning scheme amendments (See paper entitled “Planning (Victoria)” in Part II).

(UNCLOS), reinforcing states’ obligations to mitigate

The rapid expansion of electricity transmission networks

climate impacts. This interpretation aligns with proposed

is essential for Australia’s clean energy transition, yet it

amendments under the International Convention for

is fraught with complex legal and regulatory challenges.

the Prevention of Pollution from Ships (MARPOL) and

Recent cases, including judicial reviews and project

may embolden claims against shipping companies and

disputes, highlight the fragmented regulatory landscape and

states for failing to reduce emissions (See paper entitled

the potential for litigation. Regulatory interventions reveal

“Shipping Law” in Part II).

ongoing valuation and pricing controversies. Additionally,

Freedom of Information requests play a significant role in accessing documents underpinning government decisions on climate-related matters. Common grounds for refusal include exemptions under the Freedom of

increasing extreme weather events have exposed network resilience issues, prompting regulatory investigations and parliamentary inquiries (See paper entitled “Energy Law (Electricity Transmission)” in Part II).

Recent international and domestic legal developments

privilege, commercial interests, personal privacy, Cabinet

have strengthened the intersection of human rights and

documents, and deliberative processes. Data reviewed by

climate change. The International Court of Justice’s

the Australian Conservation Foundation in 2021 revealed

Advisory Opinion clarified that States must protect

increasing refusal rates and reliance on exemptions, with

the climate system to ensure effective enjoyment of

61 per cent of decisions since 2015 substituted on review

human rights, recognizing a clean, healthy environment

by the Information Commissioner—highlighting FOI as

as foundational to rights to life and health. Australian

a fertile area for litigation (See paper entitled “FOI and

jurisdictions, notably Queensland and the ACT, have

transparency in climate change matters” in Part II).

advanced substantive and procedural rights in climate

Climate-related disputes in arbitration remain opaque due to confidentiality, limiting public insight and advocacy. Arbitration offers advantages—flexible procedures, expert arbitrators, and enforceable awards— but faces constraints: public law disputes are often unsuitable, public interest groups lack standing, and limited publication of awards restricts transparency.

Investment treaty arbitration is emerging as a key forum for climate-related disputes. These treaties grant foreign investors protections such as fair and equitable treatment, enabling claims against states when climate measures impact investments. Current trends reveal growing tension between states’ climate obligations and investor rights, particularly under older treaties lacking

litigation, including the ACT’s statutory right to a healthy environment. However, federal and State level human rights based causes of action remain limited, constraining broader domestic impact (See paper entitled “Human Rights” in Part II).

What’s New We have added nine new practice areas to last year’s version of the Review: Advisory Opinions, Coronial Inquests, Costs Orders, Energy Regulation, Health Law and Personal Injuries, Freedom of Information, Investment Arbitration and Climate Disputes, Reform of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), and Superannuation Law.

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Information Act 1982 (Cth), such as legal professional

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CLIMATE NEWS IN 2025

C

LIMATE ISSUES REMAIN central across

The NSW Law Society has released climate change

environmental, legal, social, and business

guidance for practitioners.5 The Senate’s greenwashing

sectors. Here are some highlights.

inquiry is now due to report by 25 June 2026.6 The

The Environment Protection Reform Bill

2025, which passed on 28 November 2025, proposes major amendments to the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The enforceable right to a clean, healthy, and sustainable environment under the Human Rights Act 2024 (ACT) came into force—the only such right in Australia. The legislation currently prohibits commencing proceedings claiming that a public authority acted incompatibility with, or failed to give proper consideration to the right.1 South

Australian Sustainable Finance Taxonomy, developed by the Australian Sustainable Finance Institute with the Federal Government, offers a draft voluntary framework for classifying sustainable finance.7 Achieving net zero by 2050 will require an estimated $7 trillion in investment in Australia over the next decade.8 The big four banks have reduced lending to oil, gas, and thermal coal from $43.4 billion in 2022 to $34 billion in 2024, yet sustainable lending still accounts for less than 2 per cent of their portfolios.9 Australia’s latest Nationally Determined Contribution

establishing a general duty not to harm biodiversity2.

sets a target to reduce greenhouse gas emissions by

Mandatory climate disclosure requirements under

62–70 per cent below 2005 levels by 2035. Interim

the Corporations Act 2001 (Cth) now apply to Group

targets have faced criticism. For example, the Northern

1 entities. The Australian Securities & Investments

Territory government has abandoned its 43 per cent

Commission released Regulatory Guide 280

interim target.10 The Federal Coalition has gone further,

(Sustainability Reporting) for entities required to comply

announcing on 13 November 2025 that it will remove the

with the mandatory climate disclosure requirements3.

current government's interim and net zero targets from

In Victoria, planning authorities are now required to

the Climate Change Act 2022.11

consider Ministerial Direction No. 22—Climate Change Consideration, introduced on 11 September 2025.

This direction mandates that planning authorities take emissions reduction targets into account. The Australian

Australia’s domestic emissions increased by 0.05 per cent from 2023 to 2024, due, in part, to a rise in fossil fuel power plant emissions for the first time in a decade.12

Association of National Advertisers’ Environmental

Ten young Australians were appointed to the Youth

Claims Code came into effect. It provides guidance on

Advisory Council on International Climate Change,

environmental claims in advertising.4

providing a platform for youth perspectives to inform Australia’s international climate negotiations.13

1.

2.

3.

4.

5.

ss 40C(8)- Human Rights Act 2024 (ACT). s.11 Biodiversity Act 2025 (SA).

Regulatory Guide RG 280 Sustainability reporting.

Environmental Claims Code – AANA. LS4037_PAP_ClimateChng-PracGuide2024-Publication-Only_2025-10-02.pdf; LS4037_PAP_ClimateChng-PracGuide2024AnnexB_2025-08-26.pdf 6. Greenwashing – Parliament of Australia.

7.

Australian+Sustainable+Finance+Taxonomy+-+Version+1.pdf 8. Activists pressure Australia’s big banks despite $10 billion cut in fossil fuel lending.

9.

Activists pressure Australia’s big banks despite $10 billion cut in fossil fuel lending.

10. NT government backflips on 2030 emissions reduction target promise - ABC News.

11. "Affordable and Responsible: The Liberal Plan for Affordable Energy and Lower Emissions" dated 13 Nov 2025.

12. National Greenhouse Gas Inventory Quarterly Update: December 2024 - DCCEEW. 13. Youth Advisory Council on International Climate Change - DCCEEW...

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Australia has enacted the Biodiversity Act 2025 (SA),

The Federal Government’s Australian National Climate

30 per cent of Australia’s oceans as highly protected by

Risk Assessment identifies current and future climate

2030.18 Similarly, the governments of Solomon Islands

risks across the country. The report finds, with very

and Vanuatu intend to establish the Melanesian Ocean

high confidence, that changes in Australia’s climate

Reserve, safeguarding six million square kilometres

will not occur gradually or smoothly. Instead, reaching

of ancestral waters.19 In contrast, Nauru is progressing

climate and ecological tipping points is likely to cause

towards deep-sea mineral development in the Clarion

abrupt shifts. As climate hazards become more frequent

Clipperton Zone,20 highlighting the competing priorities

and severe, Australia is expected to experience more

faced by countries—especially in the Global South—

compounding, cascading, and concurrent events—such

during the transition to net zero.

as heavy rainfall and flooding after cyclones, or increased air pollution from bushfires during heatwaves.14 This assessment coincides with reports of widespread coral bleaching at the World Heritage-listed Ningaloo Reef.15

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Oil and gas projects continued to receive approval in 2025. The extension of Woodside’s North West Shelf Project to 2070 has drawn significant attention, with activists labelling it a “carbon bomb” due to projected

The Insurance Council of Australia’s Insurance

emissions equivalent to 33 years of Australia’s total

Catastrophe Resilience Report 2024–2025 highlights the

emissions. The project approval has led to three court

growing exposure to extreme weather risks. A warming

challenges and an application by the United Nations

climate is expanding the reach of disasters, with cyclones

Special Rapporteur on the human right to a clean,

and severe storms now affecting areas previously

healthy and sustainable environment, Ms Astrid Puentes

considered low risk. Losses from extreme weather events

Riaño, to intervene in the proceedings as amicus curiae.21

are a long-term trend, with Australia ranking at least

In a separate proceeding, and earlier this year, nine young

second highest globally for economic and insured losses

Australians have filed a human rights complaint with the

per capita from 1980 to 2020. Repeated extreme weather

United Nations’s Special Rapporteur on Climate Change

events are compounding impacts, leaving communities

against the Australian government for failing to protect

with insufficient time to recover or invest in resilient

their human rights to life, health and culture and ensure a

infrastructure. The protection gap—the difference

safe future in the climate crisis.22

between total economic losses and those covered by insurance—continues to leave millions of Australians vulnerable when disasters occur.16

Pacific nations, including Vanuatu, have expressed concerns, warning that the North West Shelf approval threatens their survival.23 This may have affected

The Climate Change Authority’s report, Home safe:

Australia’s unsuccessful bid to host the 31st Conference of

National leadership in adapting to a changing climate, warns

the Parties. The 30th Conference of the Parties (COP30)

that without action, climate impacts could cost Australia

was held in Belém, Brazil in November. It spotlighted the

approximately $8.7 billion annually by 2050. Beyond

race to keep warming below 1.5 degrees Celsius, unveiled

financial losses, climate hazards threaten wellbeing,

new national climate plans, and assessed progress on

health, and safety, with disasters causing long-term

critical finance commitments made at COP29.24

and potentially lifelong consequences. Reducing GHG emissions is essential to limit future climate risks.17

The Australia-Tuvalu Falepili Union Treaty establishes a climate visa, allowing Tuvaluan citizens to obtain

Australia has signed the High Seas Treaty, aiming

permanent residency in Australia.25 This agreement

to conserve and sustainably use marine biodiversity

responds to the urgent threat Tuvalu faces from rising

in areas beyond national jurisdiction. The Federal

sea levels due to climate change. The Federal Court

Government has also announced plans to designate

handed down its decision in Pabai v The Commonwealth,

14. National Climate Risk Assessment | Australian Climate Service Website 15. Scientists say ‘devastating’ Ningaloo Reef coral bleaching puts ancient colonies at risk - ABC News 16. 21340_ICA_CAT-Report_2025_Final-spreads.pdf 17. Home safe: National leadership in adapting to a changing climate | Climate Change Authority.

18. Achieving 30 by 30 - DCCEEW. 19. Ocean is our Home | Melanesian Ocean Reserve.

20. Nauru could earn millions after backing US deep sea mining pathway | RNZ News.

21. UN makes unprecedented bid to intervene in North West Shelf court cases - Environmental Justice Australia.

22. 2025-04-01-Complaint-to-UN-Special-Rapporteur-on-Climate-Change-on-behalf-of-9-young- Australians.pdf 23. Labor green-lights Woodside carbon bomb, despite climate concerns and Pacific plea.

24. COP30 | UN News.

25. Australia-Tuvalu Falepili Union treaty | Australian Government Department of Foreign Affairs and Trade.

rejecting a duty of care on the Commonwealth to protect

to be truthful and properly substantiated) by Ad

the Torres Strait Islands from the impacts of rising sea

Standards over claims that its methane gas is “clean.”

levels.26 An appeal has since been filed.

Ad Standards Panel found the term “clean gas” lacked

Pacific leaders signed a treaty to formally establish the Pacific Resilience Facility (PRF), a new fund designed to smooth the region’s access to climate finance.27 Local opposition to renewable energy projects is increasing, resulting in delays, downsizing, or cancellations that could jeopardize Australia’s goal of 82 per cent renewable energy generation by 2030.

For example, the Moonlight Range Wind Farm in Queensland and a major solar and battery hybrid project near Yass were both cancelled after extensive planning.28 In September 2025, Amendment VC268 updated the Victoria Planning Provisions to implement the Victorian Transmission Plan 2025, identifying land suitable for renewable energy infrastructure within designated renewable energy zones.

definition and could lead consumers to believe gas produces no emissions or environmental harm.30 A LinkedIn advertisement from Australian Gas Networks features a cartoon image of a gas cooktop and the words: “In Victoria, gas cooktops have the lowest annual energy cost ($18) and lowest annual emissions (32kg CO2-e). In contrast, electric coil or plate cooktops have the highest energy cost ($47) and emissions (146 kg CO2-e). Gas stovetop lowest cost and lowest emissions.” Ad Standards ruled the advertisement was misleading because it was not transparent in the way data was calculated, and the environmental claims were not substantiated or verifiable.31

Activism Shareholder activism through climate-related resolutions continued in 2025. For example, a resolution has been

states’ obligations regarding climate change. On 29 May,

submitted for National Australia Bank’s 12 December

the Inter-American Court of Human Rights issued its

2025 AGM, requesting disclosure of its lending exposure

opinion on states’ responsibilities in addressing the

to clients involved in deforestation and the development

climate emergency within the framework of international

of a strategy to cease financing such activities.32 A similar

human rights law. Subsequently, on 23 July, the

resolution will be put to shareholders at the annual

International Court of Justice delivered its opinion on

general meeting of the Australian and New Zealand Bank

states’ obligations in relation to climate change. These

(ANZ).33 In addition, a shareholders resolution seeking

opinions have the potential to influence the development

an amendment of the ANZ constitution to facilitate an

of our domestic climate change laws.

ordinary as opposed to a special resolution for climate

Ad Standards The Environmental Claims Code was adopted by the Australian Association of National Advertisers as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers apply rigorous standards when making environmental claims and to increase public trust and confidence in communications of those claims.29 Throughout 2025, there were a number of organisations that were found to have breached the Code.

An advertisement by Hancock Prospecting was ruled misleading (AANA Environmental Code for failing

action related proposals will be put to shareholders at the annual general meeting.34 Australasian Centre for Corporate Responsibility (ACCR) has submitted members’ statements to Woodside Energy Group Ltd, opposing the re-election of all directors at the upcoming annual general meeting.

The statements hold the entire Board collectively responsible for Woodside’s poor shareholder returns and ongoing failure to address climate risk.35 Activist shareholders have lodged protest resolutions alleging Westpac has ignored Scope 3 emissions because the bank judged more than 90 per cent of its customers as having credible, Paris-aligned strategies. Westpac,

26. Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 (15 July 2025).

27. Vanuatu warns Australia that expanding Woodside’s North West Shelf gas project could breach international ruling - ABC News.

28. The clean energy transition won’t succeed without community trust. And we’re running out of it.

29. Environmental Claims Code – AANA. 30. 0009-25.pdf 31. 0058-25.pdf 32. NAB to face Australia’s first… | Australian Conservation Foundation.

33. ANZ Shareholder Resolution | Australian Conservation Foundation.

34. ANZ Shareholder Resolution | Australian Conservation Foundation.

35. ACCR recommends vote against Woodside directors: significant underperformance - ACCR.

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In 2025, two significant advisory opinions clarified

PACIFIC LEADERS SIGNED A TREATY TO FORMALLY ESTABLISH THE PACIFIC RESILIENCE FACILITY (PRF), A NEW FUND DESIGNED TO SMOOTH THE REGION’S ACCESS TO CLIMATE FINANCE.

which lends to major gas producers such as Woodside

referenced in Woodside’s 2023 announcement of its

and Santos Limited, recently revised its global warming

final investment decision to develop the Trion oil field.

target from 1.5°C to well below 2°C.36

Market Forces’ analysis of the underlying data indicates

ACCR has called on Glencore to appoint at least one director with expertise in climate reporting and energy transition, aiming to strengthen governance. This

that there are far fewer IPCC scenarios aligned with 1.5°C where additional oil supply might be required, than Woodside suggested.39 Climate Integrity has lodged a complaint with the ACCC

for ACCR, reviewed the board’s skills and experience

requesting an investigation into whether Australians

related to climate risk and the energy transition.37

for Natural Gas Pty Ltd (AfNG) made misleading or

Market Forces filed Macquarie’s first climate-related shareholder resolution, which gained substantial backing with 35 per cent of votes in favour. The resolution urged Macquarie to align its fossil fuel financing with its climate commitments. A key point of discussion was Macquarie’s involvement in the Northern Territory’s Beetaloo Basin, one of Australia’s largest new gas fracking projects.38

deceptive representations in its “Australia, It’s Time to Turn to Gas” campaign, in potential breach of section 18 of the Australian Consumer Law. AfNG states its purpose is to educate the public and advocate for unlocking Australia’s untapped natural gas reserves. The company was established by the Managing Director and CEO of Tamboran Resources Corporation, which holds interests in fracking operations in the Beetaloo/McArthur Basin.40

Complaints To Regulators

Climate Integrity has filed a complaint with the ACCC

Market Forces has lodged a complaint with ASIC

seeking an investigation into whether statements such

regarding Woodside Energy’s use of climate scenarios

as “Coal is needed for energy security,” made by NSW

to justify its oil expansion plans. The complaint

Mining in advertisements published in @The Coal Face

alleges that Woodside may have misled the market by

newspaper and on its “Mining Responsibly” website,

misrepresenting Intergovernmental Panel on Climate

breached the misleading or deceptive conduct provisions

Change (IPCC) 1.5°C-aligned scenarios, significantly

of the Australian Consumer Law.41

overstating future demand for new oil supply in modelling presented to investors. This modelling was

36. https://www.afr.com/companies/financial-services/westpac-under-fire-for-going-too-easy-on-big-polluters-climateplans-202511 37. https://www.capitalbrief.com/briefing/glencore-urged-to-appoint-climate-specialist-director-d9b1e070-4b9d-4f52-b573abf59b340759/ 38. Macquarie receives shareholder revolt on climate at 2025 AGM - Market Forces.

39. Market Forces LinkedIn post of 5 March 2025.

40. FINAL_complaint_to_ACCC_re_AFNG.pdf 41. Ltr_to_ACCC_re_NSW_Mining__Redacted.pdf

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | C limate N e w s I n 2 0 2 5

recommendation, based on an OpenEngagement report

13

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14

DISCUSSION OF DATA Cases per jurisdiction

Types of claims

Thirty-five climate litigation cases were identified as having been

In 2025, most domestic cases (49 per cent, 17 cases) were

on foot in 2025. In 2024, that figure was 43, representing a 19

administrative in nature—either judicial or merits review—up

per cent (eight cases) drop in cases from 2024. A further six cases

from 40 per cent (17 cases) in 2024. Greenwashing claims

were reported in last year’s review and were resolved in 2025.

under the misleading or deceptive conduct provisions of the Cases per jurisdiction Corporations Act 2001 (Cth) and the Australian Securities and

Those six cases have not been included in the 2025 count.

About 71 per cent of cases (25 cases) were commenced in our domestic Courts and Tribunals, with the remaining 29 per cent of cases (10) commenced in international tribunals. In 2024, those figures were 93 per cent (40 cases) and 7 per cent (three cases), respectively.

Cas

12

15

Investments Commission Act 2001 (Cth) formed the next largest category at 11 per cent of cases (four cases), down from 14 per 10

12

cent (six cases) last year. Criminal proceedings against climate 8 protesters followed at 9 per cent (three cases), also down

9

from 14 per cent (six cases) in 2024. One negligence case was 6

recorded, consistent with last year.

Approximately 34 per cent of domestic court matters (12 cases) were initiated under Federal jurisdiction-Federal Court of Australia (11 cases) and the Administrative Review Tribunal

UN

Int'l Trib

TAS

SA

WA

NT

ACT

AusNCP

Qld

of0cases (eight cases), up from 5 per cent (two cases) in 2024.

NSW

to the Minister.

3

2

international investment treaties, accounting for 23 per cent Vic

the Queensland Land Court’s role in recommending approvals

an Australian connection were brought under various

Cth

(five cases), likely reflecting increased mining activity and

15

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 24 | D I S C USS I O N O F DATA

(one case). Queensland accounted for 14 per cent of cases

6

4 predominant international climate change cases with The

As in the previous year, one case was filed with the OECD National Contact Point. One case was also filed with the UN Special Rapporteur on the Promotion and Protection of

New South Wales (Court of Appeal and Supreme Court)

Human Rights.

Claim Types

accounted for 6 per cent of cases (two cases). The Supreme

20

Courts of Tasmania, Victoria, and Western Australia each recorded 3 per cent of cases (one each). While there were no cases in Tasmania last year, 2025 saw an increase to 6 per cent

15

(two cases) across the Supreme Court and Magistrates’ Court.

As in the previous year, South Australia reported no cases. The

10

ACT recorded one case last year but none this year.

Cases per jurisdiction

Cases per Industry

12

15

5

10

12 UN

Int'l Ag

OECD

Tort

9

Crime

C’wealth

6

Admin

0

8

6

10 8 6 4 2

Retail

Shipping

Elec.

Fin. Prod.

Oil & Gas

Mine

0

UN

Int'l Trib

TAS

SA

WA

NT

ACT

AusNCP

Qld

NSW

Vic

Cth

PHOTO CREDIT: STOCK

Claim Types

Cases per legal practice areas

Typ

8

10

7 8

6 15

12

3

2

20

Typ

0

4

0

0

5

Types of plaintiffs 12

6

12

15

10

12

8 9 6 6 4

15

Law.

per cent (six cases), down from 21 per cent (nine cases) last

Retail

Energy Regulation, Health and Personal Injuries, or Workplace

19 per cent (eight cases) in 2024. Oil and Gas followed at 17

Shipping

cases were identified in the practice areas of Coronial Inquests,

Elec.

Intellectual Property, Claim Types Shipping, or Taxation. Similarly, among the nine20 new practice areas added to this year’s Review, no

Fin. Prod.

areas of Construction and Renewables, Insolvency, Insurance,

Oil & Gas

In 2025, as in 2024, no cases were identified in the practice

Mine

UN

Int'l Trib

TAS

SA

WA

NT

ACT

AusNCP

0 of cases (14 cases), a sharp rise from representing 40 per cent

Qld

The Mining Industry was the most litigated sector in 2025,

0 practice areas.42 number of NSW

The 35 climate change litigation cases were spread across a Vic

3 Cases per industry

Cth

Cases2per legal practice area

year. Financial Products and Services accounted for 6 per cent of cases (two), slightly lower than the 7 per cent (three cases) in 2024, while the Electricity Industry remained steady at 3 per cent (one case). Shipping and Retail each recorded 3 per cent of cases (one case), compared to none in 2024. No cases Types of plaintiffs were issued in traditionally “hard-to-abate” sectors such as 12

The practice area of Environment (Commonwealth and State

Agriculture, Construction, Manufacturing, Transport and

10 accounted for the largest number of cases at 20 legislation)

10 no cases filed in the Insurance Industry.

Waste. There were also

per cent (seven cases), up from 9 per cent (four cases) in 2024.

This pattern reflects NGO and advocacy focus on fossil fuel

Criminal Law represented 20 per cent of cases (seven cases),

and financial sectors, where climate impacts are the most

slightly higher than the 16 per cent (seven cases) last year.

publicised, and aligns with Australia’s regulatory environment,

Greenwashing cases—both regulatory and private—comprised 11

which regulates government decisions on fossil fuel approvals

5

8

6

4

ACCC/ASIC

The decline in cases across certain practice areas may partly

9

Individuals

per cent (one case), unchanged from the previous year.

Companies

0

NGO

per cent (three cases) in 2024. Class actions remained steady at 2

whereas such overlap was less common in 2024.

Cases per legal practice areas

2

Types of defendants Retail

plaintiffs in 2025, representing 31 per cent of cases (11), down Types of plaintiffs slightly from 38 per cent 2 in 2024. Companies accounted for 12

8 (four), up from 9 per cent in 2024. As in the previous year,

no proceedings were commenced by shareholders or the 6

Commonwealth.

NGOs

Regulators (ACCC and ASIC) initiated 11 per cent of cases

Individuals

20

NOPSEMA/EPA

per 10 cent (seven cases), 0 a decrease from 33 per cent last year.

Cth/States

R

Countries

29 per cent (10 cases), while natural persons comprised 20 Companies

Class Actions

Energy Law

Human Rights

G'wash

Crime

Env (Cth & State Leg)

5

Shipping

Non-governmental organisations were the most frequent 4

1 0

Elec.

6

2

10

0

Types of litigants

3

15

8

Fin. Prod.

4

Oil & Gas

20

10 Mine

5

0

UN

Claim Types

Int'l Trib

TAS

SA

WA

NT

ACT

AusNCP

Qld

Vic

Cth

6

10

5

3

8 7

15

6

reflect that 2025 cases often spanned multiple practice areas,

NSW

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 24 | D I S C USS I O N O F DATA

UN

12

from nine per cent of cases (three cases), marginally down from 7

6

UN

Int'l Ag

OECD

Tort

Crime

C’wealth

Admin

0

Int'l Ag

category. Energy Law cases declined to three per cent (one case)

8 16

0

OECD

10

Tort

2

20

from 21 per cent (nine cases) last year, when they were the largest

Crime

Cour

15

C’wealth

and emissions.

Cases per Industry 4

Admin

per cent of 0 cases (four cases), down from 19 per cent (eight cases) Cases per jurisdiction in 2024. Human Rights cases fell to nice per cent (three cases) 12

1

10

4 2

ACCC/ASIC

Individuals

Companies

NGO

0

42. Some cases were identified across multiple practice areas; to avoid double counting, each case has been attributed to a single category. This highlights that cases can be characterized in more than one way, meaning totals by practice area may vary depending on classification. No cases have been recorded under Land Use Law or Superannuation Law, although they have been counted in other categories. Cases relating to Planning Law (Victoria), Costs Orders, and Freedom of Information have been excluded from this calculation.

Cases per legal practice areas

Types of defendants

8

10

0

AART

QCAT

Mag. Crt. WA

Mag. Crt Tas.

Mag. Crt Vic

SC WA

SC Tas.

10

SCV

9

NSWSC & CoA

QLC

15

Int'l Trib.

Fed. Crt.

0

Retail

Shipping

Elec.

Fin. Prod.

Oil & Gas

Mine

12

6 5

3

Types of plaintiffs 12

AART

QCAT

Mag. Crt. WA

Mag. Crt Tas.

Mag. Crt Vic

SC WA

SC Tas.

SCV

NSWSC & CoA

QLC

Int'l Trib.

mining approvals to the Minister. New South Wales superior Relief courts (Court of Appeal and Supreme Court) recorded 6 per cent 0 Fed. Crt.

Retail

Shipping

Elec.

8

Fin. Prod.

Oil & Gas

10

Mine

0

of cases (two).

20 The Supreme Courts of Tasmania, Victoria, and

Western Australia, along with their Magistrates’ Courts, each had 3 per cent (one case). The Queensland Civil and Administrative 15

Tribunal and the Australian Administrative Review Tribunal

6

(AART) also recorded 3 per cent (one case each), with AART 10

4

cases significantly down from last year, possibly due to the

Types of plaintiffs

challenges in establishing climate as a Convention ground for 5

2 12Industry Cases per 15

20

5

5

involving investment treaty disputes before arbitral tribunals. The

4

in 6 per cent of cases (two), up from 2 per cent last year.

Types of defendants 2

9

10 6Types of plaintiffs 0 12 8 3 10

10

NGOs

Individuals

injunctions—claimed in 51 per cent of cases (18), up from 30 per 20

AART

QCAT

Mag. Crt. WA

Mag. Crt Tas.

Mag. Crt Vic

SC WA

SC Tas.

SCV

NSWSC & CoA

QLC

Fed. Crt.

15

Int'l Trib.

0under international investment agreements. No damages claims

were made in domestic courts, reflecting ongoing challenges with causation and integrating climate attribution science into 10

legal frameworks. One damages claim was recorded last year

2

4

and criminal fines to appeals against conviction. The most Relief 5common relief was administrative—such as declarations and

cent in 2024. Damages were sought in 23 per cent (eight), all

Retail

Elec.

Fin. Prod.

NOPSEMA/EPA Shipping

Cth/States

Countries

Oil & Gas

Mine

4

6

Relief sought Relief sought in 2025 ranged from damages, civil penalties,

Companies

6

15

(Pabai v Commonwealth), which was unsuccessful. Civil penalties

2

5

were pursued in 11 per cent of cases (four) by regulators (ACCC NGOs

and ASIC), up from 9 per cent in 2024. Criminal fines against Crim. Quash

Crim. Fines

Civil Pen.

Damages

0 climate protesters accounted for 8 per cent of cases (three), while Admin.

Individuals ACCC/ASIC

10

NOPSEMA/EPA

Individuals

NGO

Types of plaintiffs

Cth/States

Countries Companies

Companies

0

applications to quash convictions represented 5 per cent of cases Relief (two).

20

Courts In 2025, 29 per cent of cases (10) were filed in the Federal

15

6Types of defendants

Court of Australia—the highest of any jurisdiction—though

4

10

this represents a decline from 42 per cent (18 cases) in 2024.

10

International arbitral tribunals accounted for 29 per cent of cases

2 8

(10), a category not tracked last year. The Queensland Land Court

5

followed with 14 per cent (five cases), compared to none in 2024, Crim. Quash

Crim. Fines

Civil Pen.

Damages

0

Admin.

ACCC/ASIC

Individuals

2

Companies

4

and may see continued growth given its role in recommending

NGO

0 6

17

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 24 2 5 | D I S C USS I O N O F DATA

2024. Non-governmental organisations (objectors) were defendants

Mag. Crt. WA

in 2024 and cases against individuals declining from 9 per cent in

12

Mag. Crt Vic

cent of cases (three), with Regulator cases increasing from 2 per cent

SCV

6

QLC

EPA) and individuals (climate protesters) each accounted for 9 per

Fed. Crt.

Retail

Elec.

20

Fin. Prod.

Courts

15

Mine

Cases per(five), Industry down from 38 per cent last year. Regulators (NOPSEMA and

Civil Mag. Pen. Crt Tas.

0 0

Int'l Trib.

ACCC/ASIC

Individuals Shipping

Companies

NGO Oil & Gas

0

SC WA Damages SC Tas.

Commonwealth and states each represented 14 per cent of cases 8

10

Admin.

NSWSC & CoA

0

8

Crim. Quash

10

for4 29 per cent of cases (10), replacing the Commonwealth,

3

12

Crim. Quash

In 2025, companies were the most targeted defendants, accounting which 2024 with 38 per cent. Various countries, including Typesled of in defendants 2 Australia, followed with 23 per cent of cases (eight), primarily 10

0

AART Crim. Fines QCAT

15

6

6

0 8

Crim. Fines

15

Civil Pen.

20

Damages

0

Admin.

9

ACCC/ASIC

8

Individuals

Companies

NGO

0 10

12

refugee Courts status.

Relief

PHOTO CREDIT:Patsperspective/ISTOCK

PART II ADVISORY OPINIONS AND AUSTRALIA’S DOMESTIC SYSTEM OF LAW

By LISA DE FERRARI SC the Paris Agreement (considered by the ICJ), the ITLOS

given by courts established pursuant to international

Advisory Opinion and the ICJ Advisory Opinion do

treaties. In chronological order, they were:

state how Australia should, ideally, interpret its relevant

1. the Advisory Opinion of the International Tribunal for the Law of the Sea (ITLOS), on the obligations

Taken together, the three Advisory Opinions are

of States on pollution and marine environment

strikingly consistent.

1

conservation in light of climate change (ITLOS Advisory Opinion), handed down on 21 March 2024; 2. the Advisory Opinion of the Inter-American Court of Human Rights (IACHR), on the obligations of States2 in response to the climate emergency within the framework of international human rights law (IACHR Advisory Opinion), handed down on 29 May 2025; and 3. the Advisory Opinion of the International Court of Justice (ICJ), on the obligations of States3 in respect of climate change (ICJ Advisory Opinion), handed down on 23 July 2025.

As advisory opinions, they do not state the law with binding effect on States, even when a State is a party to the relevant treaty. That said, because Australia is a party to the Convention on the Law of the Sea (considered

by ITLOS), and to the United Nations Framework Convention on Climate Change, the Kyoto Protocol and

1.

2.

3.

obligations under those treaties.

First, the three courts agreed that States are under stringent duties of due diligence to prevent significant harm to the climate system. These duties are sourced in customary international law; the more subject-matter specific treaties do not, by the obligations there stated to which State parties have bound themselves, detract from these duties. The principle of common but differentiated responsibilities applies in assessing a particular State’s due diligence obligations. The precautionary principle also applies.

Second, the ICJ made clear that it is inconsistent with a State’s obligation to prevent harm for it to continue to support the fossil fuel production system, because anthropogenic emissions of greenhouse gases (GHGs) must be reduced. Non-compliance with treaty emission reduction commitments may constitute an internationally wrongful act, to which legal consequences

States that are Parties to the United Nations Convention on the Law of the Sea. Australia is a Party.

States that are Parties to the Organization of American States. Australia is not a Party.

States that are Parties to the United Nations Charter are automatically Parties to the ICJ’s Statute. Australia’s most recent declaration, recognising the ICJ’s compulsory jurisdiction with some limitation, is that of 21 March 2002.

19

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | PA R T I I

I

N 2024 AND 2025, three advisory opinions were

would attach, a matter to be assessed case-by-case

of other planetary boundaries,6 that two matters pull in

according to established international law principles.

opposite directions.

Third, the rights of individuals to a sustainable

First, the actual harm or risk that is intended to be

environment, meaning an environment preserved from

regulated is at the planetary level. Second, it is to State

the serious harms caused by emissions of GHGs, are part

actors, independent within their own territories (in

of international human rights law. In other words, there

effect, subdivisions of the planet), that international law

is no “technical” field of international obligations related

is directed. The gap that is created is one between global

to the adoption of emission targets that is divorced from

harms and risks, capable of being threats to the very

international law relating to human rights, a body of law

existence of the human species, and the acceptance and

that has significantly developed since 1945 and which

implementation at a smaller territorial level, by 200 or so

includes principles directed at protecting the rights of

independent actors, of legal measures to stop and reverse

children, indigenous people and others. The IACHR further

the harms, and to address the risks.

4

held that the right to a healthy, sustainable environment also belongs to nature itself, and a basis for so holding was that court’s jurisprudence on the custodian relationship that indigenous people have with their lands.

20

in its dualist model. Under this model,7 international legal obligations are not directly enforceable by domestic courts and tribunals. They only become enforceable if

Fourth, the ICJ made clear that the obligations of a State

they are enacted by Parliament. While this principle is

extend to regulating the activities of private actors which

clearly established in respect of treaty obligations,8 in

impact the climate system and, in that way, sustainability

respect of customary international law the position is less

of the environment (nature) and the enjoyment of

clear, primarily because courts have, wherever possible,

human rights, both extending into the future.

sought to avoid deciding on that basis. Nevertheless,

The convergence of international law is confirmed by the recent decision of the European Court of Human Rights in Greenpeace Nordic v Norway, handed down

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | A DV I S O RY O P I N I O N S A N D AUS T R A L I A’ S D O M E S T I C S YS T E M O F L AW

That gap finds expression in Australia, first and foremost,

on 28 October 2025. In that case, all three Advisory Opinions were relied upon,5 for the existence of a binding obligation of specific climate-related assessments of emissions of GHGs in a global context—that is,

the observable trend, in how Australian courts have approached international law (whether treaty-based or customary), has been one of strong alignment with the dualist model, by limiting incorporation and even a transformative effect.9 In this respect, Australia is out of step with both the UK approach,10 and the even broader Canadian approach.11

not limited Scope I and II, and not divorced from

At the domestic level, the human invention we know as

cumulative effects, in considering risk of harm including

“law” has three important features. First, we recognise

in compliance with the customary international law

that First Peoples had laws by which they lived and looked

obligation to prevent serious harm to the environment.

after their country, and that, while there have been many

It is important to bear in mind, in considering the effect of international law on regulating anthropogenic emissions of GHGs, or, for that matter, on the protection

4.

5.

6.

7.

8.

9.

10.

11.

acts of dispossession, First Peoples continue to have a relationship with the lands now comprising Australia which differs from the relationship that others have with

The ICJ declined to consider whether legal consequences may also attach to acts which, although not prohibited by international law, have caused significant damage to the climate system.

At [321], [322] an [324]. See also consideration of the three Advisory Opinions at [131]–[138].

Climate is one of nine scientifically recognised critical Earth systems. In terms of its planetary boundary, it has two components: concentration of GHG and “forcing” by trapped radiations. See e.g., https://www.stockholmresilience.org/research/planetaryboundaries.html.

Other models are the monist model, which views domestic and international law as parts of the one system (e.g., France), and hybrid models where some, but not all, parts of international law are directly enforceable (e.g., the US).

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286–7.

See e.g., Burmester and Reye, “The Place of Customary International Law in Australian Law: Unfinished Business” (2000) 21 Australian Year Book of International Law 1, 14; Main-Klingst and Marjanac, “The Downstream Impact of Advisory Opinions in the Case Law of Other International Bodies and Domestic Litigation” in Tigre and Rocha (eds), The Role of Advisory Opinions in International Law in the Context of the Climate Crisis, Brill Nijhoof (2025), at 295, the authors expressing the view that the High Court has adopted a “dualist, ambivalent approach to international law”. A well-known case, adopting the restrictive approach to customary international law, is the decision of the Full Federal Court in Nulyarimma v Thompson (1999) 96 FCR 153.

R v Jones (Margaret) [2006] UKHL 16; [2007] 1 AC 316; R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355.

Nevsun Resources Ltd v Araya [2020] 1 SCR 166.

those same lands.12 Second, the system developed after

continued recognition of the special connection of First

1788, starting from received English law and continuing

Peoples with these lands as a matter directly relevant

with the constitutional framework adopted in 1901, has

to how Australia must give effect, in these lands, to its

three components: constitutional law; statute law; and

international obligations. Second, whether principles of

common law. Third, under constitutional law principles

customary international law should have a more direct

(reflected in the Constitution’s three separate chapters),

effect upon domestic law.

it is the role of the parliament to make laws. The role of the courts is to adjudicate legal disputes, by interpreting enacted laws and by the development of the common law.

That role is enshrined by existence of a constitutionally separate judiciary, and the common law provides the principles of interpretation.

As to the first point, the special position of indigenous peoples, vis-à-vis the obligations of States in respect of climate change, was recognised by the IACHR and the ICJ.17 Although not at the federal level, there are domestic human rights statutes which recognise the special relationship of First Peoples and their lands, and

The principles include, first, that a statute will be interpreted

the content of that statutory recognition could, according

in accordance with international law (both treaty and

to the principles considered above, be construed

customary), unless Parliament clearly indicates a contrary

conformably with international law whilst noting that the

intention.13 Second, that international law is a legitimate and

obligations found to exist by the ICJ and the other Courts

important influence on the development of the common

are of nation States and not of its constitutive parts.

law.14 As to the first point, to the extent that Australian parliaments will enact legislation dealing with emissions of GHGs, and will draft those laws by the inclusion of concepts judicially considered in one or more of the three Advisory Opinions, such as what constitutes a risk of significant harm,15 the domestic courts should, in principle, accept the Advisory Opinion(s) as highly persuasive authorities.16 Thus, for example, the ICJ has made clear that a risk of effect of actions (or failures to act) of States viewed both collectively and together with the actions of private actors subject to the jurisdiction and control of each of the States.

The effect of this expression of international law is likely to be significant in future litigation, including in how courts will interpret Australia’s statutory law, which currently

far adopted in Australian law, against customary international law having a more direct effect, has been in relation to human rights obligations. By their nature, the interests sought to be protected are local, in that the obligations are directed at preventing violations of rights affecting an individual in the State’s territory (or, less commonly, at taking positive action to enhance individual or group rights). On the other hand, the customary law obligations of States, to prevent significant harm to the environment and of cooperation to protect the environment,18 are, in relation to emissions of GHGs, international in their very subject matter given they relate to a planetary boundary.

aligns with the narrower (more narrowly interpreted by

The development of international law by the three

parliament) treaty obligations, and in how the common law

Advisory Opinions is undoubtedly highly significant.

may develop.

Whilst Australia’s domestic system of law has

Other topics that could be explored, in an appropriate case where a plaintiff / applicant may seek to rely upon (aspects of ) the Advisory Opinions, include, first, the

12.

13.

14.

15.

16.

17.

18.

21

traditionally made it difficult for international law to be deployed, there will undoubtedly be a significant number of future cases where this resistance to adoption will be tested.

Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152.

Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. (2023) 275 CLR 292, [16], and authorities there cited.

Mabo v Queensland (No.2) (1992) 175 CLR 1, 41-2. In Mabo, and in later cases, the proposition was said to apply with particular force in respect of international human rights norms. The High Court has not been called to consider what force should be given to this proposition, when Australia’s international obligations are customary in nature, and require both the prevention of significant harm to the environment and cooperation between States to protect the environment.

ICJ Advisory Opinion, [275]-[276], adopting and expanding upon ITLOS Advisory Opinion, [239], [365], [397].

See e.g., the recent decision of Dini Ze’ Lho’imggin v Canada 2025 FC 1586, where at [40]–[45] the Canadian Federal Court considered the domestic effect of the ICJ Advisory Opinion, in the context of a legal system with similarities with the Australian system, including that it is a dualist model (see e.g., at [46]), although it provides for automatic adoption of customary international law into domestic law (see e.g., at [58]), absent statute to the contrary, and there is a constitutional charter of rights.

IACHR Advisory Opinion, [223], [280]–[281] (in the context of recognising Nature as a subject with rights to be protected), [339]– [340], [367]; ICJ Advisory Opinion, [374], [382], [384].

IACHR Advisory Opinion, [247]–[265], [274]–[277]; ICJ Advisory Opinion, [271]–[305]. The precautionary principle may also have become part of customary international law: ITLOS Advisory Opinion, [213]; IACHR Advisory Opinion, [288]; ICJ Advisory Opinion, [293].

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | A DV I S O RY O P I N I O N S A N D AUS T R A L I A’ S D O M E S T I C S YS T E M O F L AW

significant harm may exist by reason of the cumulative

As to the second point, the restrictive approach thus

CLASS ACTIONS

By EUGENIA LEVINE Thematic overview on climate change class actions

A

S CLIMATE CHANGE litigation has gathers litigation has also recently been used to ad-

the Full Court (Allsop CJ and Beach and Wheelahan JJ)

vance climate change litigation in Australian

overturned the first instance judgment, concluding that

One of the first climate change class actions, Sharma negligence against the Minister for the Environment of

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | C la s s Action s

global temperatures.

However, in Minister for the Environment v Sharma,20

v Minister for the Environment,19 advanced a claim in the Commonwealth. The applicants (eight children) argued that the Minister owed them and other Australian children a duty to exercise statutory powers with reasonable care so as not to cause them harm. They sought declaratory and injunctive relief to prevent the Minister from approving a coal mine expansion which they said would cause them harm brought about by climate change.

At trial, Bromberg J accepted that the Minister owed a duty of care to the children and that there was a foreseeable risk of harm from climate change. However, Bromberg J refused the grant of a pre-emptive injunction to stop the approval of the coal mine expansion, concluding that the applicants had not established the probability of the Minister breaching the duty of care in determining whether or not to approve the mine expansion.

Nevertheless, the imposition of a novel duty of care on the government with respect to climate change was widely seen as a landmark development in climate change litigation. It was also significant that the applicants adduced, and the Court accepted as plausible, 19. (2021) 391 ALR 1 (Bromberg J).

20. (2022) 291 FCR 311.

21. [2025] FCA 796.

children from climate change brought about by increased

pace in Australia, the vehicle of class action

courts.

22

scientific evidence demonstrating the risk of harm to the

the Minister did not owe a duty of care to Australian children to exercise the statutory powers in relation to mine expansion in a way that avoided the harmful impacts of climate change. Each of the judges delivered a separate judgment, underscoring the complexity of the factors underpinning the question of whether a novel duty could be said to exist. Notably, the appeal did not involve any contrary conclusions about the scientific evidence as to the harmful effects of climate change adduced at trial (which evidence was not contested before Bromberg J).

Subsequently, in Pabai v Commonwealth of Australia (No 2),21 the Federal Court again rejected the existence of a novel duty on the part of the Commonwealth to prevent or address climate change. The case was brought by two elders of the Guda Maluyligal Nation, Uncle Pabai Pabai and Uncle Guy Paul Kabai, on behalf of their Torres Strait Island communities. The core premise of the applicants’ case was that the government was required to take reasonable steps, and failed, to protect the Torres Strait Islands from the adverse impacts of climate change.

The applicants sought to establish two alternative, novel duties of care. The central allegation in the applicants’ primary case was that the government was required, and failed, to set appropriate greenhouse gas emissions targets having regard to the best available science.

Pabai was the first case in Australia to consider this

as a result of governmental decisions and conduct which

kind of novel duty to set emissions targets. The central

involve matters of high or core government policy.

allegation in the applicants’ alternative case was that the government was required, but failed, to provide predictable and adequate funding for infrastructure, in particular seawalls, which would assist Torres Strait Islanders to adapt to the impacts of climate change.

Although Sharma and Pabai may ultimately have been unsuccessful, they are significant in successfully establishing, through scientific evidence, key factual propositions concerning the adverse impacts of climate change. This more limited success leaves some room

Justice Wigney concluded that the Commonwealth did

for climate class actions grounded in negligence to

not owe the novel duties of care to the applicants and

be advanced, despite the challenges presented in

group members. This was primarily because decisions

establishing a duty of care which involves high-level

concerning the setting of emissions targets and adaption

government decisions on climate policy.

measures involved and reflected matters of core or high government policy, and the imposition of the duties at issue would inappropriately impinge on, or require the Court to pass judgment on, such matters.

It is also to be noted more generally that Australia has one of the most developed class actions regimes in the world (second perhaps only to the United States), and class action litigation has been expanding into new and

Nevertheless, it is significant that the Court accepted

broader areas of law, including consumer law cases. This

a number of the key factual propositions advanced

may also in future translate into more climate change

by the applicants in support of the existence of the

cases grounded in claims other than negligence, such as,

alleged duties. In particular, the Court accepted that in

for example, misleading or deceptive conduct claims.

setting previous emissions targets in recent years, the Commonwealth “failed to engage with or give any real or genuine consideration to what the best available science indicated was required for Australia to play its part in the global effort to moderate or reduce climate change and its

type of climate change class action. In O’Donnell v Commonwealth of Australia,23 the applicant commenced a that the Commonwealth failed to disclose material information relating to climate change to investors or

A novel aspect of the case was the argument that the

potential investors in exchange-traded government

applicants and their communities were losing the

bonds. The applicant sought a declaration that the

capacity to practise and observe their customs, traditions

Commonwealth engaged in misleading or deceptive

and belief, known generally as Ailan Kastom, which had

conduct in breach of s 12DA(1) of the Australian Securities

sustained them for generations. The applicants alleged

and Investments Commission Act 2001 (Cth), but did not

that climate change related flooding and inundation

seek any damages. In 2023, the parties agreed to settle

events had damaged their sacred sites and the burial

the proceeding on the basis that the Commonwealth

grounds of their ancestors, that as a result of climate

would make a public statement in agreed terms regarding

change they were unable to engage in many of their

the systemic risk climate change poses to Australia’s

traditional ceremonies and customs, and that they were

financial and economic position.

no longer able to engage in many of their traditional and life-sustaining activities. They claimed that climate change had effectively severed important aspects of their close connection with their traditional lands and seas. However, Wigney J concluded that loss of ability to practise Ailan Kastom was not a compensable harm under the law of negligence.

While there is scope to bring other novel climate change class actions alleging misleading or deceptive conduct, the decision in O’Donnell demonstrates that a key challenge is likely to be establishing any loss from this kind of conduct. However, like in O’Donnell, class actions may be seen as a useful vehicle for strategic litigation which does not necessarily involve claims for large (or indeed any)

Notably, in dismissing the case, Wigney J observed that

compensable loss, but seeks to expand the application of

the primary case failed not so much because there was

existing legal doctrines to issues concerning climate change.

no merit in the factual allegations, but due to the limits of the law of negligence in responding to claims of harm

22. At [1273].

23. [2023] FCA 1227.

23

representative proceeding in the Federal Court, alleging C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | C la s s Action s

impacts.”22

There is already at least one precedent for this

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CONSTRUCTION LAW AND RENEWABLES

By MARTIN SCOTT KC, HAMISH MCAVANEY,

CARLA AUMANN and JAMES MCNICOL SMITH

25

context of renewable energy projects or other construction

of Australian cases meeting the definition of climate

and engineering projects, or which concern companies

change litigation involving the areas of construc-

involved in the sector and (2) disputes which involve both

tion law and renewables. This remains the case in

questions of construction law and material issues of climate

2025. This may appear surprising on the surface. There

change science, policy or law or have a serious impact on the

continues to be significant investment in the construc-

volume of greenhouse gas emissions or on the community’s

tion and operation of renewable energy projects, which

resilience to climate change.

is a cornerstone of Australia’s transition to a clean energy economy. Construction and engineering projects, and in particular, projects in the mining or oil and gas sectors, continue to feature heavily in climate-based litigation.

However, the majority of climate-driven disputes

There are a number of cases fitting into the former category. For example, we are aware of the following cases, which involve: » challenges to decisions by government authorities

brought in connection with these projects continue to

in connection with feasibility licences for proposed

arise in contexts which do not meet the definition of

renewable energy projects;24

‘construction law’ claims.

Accordingly, it is important to distinguish between (1) disputes which involve material issues of climate change science, policy or law and which happen to occur in the

» challenges to decisions of environmental regulators in connection with licence applications for carbon intensive projects;25 and » allegations of greenwashing in the marketing of products used in the building and construction sector.26

24. See for example Seadragon Offshore Wind Pty Ltd v Minister for Climate Change and Energy (2024) 306 FCR 69. This case was referenced in the 2024 publication in circumstances where the matter had been heard but judgment was reserved at the time papers were submitted.

25. See for example Doctors for the Environment (Australia) Inc v National Offshore Petroleum Safety and Environmental Management Authority [2025] FCA 598.

26. The authors are aware of such a case currently before the Melbourne registry of the Federal Court involving two suppliers of components for construction projects. Given the significant contribution of the construction industry to global carbon dioxide emissions—notably through the production of concrete and steel—we anticipate that the manufacturers and users of construction materials may become targets for greenwashing allegations.

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I

N 2024, we reported that there were no examples

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26

We have not identified any Australian cases fitting

constructing new infrastructure projects in a way

into the latter category. Greenhouse gas emissions and

which ensures greater resilience to increased pressure

climate change resilience are not yet a feature of publicly

and damage from increased climate hazards (Design

reported orthodox construction law disputes.

That said, we envisage that contractors, developers,

to unaffordable or financially unsustainable insurance

insurers, and legal professionals will face new challenges

due to pricing of a high level of risk and the cost of

brought about by the escalating impacts of climate

rebuilds after extreme events (Cost Risk).

change in the near term. With this increased risk comes the increased probability of disputes.

In September 2025, the Australian Government Australian Climate Service released Australia’s first National Climate Risk Assessment.27 That risk assessment identified the following salient risks facing the construction industry: 1. an estimated 700,000 (+3.0°C) and 2.7 million (>

In addition, there are risks associated with increasingly stringent regulatory and compliance requirements.

These risks will translate into additional Cost Risk, because such changes may directly or indirectly increase the cost of performing the construction works or supplying associated goods and services the subject of any construction contract. They also perhaps sit in their own category as any new policy setting and uncertainty

+3.0°C) additional days of work are projected to be

will need to be factored as part of the contractual risk

lost every year by 2061 due to the higher frequency

allocation matrix as will any increased timelines for

and intensity of heatwaves, particularly affecting

project approvals.

agriculture, construction, manufacturing and mining (Delay Risk); 2. the necessity of engineering, designing and

27.

and Performance Risk); and 3. the prospect of rapid cost escalation in projects due

Of the above three heads of risk, an example of Delay Risk can be found in the decision of XJS World Pty

australias-national-climate-risk-assessment-an-overview-2025.pdf

Ltd v Central West Civil Pty Ltd 28 (XJS case, discussed

standard form construction contracts in Australia. The

below), however we have not identified cases in which

changes largely modernised the agreements but did not

Design and Performance Risk or Cost Risk have

fundamentally change the risk allocation provisions. Nor

been litigated. That said, Cost Risk appears to more

did they provide greater clarity about the meaning of

frequently materialise in the form of project proponents

the definition of “inclement weather” which is used to

withdrawing their proposal for a project which has

inform circumstances in which contractors are entitled to

become uneconomic due to those risks—that is, Cost

extensions of time.

Risks increase the prospect that projects will not proceed at all, but may not give rise to a correspondingly greater risk of disputation in connection with the design or construction of projects which are underway.

We anticipate that bespoke drafting in connection with climate change risk allocation will emerge on a projectby-project basis. By way of example, participants in major infrastructure projects – which typically involve

In the XJS case referred to above, the plaintiff (XJS),

significant investment and are delivered over a lengthy

entered into a contract engaging the respondent (CWC)

period – are increasingly turning their minds to the

to undertake civil construction works for development

inclusion of bespoke contractual provisions which

of land it owned in Bathurst NSW. Disputes arose

allocate risks in connection with climate change.

culminating in XJS issuing a notice to CWC to terminate

Disputes on major projects frequently arise years after

the contract. A central issue concerned delays in CWC’s

the contracts are signed. Accordingly, as more projects

performance of the works caused by ‘abnormal’ weather

with bespoke provisions continue towards completion,

events. Evidence led at trial revealed that Bathurst

we expect to obtain greater insight into how Australian

received 1,022 mm of rain in 2021 and 973 mm in 2022,

Courts will interpret and enforce such provisions.

well above the average of 655 mm. However, this strand of the argument failed as the delay evidence led at trial was not sufficient to persuade the trial judge or the justices of appeal as to quite how much of the delay could be explained by the rain. Further, there was no attempt attributable to climate change. For that reason, the case does not fall within the definition of climate change litigation.

The XJS case is itself unremarkable and raises issues familiar to building and construction practitioners. We anticipate it will be the sort of case in which climate science or policy might play a greater role in the future.

For example, litigants may seek to link damage, delay or disruption to construction in projects which arise from extreme weather (hurricanes, bushfires, protracted periods of high heat and floods) to climate change more frequently in the future, particularly where the contracts in question involve an express allocation of risk in connection with climate change events.

arbitration agreements or require disputes to be resolved through binding expert determination processes. These processes are private and generally confidential. Given the prevalence of these alternative dispute resolution processes, we expect that even as climate change cases in the construction and renewables sectors emerge, they will be under-reported.

Looking ahead, we continue to anticipate that climate change will drive changes to building standards and codes in the near future. In August 2025, the Victorian Legislative Council Environment and Planning Committee tabled its report following an ‘Inquiry into Climate Resilience’. The Committee found that the performance-based nature of the National Construction Code leads to building and design practices that do not adequately consider climate resilience, and foreshadowed updating minimum standards for design measures to provide for stronger climate resilience outcomes in Victoria’s built environments. The government has six

Disputes regarding bespoke contractual provisions which

months to respond to the report. We envisage more

specifically allocate climate-related risk in infrastructure

disputes about compliance with tightening ESG targets

projects have not yet made their way through the courts.

and sustainability obligations will emerge as various

Standard form construction contracts, including those

standards and codes are modernised.

updated recently, are typically neutral on climate change risk. On 30 June 2025, Standards Australia released a new revision to the AS4000 General Conditions of Contract, which is one of the most frequently used

28. [2025] NSWCA 133.

27

This area is ripe for future disputes.

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to lead evidence that the abnormal rainfall events were

That said, many construction contracts contain

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CORONIAL INQUESTS

By DR IAN FRECKELTON AO KC and DR GIDEON BOAS

Coronial investigations and climate change Climate change is resulting in increasing temperatures, extreme weather events, new challenges from pollution and a wide range of issues for climate adaptation by government

of the issue has been reviewed longitudinally by reference to coroners’ findings about deaths by Coates et al in relation to Australian heatwave fatalities from 1844 to 2010,32 and then between 2001 and 2018.33

bodies and health service providers.29 The statutory role

Deaths from heatstroke are considered by coroners in many and

of coroners empowers them to investigate a variety of

diverse contexts, including those related to fires. Multiple royal

phenomena that can intersect with climate change, including

commissions and commissions of inquiry have also investigated

inquiring into deaths, fires, explosions and disasters,

such matters, including causes of bushfires and safety

depending on the state or territory in which they work. This is

precautions that need to be adopted for fire-fighters and persons

likely to be a growing aspect of their inquisitorial preventative

evacuating such fires. There have been a number of high-profile

function,30 in circumstances where the correlation between

inquests into bushfires that have caused deaths. They include:

climate change and deaths, fires and a variety of other phenomena needs to be identified in the public interest and recommendations will be made to government and industry

Coroners’ inquests into bushfires Historically, heatwaves are Australia’s most destructive natural hazard in terms of loss of life31 and, for that reason, have prompted the holding of inquests in relation to deaths caused by heatstroke and by a failure to adopt suitable mitigating measures to allay exposure to high temperatures. The extent

29.

29

State Coroner Ian Gray;34 » The Coronial Inquiry into the 2019-2020 Bushfires, held by NSW State Coroner O’Sullivan in 2024;35 » The 2007 Inquest into the 2005 Eyre Peninsula Bushfires, held by South Australian Coroner;36 » The Inquest into the January 2003 Canberra bushfires in 2006, held by ACT Coroner Doogan;37 » The 2002 Inquest into the 1998 Wildfire Linton Inquest held

by Victorian State Coroner Johnstone;38 and

Including pursuant to the Australian Government’s National Climate Risk Assessment (https://www.dcceew.gov.au/climate-change/policy/ adaptation/ncra) and National Adaptation Plan (https://www.dcceew.gov.au/climate-change/policy/adaptation/nap#toc_0).

30. See generally I Freckelton and D Ranson, Death Investigation and the Coroner’s Inquest (OUP, 2006). See, by way of example of the preventive function of a Coroners Court: Coroners Act 2008 (Vic), s72. See also, L Bugeja ad DL Ranson, “Coroners’ Recommendations: Do They Lead to Positive Public Health Outcomes?” (2003) 10(4) Journal of Law and Medicine 399; G Sutherland, C Kemp and DM Studdert, “Mandatory Responses to Public Health and Safety Recommendations Issues by Coroners: A Content Analysis” (2016) 40(5) Australian and New Zealand Journal of Public Health 451; J Moore, Coroners’ Recommendation and the Promise of Saved Lives (Edward Elgar, 2016); L Bugeja, I Freckelton and D Ranson, “Coroners as Public Health Officials” in B Bennett and I Freckelton (ed) Public Health Law in Australia (Federation Press, 2023); M Trabsky and I Jones (ed), The Routledge Handbook of Law and Death (Routledge, 2024).

31. See B Bennett, CE Brolan and V Tippett, “Natural Disasters, Sustainability and Public Health Law” in B Bennett and I Freckelton (ed), Australian Public Health Law (Federation Press, 2023).

32. L Coates et al, “Exploring 167 Years of Vulnerability: An Examination of Extreme Heat Events in Australia 1844-2010” (2014) 42 Environmental Science & Policy 33.

33. L Coates et al, “Heatwave Fatalities in Australia, 2001 – 2018: An Analysis of Coronial Records” (2018) 67 International Journal of Disaster Risk Reduction art 102671.

34. Findings into the Deaths from the Churchill Fire (Victorian Coroners Court, 30 July 2015, Judge Gray).

35. Inquests and Inquiries into the 2019/2020 NSW Bushfire Season (NSW Coroners Court, March 2024, vol 1) < https://coroners.nsw.gov.au/ documents/reports/bushfires/2019-20-NSW-Bushfires-Coronial-Inquiry-Vol1.pdf>; Inquests and Inquiries into the 2019/2020 NSW Bushfire Season (NSW Coroners Court, March 2024, vol 2) < https://coroners.nsw.gov.au/documents/reports/bushfires/NSW-Bushfires-Coronial_ Inquiry-2019-2020-Vol-2.pdf>.

36. Inquest into the Deaths of Star Ellen Borlase et al (South Australian Coroners Court, 18 December 2007).

37. The Queen v Coroner Doogan; ex parte Lucas-Smith [2005] ACTSC 74.

38. Report of the Investigation and Inquests into a Wildfire and the Deaths of Five Firefighters at Linton on 2 December 1998 (Victorian Coroners Court, 11 January 2002, State Coroner Johnstone) < http://royalcommission.vic.gov.au/getdoc/1ef74588-457f-47ce-baa2-1c98f9fe10f2/ TEN.132.001.0001.pdf).

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for the adoption of safer practices, adjustments and strategies.

» The 2015 Inquest into the 2009 Victorian Bushfires held by

» The 1999 Inquest into the1997 Dandenong Ranges fires.

39

Importantly, State Coroner O’Sullivan commenced her 2024 findings into the 2019/2021 bushfires in New South Wales by observing that the objective of the Intergovernmental Panel on Climate Change (IPCC), the United Nations body for assessing the scientific literature related to climate change, including its impacts and options for responding to it, is to provide governments, at all levels, with scientific information they can use to develop climate policies. She noted that the IPCC has reported that Australia’s ability to adapt to climate

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ozone, increase allergens such as pollen and contribute to deteriorating air quality with serious consequential health effects. In the United Kingdom an important article in The Lancet made the point that air pollution and climate change are closely interconnected because the chemical species that lead to a degradation in air quality are frequently co-emitted with greenhouse gases: “Future, more intense heatwaves that are caused by climate change will lead to more wildfires, which will increase emissions of harmful greenhouse gases and particulate matter.”45

change “rests on better coordination and collaboration

It is therefore likely that such issues will fall for

between government agencies, communities, Aboriginal

future investigation in the course of coroners’ death

and Torres Strait Islanders, not-for-profit organisations

investigations. An example where this has already occurred

and businesses to help prepare for climate impacts (such as

was in December 2020 when Deputy Coroner Barlow

wildfires, heatwaves, and droughts) in combination with

at the Inner South London Coroner’s Court ruled that

future climate risks integrated into their decisions and

air pollution made a “material contribution” to the death

planning.40

from asthma of nine-year-old child, Ella Adoo Kissi

Coroners’ inquests into floods 30

Health Organization44 as expected to worsen ground-level

Debrah. Several months later he issued a Prevention of Future Deaths report expressing his concern about the

There have also been many inquests into deaths in floods

lack of legally binding air quality targets, lack of public

caused by unusually adverse climatic conditions in the form

information about risks to the public and inadequate

of torrential rains.41 At the time of writing, for instance,

training of medical practitioners.46 In June 2021 this

Deputy State Coroner O’Neil was conducting an inquest

prompted the United Kingdom Government to publish

in Orange into an “inland tsunami” in Eugowra in central

a response to the report.47 Then, in 2024 Ella’s mother

western New South Wales which was focussing upon

settled a civil action she had brought against Department

weather warnings and the emergency response.42

for Environment Food & Rural Affairs (DEFRA), the

Other examples of coronial investigations relevant to climate change Changing weather patterns brought about by climate change, result in deaths in a wide variety of circumstances.

Climate change has been acknowledged by the United States Environmental Protection Agency43 and the World

Department for Transport and the Department for Health and Social Care, for compensation over Ella’s “illness and premature death”.48 Ella’s mother is now campaigning for “Ella’s Law” to make clear air an acknowledged human right in the United Kingdom.49 Another atmospheric consequence of climate change is “thunderstorm asthma”, caused by high amounts of airborne pollen and a certain type of thunderstorm, as occurred in

39. State Coroner’s Office of Victoria, Inquests into the 1997 Dandenong Ranges Fires and the Deaths of Jennifer Lindroth et al (1999).

40. Inquests and Inquiries into the 2019/2020 NSW Bushfire Season (NSW Coroners Court, March 2024, vol 1) < https://coroners.nsw.gov. au/documents/reports/bushfires/2019-20-NSW-Bushfires-Coronial-Inquiry-Vol1.pdf> at [67]-[68], p. 20.

41. See, for example, Inquest into the deaths of: Mary Kathleen Allford, Trevor Allan Foster and Peter John Watson (Tasmanian Coroner’s Court, 21 February 2025).

42. See S Gardiner, “Weather Bureau Warnings ‘Inadequate’ Before NSW Town Razed by Flood that Killed Two People, According to Expert” (15 October 2025) Channel 9 News < https://www.9news.com.au/national/eugowra-flood-deaths-warnings-inquest-brigidrice/e0b29f9b-d3de-4387-8445-2d306cdb657a> .

43. Environmental Protection Agency, “Climate Change Impacts on Air Pollution” < https://www.epa.gov/climateimpacts/climate-changeimpacts-air-quality>.

44. World Health Organization, “Climate Impacts of Air Pollution” <https://www.who.int/teams/environment-climate-change-and-health/ air-quality-energy-and-health/health-impacts/climate-impacts-of-air-pollution>.

45. A-C Pinho-Gomes et al, “Air Pollution and Climate Change” (2023) 7(9) The Lancet Planetary Health E727, 727 46. Report to Prevent Future Deaths, Death of Ella Debra, 20 April 2021<https://www.judiciary.uk/wp-content/uploads/2021/04/EllaKissi-Debrah-2021-0113-1.pdf>.

47. United Kingdom Government, Response to Coroner after Ella Kissi-Debra Inquest (17 June 2021) <https://www.gov.uk/government/ news/government-responds-to-coroner-after-ella-kissi-debrah-inquest>.

48. JW Kelly and J Warren, “Air Pollution Death Settlement Win – Mum” (31 October 2024) BBC < https://www.bbc.com/news/articles/ c5yx6leg4nqo>.

49. <https://ellaslaw.uk>.

November 2016 in Melbourne.50 It has been observed that

consider another heat-related death. The inquest focused on

the risk of such deaths in the context of extreme weather

the training conditions during the pre-season rugby league

events is rising.51 Victorian Coroner Spanos conducted an

competition that resulted in the death of Mr Titmuss from 52

inquest in 2018 into 10 deaths from thunderstorm asthma.

“exertional heat illness”.55 With longer and hotter summers,

She commented that there was a need for further research to

there may be the need, highlighted by the Titmuss inquest,

improve understanding of the phenomenon of thunderstorm

for pre-season training to be modified to avoid putting players’

asthma. Our ability to predict which particular weather

health at risk.

event has the potential to precipitate it, and to issue more accurate forecasts and more meaningful public warnings.

She found there to be a sound basis for recommending that when a thunderstorm asthma warning is issued, those at

The emerging challenges for coroners’ inquests

It is foreseeable that the effects of climate change will result

risk remain indoors, with the windows and doors shut, and

in more extreme weather events which will place increasing

any evaporative cooling or other systems which draw in air

numbers of people’s lives at risk, necessitate adaptation

from outside be turned off and that people at risk not travel

to the changing climatic conditions and the challenges

to or from work to minimise the potentially fatal risk of their

that they pose. Part of this evolution in climate change

exposure to the elements. Inevitably, the implementation of

and our responses to it will involve coronial investigations

these recommendations will need to be reviewed in further

that lead to findings on prevention opportunities and

inquests.

recommendations.56 Coroners and legal representatives

An issue that arose in the extensive findings delivered by

alike will need to be conscious of this potential.

In addition, it is likely that there will be more and worse

into the highly publicised death of Kumanjayi Walker was

bushfires and floods, including in parts of Australia that

the suitability of the accommodation for many Indigenous

have not previously experienced such phenomena, at

persons who live remotely during an era of increasing

least to the same degree. Other areas of assessment of

temperatures, where temperatures can exceed what is

responses to changing climatic conditions will include the

endurable in standard government-built housing assigned

consequences of extreme climatic events, such as those

to Indigenous people in central Australia.53 During the

which exacerbate pollution and the levels of airborne

inquest, Dr Simon Quilty, a physician and expert in

pollens, which have the potential to precipitate fatal

heat stress and housing, gave what was described by the

respiratory responses. The insights from coroners’ inquests

Territory Coroner as “compelling evidence” that energy

into measures that can be taken to moderate such risks,

insecurity has multiple outcomes in terms of the ability of

at an emergency planning level as well as in the context

children to thrive, and that the phenomenon of overheating

of preventing avoidable floods and fires, confining and

and that overcrowding can have a variety of adverse

countering bushfires, protecting firefighters and evacuating

health outcomes. In his evidence he described initiatives

residents from fires and floods, and dealing with climate-

that he was promoting to construct housing that was

generated pollution levels, are likely to form an important

more culturally sensitive and that would adjust to rising

part of Australia’s public health and safety strategies as the

temperatures in central Australia.54

effects of climate change become more pronounced.

In the 2024 inquest into the death of a Manly Warringah rugby league player, Keith Titmuss, Deputy State Coroner Lee of the New South Wales Coroners Court was required to

50. See N Hughes et al, “The Impact of the 21 November 2016 Epidemic Thunderstorm Asthma Event on General Practice Clinics in Metropolitan Melbourne, Australia” (2022) 51(3) Australian Journal of General Practice 159.

51. PJ Beggs, “Thunderstorm Asthma and Climate Change” (2024) 331(1) Journal of the American Medical Association 878; P Venkatesan, “Epidemic Thunderstorm Asthma” (2022) 10(4) Lancet, Respiratory Medicine 325.

52. Inquest into the Death of Apollo Papadopoulos (Victorian Coroners Court, 9 November 2018) < https://www.coronerscourt.vic.gov.au/ sites/default/files/2018-12/ApolloGeorgePapadopoulos_553616.pdf> 53. Inquest into the Death of Kumanjayi Walker [2025] NTLC 8, https://agd.nt.gov.au/attorney-general-and-justice/courts/inquestsfindings/kumanjayi-walker/files-exhibits-and-media/Inquest-into-the-death-of-Kumanjayi-Walker-2025-NTLC-8.pdf.

54. ibid, at [368]ff.

55. Inquest into the Death of Keith Titmuss, Coroner’s Court of New South Wales, 3 May 2024 (Deputy State Coroner Lee), https:// coroners.nsw.gov.au/documents/findings/2024/Inquest_into_the_death_of_Keith_Titmuss.pdf.

56. Particularly in light of the expansive nature of the Coroner’s powers to make recommendations in relation to “any matter connected with the death” (s 82(1) of the Coroners Act 2009 (NSW) (similar to other jurisdictions), as interpreted recently in Commissioner of Police, NSW Police Force v Attorney General of NSW [2025] NSWSC 1119.

31

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Northern Territory Coroner Armitage on 10 June 2025

PHOTO CREDIT:Georgia Curry/ISTOCK

COSTS ORDERS

By ANNABELLE BALLARD

T

the incidence of inter partes legal costs.

Divergence in Approach to Final Costs Orders

The parties to climate change litigation

making final costs orders in climate change litigation

often seek to further competing public and economic

originates from the High Court decision of Oshlack v

interests and have disparate financial resources. Against

Richmond River Council,57 and culminates in the three-

this background, climate change litigation-related costs

stage analytical framework set out in Caroona Coal Action

decisions (costs decisions) raise two key legal issues.

Group Inc v Coal Mines Australia Pty Ltd (No 3)58 (the

First, can the characterisation of a proceeding as public

Caroona Coal approach).59 The State and Territory

interest litigation displace the general rule costs follow

Supreme Courts,60 and to some extent the Federal Court of

the event? Second, where financial resources are limited,

Australia,61 have adopted the Caroona Coal approach to the

who should carry the financial risks associated with being

exercise of the costs discretion in climate change litigation

unsuccessful in the litigation?

and, more generally, in public interest litigation.

These questions are far from novel, in that they have

In Environment Council of Central Queensland Inc v Minister

been considered before in the contexts of civil litigation

for the Environment and Water (No 2),62 both the majority

generally, and in public interest litigation. However,

and minority judgments cited Oshlack with approval,63

the costs decisions that have emerged in 2024–2025

then departed from the Caroona Coal approach without

demonstrate somewhat inconsistent approaches to the

expressly discussing or rejecting it. Colvin and Horan JJ

incidence of legal costs in climate change litigation.

read down Oshlack, holding that Oshlack was confined to

HE FOREGOING DISCUSSION assumes familiarity with the general principles governing

in approach to the making of final costs orders in climate change litigation. Second, potential recognition that the courts have the power to make costs orders against non

its statutory context and “did not articulate an approach that was to be adopted for ‘public interest litigation’ more generally”.64 This may impliedly overrule Engadine65, Caroona Coal and the decisions that followed them.

parties without an economic or financial interest in the

While in the minority, Mortimer CJ’s judgment is of interest

outcome of the litigation. Third, increased reliance on

because the costs decisions made in 2025 to pick up the thread

interlocutory costs orders to manage the financial risks and

of her Honour’s reasoning, with mixed results. Her Honour

uncertainty arising from the courts’ current approach to the

considered not only the character of the proceeding as public

incidence of legal costs and climate change litigation.

interest litigation66 but also the identities (or social functions)

57.

58.

59.

60.

61.

62.

63.

64.

65.

66.

In which the High Court recognised that characterisation of a proceeding as public interest litigation, in combination with “something more”, may provide a reason to depart from the general rule costs follow the event: Oshlack, [31] and [49]-[50] (Gaudron and Gummow JJ), and [104] and [134] (Kirby J). See also: Northern Territory v Sangare (2019) 265 CLR 164, [33] (per curiam). And see: South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation & Land Management [No 2] (1998) 72 ALJR 1008, [5] (Kirby J). (1998) 193 CLR 72.

[2010] 173 LGERA 280.

Caroona Coal, [38]-[41], [56]-[59], [60]-[61]. Citing with approval: Oshlack and Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365, [15]-[19] (per Lloyd J).

See, for example: Viscariello v Legal Profession Conduct Commissioner (No 2) [2019] SASC 165, [9]-[12]. See also: Local Democracy Matters Inc v Infrastructure NSW (No 2) [2019] NSWCA 118, [8]-[11] (Leeming JA, Sackville AJA, Emmett AJA). And see: Concerned Citizens of Canberra Inc v Chief Planning Executive (No 2) [2017] ACTCA 1, [48]-[55]. And: Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (No 2) (2021) 252 LGERA 261, [9]-[10]. And also: People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (No 2) [2017] NSWCA 157, [24]-[26].

See for example: Azimitabar v Commonwealth (No 2) [2024] FCA 1383, [9]-[10], and [14]-[26].

[2024] FCAFC 97.

Environment Council [33] (Mortimer CJ) and [61] – [63] (Colvin and Horan JJ).

Environment Council [63] (Colvin and Horan JJ), citing with approval: Ruddock v Vadarlis (No 2) [2001] 115 FCR 229 at [21] (Black CJ and French J), and Save the Ridge Inc v Commonwealth [2006] FCAFC 51 at [6]-[16] (Black CJ, Moore and Emmett JJ).

Endgadine Area Traffic Action Group Inc. v Sutherland Shire Council (No 2) (2024) 136 LGERA 365.

Environment Council, [41]-[47] and [54]-[55] (Mortimer CJ).

33

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The key trends that have emerged are first, a divergence

The more traditional or long-established approach to

and actual financial resources of each of the parties.67 Chief

Whereas, in Doctors for the Environment,76 McElwaine

Justice Mortimer’s judgment is a substantial step away from

J applied Environment Council in the context of an

the Caroona Coal approach. The Caroona Coal approach

interlocutory application for a maximum costs order under

revolves around: the character, importance and breadth of

r 40.51 of the Federal Court Rules 2011 (Cth) (FCR).77

the interests sought to be vindicated by the litigation; the contribution of the litigation to the rule of law; the conduct of

Non-Party Costs Orders

the parties; and whether the outcome of the litigation affects a

Following Munkara v Santos NA Barossa Pty Ltd (No 3)78

significant or narrow section of the general public. Whereas

(Munkara 3), Santos ultimately applied for, and was

Mortimer CJ’s approach revolves around who the parties are,

granted, a non-party costs order against the solicitors

the social role or public-interest function they fulfil, and how

for the applicants; the Environmental Defender’s Office

much money they actually have.69 With due respect, this gives

Limited (EDO) in the context the applicants themselves

rise to significant uncertainty and is inconsistent with the

lacked the means to pay a costs order in Santos’ favour.79

longstanding principle that in the context of costs orders: “[t]

Justice Charlesworth did not publish written reasons for

he law judges persons by their conduct, not their identity”.70

the non-party costs order against the EDO. However, it is

68

The 2025 costs decisions shed light on the uncertainty that arises from the majority and minority judgments in Environment Council. In Central Australian Frack Free Alliance,71 Chief Justice Grant distinguished Environment Council as only applying to the incidence of legal costs on appeal, observing that “the public interest role of community organisations is ‘an important consideration

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34

possible to extrapolate some guidance from her Honour’s judgments in Munkara v Santos NA Barossa Pty Ltd (No 4)80 (Munkara 4) and Munkara v Santos NA Barossa Pty Ltd (No 5)81 (Munkara 5), which concerned whether or not Santos should be granted leave to issue subpoenas to produce to the EDO (and others) for the purpose of its application for a non-party costs order.

for the exercise of the costs discretion at the appellate

In Munkara 4 and Munkara 5, Charlesworth J summarised

level in particular’”.72 Contrastingly, in Rainforest Reserves

the general principles which guide the Court’s discretion to

Australia,73 Sharrif CJ preferred the majority judgment in

make a non-party costs order, which are not controversial.82

Environment Council, holding that the general rule costs

The crux of these principles is that the discretion must be

follow the event “does not lose its ‘compelling force’ simply

exercised judicially, and the only precondition to making a

because the successful party happens to be wealthy or not,

non-party costs order is that the non-party has a sufficient

as no party is asked to be subjected to litigation in which

connection with the unsuccessful party and litigation

it is ultimately successful”. His Honour did not expressly

that is material to the question of costs.83 Her Honour

accept or reject Mortimer CJ’s reasoning, instead remarking

then foreshadowed in obiter that the application of these

upon conceptual, evidentiary and practical difficulties

principles might be extended to non-parties that lack a

created by considering the unsuccessful party’s identity and

financial or commercial interest in the outcome of the

financial position in making final costs orders.

litigation. In the case of the EDO, the relevant connection

74

75

may have stemmed from the circumstances that the EDO 67. Environment Council, [39]-[40], [48], [51]-[54] and [56]-[58] (Mortimer CJ).

68. The considerations in favour of ousting the general rule are: the novelty of the legal issues raised; the extent to which the litigation contributes to the proper understanding, development and administration of the law; the size, value and importance of environmental interest or component of the environment the litigation seeks to protect; and, the number of people affected by the outcome of the litigation: Caroona Coal, [60]. The countervailing considerations are: whether the applicant seeks to vindicate rights or interests of commercial nature; whether the applicant is financially supported by persons or bodies with a financial or legal interest in the outcome of the litigation; the narrowness of the public interest raised; whether the litigation was conducted in an unreasonable manner, and whether there was any disentitling conduct; Caroona Coal, [61].

69. Environment Council, [39]-[48] and [51]-[58] (Mortimer CJ).

70. Oshlack, [90] and [92] (McHugh J). See also: Northern Territory v Sangare [2019] 265 CLR 164, [28] – [29] (Kiefel CJ, Bell, Gageler, Keane And Nettle JJ). And see: KB v Burrun Dalai Corporation Inc (Costs) [2025] NSWSC 252, [8].

71. Central Australian Frack Free Alliance Inc v Minister for Environment [2025] NTSC 54.

72. Frack Free Alliance, [22] (Grant CJ), citing Environment Council [35] and [37] (Mortimer CJ).

73. Rainforest Reserves Australia Inc v Minister for the Environment and Water [2025] FCA 702.

74. Rainforest Reserves Australia, [4] and [19] (Sharrif J), citing with approval Environment Council, [61] (Colvin and Horan JJ).

75. Rainforest Reserves Australia, [8]-[9], and [46]-[47] (Sharrif J), citing Environment Council, [40]-[51] (Mortimer CJ).

76. Doctors for the Environment (Australia) Inc v National Offshore Petroleum Safety and Environmental Management Authority [2025] FCA 598.

77. Doctors for the Environment, [11]-[18], (McElwaine J).

78. [2024] FCA 9.

79. Orders dated 28 November 2024, Order 1 (Charlesworth J).

80. [2024] FCA 414.

81. [2024] FCA 717.

82. Munkara 4, [14]-[18] (Charlesworth J). See also: Munkara 5, [14].

83. Munkara 4, [14]-[18] (Charlesworth J). See also: Munkara 5, [14].

had a political interest in the outcome of the litigation in that it had facilitated the litigation to achieve a political or ideological objective,84 and had partially funded at least part of Munkara 3 to the tune of $150,000.85 The conduct of lawyers in the employ of the EDO may also have provided an alternative basis for the making of a non-party costs order, because there was some suggestion they may have engaged in witness coaching and presented a case knowingly lacking in rigour and independence.86 However, it is impossible to ascertain whether these matters were established, and what weight they were given, due to the absence of written reasons.

Interlocutory Costs Orders Doctors for the Environment likely represents an attempt to manage the uncertainty and financial risks arising from Environment Council and non-party costs orders. The EDO (who represented the applicant) would have been painfully aware of the risks entailed in waiting until after the primary proceeding to raise the applicant’s financial position with the Court, by reason of being subjected to a $9,042,093.05 non-party costs order after the Munkara proceedings.87 While Munkara 4 and Munkara 5 are not cited in Doctors for the Environment, McElwaine J’s decision suggest the most appropriate time for an impecunious applicant financial position, and the potential “chilling effect” that an adverse costs order might have on the proceeding is at the interlocutory stage before substantial legal costs have been incurred.88 This would resolve at least some of the uncertainty arising from Environment Council, because it is consistent with the existing authorities concerning the considerations relevant to the making of maximum costs orders, precisely because their purpose is to displace the general rule at a “relatively early stage of the proceeding, rather than defer the matter of costs to when the proceeding has been determined”.89

Litigants will put their (financial) cards on the table early. It is likely that the participants in climate change litigation will increasingly rely on interlocutory costs orders or costs orders by agreement to manage the uncertainty arising from the decisions in Environment Council and Munkara 5. Risk-averse not-for-profit charities and activist groups facilitating climate change litigation will increasingly seek protective costs orders, including maximum costs orders in the Federal Court,90 and orders with similar effect in the Victorian state courts.91 Equally, corporate defendants to climate change litigation may also increasingly seek security for costs to reduce the risk of a costs order in their favour remaining unsatisfied.92 This would benefit all concerned because it would enable the parties to conduct climate change litigation with their eyes open to the financial risks involved and the need to take steps to contain the costs of the proceeding. It will also assist the court to case manage climate change litigation in accordance with the overarching purpose of furthering the just, timely and costeffective resolution of the real issues in the proceeding.

When a case that is an appropriate vehicle arises, either the applicant or the respondent will inevitably seek to clarify the principles applicable to final costs orders in climate change litigation, as they are of existential importance. In the long term, the incidence and quantum of inter partes legal costs determines who has the practical ability to participate in climate change litigation. Which, in turn, influences the extent to which the courts examine the legality of actions and decisions that affect greenhouse gas emissions and the community’s resilience to climate change, whether there is a genuine contradictor, and what legal arguments will be raised in climate change litigation. Uncertainty as to where the costs of climate change litigation will fall effectively shuts the doors of court to almost all climate change litigation, meritorious or otherwise, by disabling the parties from evaluating their financial risk and making forensic decisions about whether to bring, maintain, or defend it. This is plainly against the public interest in the administration of justice and warrants a serious and principled consideration of how the courts exercise their costs discretion in climate change litigation going forward.

84.

85.

86.

87.

88.

89.

35

Munkara 4, [47], [61] and [76] (Charlesworth J). Munkara 5, [33]-[40] (Charlesworth J).

Munkara 5, [4], [9], and [71] - [75] (Charlesworth J).

Munkara 5, [28]-[29], [65]-[68] and [89] (Charlesworth J).

Orders dated 28 November 2024, Order 1 (Charlesworth J).

Doctors for the Environment, [11]-[18] (McElwaine J).

Houston v State of New South Wales [2020] FCA 502, [17]-18] (Griffiths J). See also: LFB Resources NL v Minister for Environment and Water [2025] FCA 898, [13]-[16] (Stellios J), citing Housten with approval. See also the statutory formulation of the considerations relevant to the exercise of the discretion to make an order fixing the maximum costs recoverable in the proceeding in the Victorian state courts: CPA, s 65C(2A).

90. FCR, r 40.51.

91. For instance, in the Victorian State courts, such organisations might seek an order fixing or capping recoverable costs in advance: CPA, s 65C(2)(d) - (2A).

92. See for generally: FCR r 19.01. See also: Supreme Court (General Civil Procedure) Rules 2025 (Vic), r 62.02.

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to put the court and their opponent on notice of their

Predictions

PHOTO CREDIT:FiledIMAGE/ISTOCK

CRIMINAL LAW

By DR JULIAN MURPHY 37

involvement in an anti-logging protest in Tasmania.

in the criminal law section of this review

A magistrate found Dr Brown guilty of the offence

concerned the prosecution of environmental

of trespass. On appeal, Dr Brown sought to rely on

protesters. This has remained a central theme of

the freedom of conscience in s 46 of the Tasmanian

the case law in 2025. Many of these cases involve protes-

Constitution. Dr Brown also argued that the forestry

tors pleading guilty in the Magistrates’ Court and being

employee who had purported to request that Dr Brown

sentenced without any published judgment. Accordingly,

leave the area was acting beyond his statutory authority.

it is difficult to catalogue these cases. However, some

This argument relied on a consent order that had been

prominent examples have been reported on by the media

made in other Tasmanian proceedings, this time brought

and thus give a glimpse of what is occurring. One such

by protestors who had been the subject of a similar

case is the prosecution of three activists who conducted a

request and had successfully sought judicial review of

protest outside the home of the chief executive officer of

the same: Scott Jordan v Forestry Tasmania94. Both of Dr

Woodside Petroleum. The three accused pleaded guilty

Brown’s arguments failed (as did his other grounds),

to unlawful damage and trespass and were fined a total of

although the rejection of the latter argument is the

$6,500.

subject of an appeal to the Tasmanian Court of Appeal,

Beyond these cases, two sub-categories of protest cases warrant particular mention. In the first sub-category are cases in which protestors either directly or collaterally attack the validity of the law, instrument or other authorisation by which their conduct was rendered criminal. An example of a case in this sub-category is Brown v Hariss93, which concerned Dr Bob Brown’s

93. [2025] TASSC 32.

94. Supreme Court of Tasmanian, No 299 of 2024, Porter AJ. 95. [2025] NSWSC 39.

which is due to be heard in early 2026. Another case in this sub-category is Stuart v Minister for Transport95. In that case, members of the ‘Rising Tide’ group intended to hold a number of ‘water based’ protest activities in Newcastle but were purportedly banned from doing so by a notice given by the Minister for Transport. The group brought proceedings challenging the validity of the notice. At [47] and [48] of the decision, the Court

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L

AST YEAR, THE majority of cases surveyed

considered that the penal nature of the statutory

the history and effectiveness of climate activism in

provision, and its impingement on fundamental rights,

generating action by public and private actors. The

were relevant to the notice’s validity. Ultimately, the

magistrate ruled those reports inadmissible—on the basis

Court held the notice to be invalid.

that they were irrelevant—but proposed to take judicial

Before leaving this sub-category of protest case it should be noted that beyond judicial review, there are other means by which protesters are seeking to challenge the lawfulness of police or other government actions against

pending.

A more peripheral protest case that remains worthy of mention is Le Roy v Brisbane City Council100. In that case, a

to protests. Perhaps the highest profile of such cases is

member of Extinction Rebellion brought discrimination

the class action brought in the Supreme Court of Victoria

proceedings against the Brisbane City Council, alleging in

by protestors at the International Mining and Resources

part that the Council had discriminated against her on the

Conference held at the Melbourne Convention and

basis of her political belief or activity in refusing access to

Exhibition Centre in October 2019. The matter proceeded

library and council meeting rooms. In trying to defend the

to trial in February 2025, with an interlocutory ruling

claim, the Brisbane City Council attempted to show that

being made mid-trial but judgment otherwise being

Extinction Rebellion was involved in largescale unlawful

reserved: Brown v State of Victoria (No 2)96. Another

activities, including the commission of criminal offences.

proceeding connected to the same protest settled in

The Tribunal rejected that contention and upheld the claim

February 2025, with the protestor plaintiff being paid

of discrimination.

law—is when those dealing with protestors are criminally charged. An example is the prosecution of a Tasmanian logging worker who was found guilty of assault after

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appealed to the Supreme Court of Victoria. The appeal is

include tort claims brought against police who respond

protected by the law—this time more directly the criminal

cutting a rope attached to a protestor’s platform while it was 20 meters off the ground. The accused was sentenced to a suspended term of imprisonment.

There has also been legislative action in this area with a number of Australian jurisdictions enacting or attempting to enact laws restricting the right to protest in various ways and criminalising breaches of these restrictions. See, for example, the defeated law in Victoria: Safer Protest with a Registration System and a Ban on Face Coverings Bill 2025. A New South Wales protest restriction was held to be invalid for infringing

In the second sub-category of protest cases are those in

the implied freedom of political communication in

which novel defences are sought to be run, including the

the Constitution in Lees v State of New South Wales101.

defence of sudden or extraordinary emergency. There

Although that challenge was brought by a member of

is now a line of Australian cases stretching back to the

Palestine Action Group, the evidence in the proceedings

decision in Rolles v Commissioner of Police97 in which

touched upon climate related protests: see [19] of the

this has been attempted, as was discussed in last year’s

judgment.

review (although last year’s review omitted reference to C v Western Australia Police98). That line of case law was added to in 2025 in the unreported decision of Berrington v Homewood99. In that case, the accused was charged with various public order offences arising out of a protest blocking the exit of an ExxonMobil facility.

He foreshadowed raising the defence of sudden or extraordinary emergency and filed two expert reports: one from a renowned climate scientist explaining the nature and immediacy of the threat posed by climate change, a second by an academic researcher explaining

96. [2025] VSC 59.

97. [2020] QDC 331.

98. [2024] WASC 79.

99. Magistrates’ Court of Victoria, Magistrate Halse, 16 May 2025.

100. [2025] QCAT 314.

101. [2025] NSWSC 1209.

convicted of two of the charges and has since been

them. Examples of such legal accountability mechanisms

$90,000. Other means by which protestors are being 38

notice of climate change. The accused was ultimately

A less common (indeed, rare) type of climate-related criminal prosecution is the private prosecution of large emitters, whether private companies or public entities.

Overseas, there have been examples of non-government organisations and individuals bringing private prosecutions against corporations for environmental harm (see, for example, the case of BLOOM and Others v TotalEnergies in 2024 in France, although that did not reach final judgment). In Australia, there has been at least one attempted private prosecution for

LOOKING FORWARD TO 2026 AND BEYOND, IT SEEMS LIKELY THAT SOME OF THE LITIGATION IN THE REGULATORY AND CORPORATE COMPLIANCE FIELD WILL SPILL OVER INTO THE CRIMINAL ARENA.

environmental offences, in particular the novel (and as

Before moving on from 2025 to the future, it should be

yet unrecognised) offence of ecocide. This case began in

observed (as it was last year), that there were very many

2023 when Uncle Robbie Thorpe attempted to institute

important environmental prosecutions (and defences)

a private prosecution against the King for various crimes,

moving through the courts that have not qualified for

including genocide and ecocide. The Magistrates’ Court

inclusion in this survey. Examples include: Environment

of Victoria refused to accept the initiating documents and

Protection Authority v Maules Creek Coal Pty Ltd (No

Mr Thorpe sought judicial review of that refusal. Justice

4)104 and Environment Protection Authority v Magistrates’

Richards of the Supreme Court of Victoria dismissed the

Court of Victoria105 (currently the subject of an appeal).

application for judicial review: Thorpe v Magistrates’ Court

However, as these cases do not relate to greenhouse gas

of Victoria . Mr Thorpe has since appealed that decision,

emissions they will not be reviewed further.

102

which appeal is presently pending in the Victorian Court

Looking forward to 2026 and beyond, it seems likely that some of the litigation in the regulatory and corporate

In that litigation Mr Thorpe referred to international

compliance field will spill over into the criminal arena.

materials relating to ecocide. The law in the international

To date, it appears that regulatory prosecutions by ASIC

space has progressed significantly in 2025. Most

have been limited to allegations of contravention of civil

importantly, on 23 July 2025, the International Court of

penalty provisions in the ASIC Act and the Corporations

Justice gave an advisory opinion in which it explained

Act. An example is the proceeding filed by ASIC in the

that states are obligated under international law to

Supreme Court of New South Wales on 2 October 2025

address climate change and that failing to do so could

(no. 379274) in which it alleged (amongst other things)

constitute a ‘wrongful act’ within the meaning of

that a company’s public disclosure statements were

international law. Whether and how this opinion might

misleading or deceptive insofar as they disclaimed any

affect domestic law, including criminal law, remains to

investment into (relevantly) companies whose activities

be seen. It also remains to be seen whether international

harmed the environment. It is not hard to imagine a

bodies—such as the International Criminal Court—will

prosecution in the future alleging that similar conduct

take the more significant step or recognising ecocide as

contravenes criminal offence provisions in ss 1041E,

an international crime, rather than just a wrongful act. A

1041F or s 1041G of the Corporations Act.

useful survey of this area was published in Australia in: Reaya Pham, “Ecocide and the Rome Statute: Challenges and Compatibility103”.

102. [2025] VSC 22.

103. (2025) UNSWLJ Student Series No 25-13.

104. [2025] NSWLEC 92.

105. [2025] VSC 353.

Disclosure—the author is, or has been, involved in a number of the cases discussed in this entry.

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of Appeal.

39

ENERGY LAW (ENERGY REGULATORS)

By STEPHEN PARMENTER KC and WILLIAM STONE

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40

I

N 2024, WE observed that there were few exam-

that the project’s environment plan was required by the

ples of climate change litigation involving energy

Offshore Petroleum and Greenhouse Gas Storage (Environment)

regulators in Australia, and that it was uncertain

Regulations 2023 to identify and define acceptable levels of

whether the area would see growth in 2025. Now,

Scope 3 greenhouse gas emissions. The DEA alleged that

with the benefit of another 12 months of data, the posi-

the plan failed to do so, and, therefore, that it was not open

tion appears to be much the same. While there are a small

to NOPSEMA to be reasonably satisfied that the plan met

number of relevant cases which have been concluded in

the criteria for acceptance.

the last 12 months, we have not observed any material upwards or downwards trend. Nevertheless, there are some new observations to be drawn from this year’s data.

The claim was dismissed. McElwaine J held that the regulations did not require the definition of a specific level of Scope 3 emissions that was acceptable. Instead, the regulations

Once again, energy regulators remain a target for

required a demonstration that the environmental impacts and

strategic climate change litigation by non-government

risks of the activity would be reduced to as low as reasonably

organisations (NGOs). The breadth of NGOs pursuing

practicable and would be of an acceptable level in the

litigation is expanding.

circumstances. The proponent’s plan did so. Thus, it was open

In August 2025, judgment was delivered in proceedings commenced by Doctors for the Environment Australia (DEA) against the National Offshore Petroleum Safety Environmental Management Authority (NOPSEMA).106 This appears to be the first piece of strategic litigation by the DEA in Australia. The DEA sought judicial review in the Federal Court of NOPSEMA’s decision to grant final approval of an offshore natural gas project. The DEA alleged

to NOPSEMA to be reasonably satisfied that the environment plan met the acceptance criteria, including by having regard to the proponent’s use of a ‘worst-case scenario’ analysis of emissions.

We note, in particular, his Honour’s observations that: It need hardly be said that it is not the function of this Court to examine the merits of what is the central concern of DEA: the release of materially more GHG into the

106. Doctors for the Environment (Australia) Incorporated v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2025] FCA 989.

atmosphere is likely to be catastrophic for the environment

consequences will not necessarily dissuade NGOs from

and human health. This Court is purely concerned to

commencing similar proceedings in the future.

exercise its Constitutional function to determine on the case as formulated by DEA whether NOPSEMA erred in law or committed jurisdictional error in purporting to be reasonably satisfied that the EP met the environment plan acceptance criteria in the Regulations. It is not for this Court to adjudicate on the existential threat posed by climate change caused by anthropogenic CO2 emissions to the atmosphere.

We also reported last year on Seadragon Offshore Wind’s (then on-foot) challenge to the Victorian Minister for Climate Change and Energy’s decision to refuse to issue a feasibility licence for its proposed offshore wind farm.

Seadragon’s challenge was eventually successful, with the Federal Court setting aside the Minister’s refusal decision on the basis that, contrary to the position which the Minister had taken, the Minister was empowered to grant

It is noteworthy that, notwithstanding the dismissal

a feasibility licence over an area reduced in size from the

of the claim, the DEA successfully established its

area in respect of which the application had been made.109

standing to bring the proceeding. The project proponent

However, following that Court decision, the Minister

challenged the DEA’s standing, contending that the DEA

once again refused the issue of the licence, and Seadragon

was not a person aggrieved by NOPSEMA’s decision.

has since indicated that it is no longer proceeding with

The Court disagreed. McElwaine J held that the DEA

the project.110

had standing by virtue of ‘the overarching nature of what it does, its objects, activities and interests’ and its engagement in pursuing those activities and interests in the subject matter of NOPSEMA’s decision. Further, the proponent had previously recognised the group as a ‘relevant person’ during consultation (within the terms of the regulations).

Finally, in September 2025, the Australian government announced a revised 2035 emissions reduction target.

As part of the announcement, the government released a conceptual plan entitled the ‘Electricity and Energy Sector Plan’.111 Energy regulation is a fundamental part of this plan. The plan identifies a need for “Regulation, standards and markets…to incentivise investment in

reported last year in which there are updates. The first

technologies that improve energy performance” and

is the Maules Creek Community Council’s challenge to

“Balanced regulation of new energy technologies and

the NSW Environment Protection Authority’s (EPA)

services”. The plan also notes the government’s review of

licence review of the Maules Creek Coal Mine. The

the gas market to “examine existing regulatory settings

Council had previously unsuccessfully argued that the

and consider long-term policy settings for Australia’s gas

EPA had not undertaken the review lawfully, because

markets with a focus on ensuring efficient investment,

the project did not adequately address risks of pollution.

availability of gas and meeting emissions reduction

Since our last report, the NSW Land and Environment

targets”. The plan foreshadows draft legislation to be

Court handed down its decision on the costs of the

released by late 2025, for public consultation by early

proceeding.107 The Council successfully argued that

2026. It remains to be seen what changes may come from

there should be no order as to costs, despite its failure

this new policy, including any changes in relation to the

in the proceeding, on the basis that there were public

roles of various energy regulators, and whether increased

interest grounds in bringing the proceeding. This is to

regulation of carbon-intensive activities may encourage

be contrasted with other proceedings where NGOs have

further litigation from NGOs. It is an area that we will

adopted the approach of obtaining ‘protective’ maximum

report further upon in 2026.

costs orders at an early stage of the proceeding which have capped their prospective liability, on the basis that it was in the interests of justice to do so.108 It seems likely

For the time being, energy regulators continue to remain a target, albeit a small one, for climate change litigation.

to follow from these various ways in which NGOs have reduced their exposure to costs orders which might be made against them that the possibility of adverse costs

107. Maules Creek Community Council Incorporated v Environment Protection Authority (No 2) [2024] NSWLEC 123.

108. See, eg, Doctors for the Environment (Australia) Inc v National Offshore Petroleum Safety and Environmental Management Authority [2025] FCA 598 at [12]; Environment Victoria Inc v AGL Loy Yang Pty Ltd (No 2) [2023] VSC 86 at [3].

109. Seadragon Offshore Wind Pty Ltd v Minister for Climate Change and Energy (2024) 306 FCR 69; [2024] FCA 1290.

110. https://www.planning.vic.gov.au/environmental-assessments/browse-projects/seadragon-offshore-wind-farm.

111. https://www.dcceew.gov.au/sites/default/files/documents/electricity-energy-sector-plan-2025.pdf. See, in particular, pages 34, 51, 52 and 57 for the cited passages.

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Separately, there are two matters upon which we

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ENERGY REGULATION (TRANSMISSION NETWORKS)

By TOM CLARKE and JESSICA APEL of electricity transmission networks is critical to Australia’s transition to clean energy in response to climate change. There is pres-

sure for the networks to be augmented at pace, and this

Regulatory complexity and social licence: Moorabool and Central Highlands Power Alliance v Minister for Energy and Resources

transmission build must occur within a complex stew of

In 2023, the Victorian Energy Minister made two orders

existing and evolving regulatory frameworks. This gives

under s 16Y of the National Electricity (Victoria) Act 2005

rise to an assortment of legal risks and issues.

(Vic) (NEVA) disapplying or modifying provisions of the

In 2025 to date, there have been no identified climate change litigation cases involving the planning or operation of electricity transmission networks under the narrow definition applied in this Review. But the recent disputes and regulatory activity we outline below give a flavour of the multifaceted legal risks in this sector that are driven by climate change and the energy transition.

The augmentation of transmission networks will remain an ongoing source of litigation and regulatory action for the foreseeable future.

National Electricity Law (Law) and National Electricity Rules (Rules) in Victoria to expedite planning and early works for two major transmission projects in western Victoria: Western Renewables Link and the Victoria to NSW Interconnector West (VNI West). The orders disapplied existing Rules governing the assessment of the preferred route for the VNI West project, and directed AEMO to proceed with a particular route. The Minister’s reasons for making the orders emphasised the urgency of upgrading the transmission system to accommodate new sources of renewable energy.112 A community organisation (the Alliance) objected to the proposed route and commenced a judicial review proceeding alleging the orders were invalid. In December 2023, the Supreme Court of Victoria dismissed the proceeding.113 In late 2024, the Victorian Court of Appeal

112. Moorabool and Central Highlands Power Alliance v Minister for Energy [2024] VSCA 201, [34].

113. Moorabool and Central Highlands Power Alliance v Minister for Energy [2023] VSC 774.

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T

HE CONSTRUCTION AND augmentation

43

THE PRESSURES THAT BROUGHT ABOUT THE DISPUTE HAVE BEEN HEAVILY DRIVEN BY THE URGENCY AND COST OF THE ELECTRICITY TRANSMISSION BUILD-OUT. THOSE PRESSURES WILL NO DOUBT RESULT IN FUTURE DISPUTES ARISING OUT OF OTHER MAJOR PROJECTS IN THE TRANSITION TO RENEWABLE ENERGY. dismissed the Alliance’s application for leave to appeal.114 The Alliance contended on appeal that the orders were invalid because: » the Victorian Minister had no power to disapply or modify provisions of the Law or Rules relating to the functions of the Australian Energy Market Operator (AEMO) as a National Transmission Planner and, by purporting to disapply the network planning requirements for VNI West, the orders were inconsistent with s 6 of the NEVA; and » the Victorian Minister had no power to make an order, which required AEMO (as the Victorian transmission 44

operator) to publish a report, together with Transgrid (the NSW transmission operator), identifying a

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particular route as the ‘preferred option’ for VNI West.

new 330kV interconnector between southern NSW and South Australia. The PEC interconnector is intended to facilitate the export of renewable electricity from South Australia into NSW, and assist in supporting the stability of the South Australian network as it rapidly transitions to a largely renewable-powered grid.

In late 2022, in the face of extreme cost pressures following post-Covid supply chain shocks and extensive flooding of and around the Murray River, Clough entered voluntary administration, and Elecnor exercised ‘step-in’ rights to carry out the JV in its own right, as contractor to Transgrid. A dispute ensued between Elecnor and the trustees of Clough’s Deed of Company Administration about whether Elecnor had validly acquired Clough’s interest in the JV, and was required to contribute to claims that Transgrid had made on Clough’s bank

The Court held that, because the orders had disapplied

guarantees and insurance bonds. Elecnor commenced

the Rules that would otherwise have governed the

proceedings in the NSW Supreme Court in late 2024, to

network planning process, there was no inconsistency

which Clough responded by filing a cross-claim.

between the orders and AEMO’s functions as the National Transmission Planner. Even if the Victorian Minister’s stipulation to AEMO of the preferred route for VNI West derogated from the national scheme under the Rules, it was nonetheless within the Victorian Minister’s powers to do so in Victoria.115 This case highlights the complexity and fragmentation of the regulatory frameworks for transmission network planning— particularly interstate interconnectors, and the scope this complexity presents for objectors to challenge the exercise of government powers through administrative law proceedings.

Transmission project disputes: Elecnor Australia v Clough Projects Australia Elecnor and Clough were JV partners in the construction of the NSW portion of Project EnergyConnect (PEC), a

Elecnor applied to have the cross-claim stayed and referred to arbitration on the basis it was covered by an arbitration clause in the JV deed. Clough contended that, if its cross-claim was to be stayed, then Elecnor’s primary claim should be stayed also. In June 2025, the Court upheld Elecnor’s stay application over part of Clough’s cross-claim, and dismissed Clough’s cross-application116 such that discrete parts of the dispute will be determined in parallel by arbitration in Singapore, and in court in NSW. Clough has appealed the decision dismissing its cross-claim.

At face value, this is a conventional (albeit complicated) infrastructure project dispute. But the pressures that brought about the dispute have been heavily driven by the urgency and cost of the electricity transmission build-out. Those pressures will no doubt result in future disputes arising out of other major projects in the transition to renewable energy.

114. Moorabool and Central Highlands Power Alliance v Minister for Energy [2024] VSCA 201.

115. Moorabool and Central Highlands Power Alliance v Minister for Energy [2024] VSCA 201, [38]-[40].

116. Elecnor Australia Pty Ltd v Clough Projects Australia Pty Ltd [2025] NSWSC 610.

Regulatory valuations: AER approves conversion of Basslink interconnector to a regulated transmission service

Network resilience: Transmission tower collapse and electricity outages affecting Broken Hill in October 2024

Basslink, a 500MW undersea transmission cable, is

In October 2024, an intense storm caused seven

currently the sole electricity interconnector between

transmission towers to collapse south of Broken Hill,

Tasmania and Victoria. In June 2025, the Australian

in western NSW. Similar electricity transmission tower

Energy Regulator (AER) accepted Basslink’s application

collapses have occurred with increasing regularity over

to convert its market (unregulated) transmission service

recent years. Later the same day, a separate storm caused

to a prescribed (regulated) transmission service under

18 transmission towers to collapse at the northern edge of

the Rules. Instead of operating purely under an existing

the South Australian transmission network. In February

contract with Hydro Tasmania, Basslink will become part

2024, six transmission towers in Victoria collapsed.

of the regulated electricity transmission regime under the

While EnergySafe Victoria decided in July 2025 not to

Rules.

prosecute AusNet for the incident,118 AusNet has since

117

The AER assessed whether converting Basslink to a regulated link is likely to promote efficient investment in, operation and use of, electricity services for the longterm interests of consumers, including the achievement of emissions reduction targets. On balance, the AER concluded that converting Basslink will promote these outcomes; including by ensuring that Basslink operates as an open link, allowing more efficient electricity flows.

been convicted for failing to reinforce other transmission towers in Victoria as required under the Electricity Safety Act 1998.119 Previously, in 2016, the collapse of transmission towers elsewhere in South Australia precipitated a state-wide blackout. The intense “minicyclone” downdrafts that cause these tower collapses appear to be becoming more frequent as a result of climate change.

Returning to Broken Hill, the collapse of towers on the

counterfactuals, including development of the Marinus

sole transmission line into the region occurred while one

Link, a proposed second (and larger) interconnector

of two backup generators was out of service for planned

between Tasmania and Victoria, and the likelihood

maintenance. Over the following days, the remaining

that its construction may reduce demand for Basslink’s

backup generator failed, or operated at reduced output,

services and Basslink’s ability to exercise market power.

on a number of occasions, resulting in blackouts and load

Having been converted to a regulated link, the AER is

shedding events.

now making a revenue determination which is expected

The tower collapses, and subsequent outages, are

in early 2026. The determination will set the allowed

presently the subject of regulatory investigations by

revenue, regulatory asset base (RAB), and sharing of

the AER and the Independent Pricing and Regulatory

costs between Tasmanian and Victorian consumers.

Tribunal (IPART); and was the subject of a NSW

Determining the RAB for Basslink, an aged asset

Parliamentary inquiry in early 2025. In its final report,

plagued by reliability concerns, is potentially a difficult

the Parliamentary committee highlighted the need

task, and will have a very large effect on the regulated

to ensure the resiliency of network infrastructure to

transmission prices set by the AER. The setting of initial

increasing incidences of extreme weather events and

RABs for other regulated networks has historically

natural disasters, as well as the importance of exploring

been a contentious and much-litigated issue; it will be

renewable energy and storage technologies as backups,

interesting to see whether the AER’s determination is

or alternatives, to conventional transmission network

challenged by judicial review.

supply. 120

117. www.aer.gov.au/industry/registers/determinations/basslink-determination-2025-30/final-decision-basslink-conversion.

118. www.energysafe.vic.gov.au/media-centre/news/detailed-energy-safe-investigation-anakie-transmission-tower-collapseconcludes 119. www.energysafe.vic.gov.au/media-centre/news/court-finds-ausnet-delays-transmission-tower-upgrades-put-community-safety-risk 120. https://www.parliament.nsw.gov.au/committees/inquiries/Pages/inquiry-details.aspx?pk=3084

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The AER had regard to potential circumstances and

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46

ENVIRONMENT (CTH AND STATE ACTS)

By ZOE MAUD SC and SOPHIE MOLYNEUX

T

HE IMPACTS THAT mining and energy proj-

end user. Scope 3 emissions often constitute the largest

ects will have on the environment remain the

source of greenhouse gas emissions of a mining or energy

focus of cases brought under environmental

project. For example, in Denman121 it was noted that Scope

legislation in the past year.

3 emissions would comprise 98 per cent of the projected

In the three cases involving decisions under environmental legislation determined this year, the treatment of “Scope 3” greenhouse gas emissions has been the subject of particular scrutiny. “Scope 3” emissions are the indirect

emissions from the proposed extension of the Mount Pleasant Coal Mine. Scope 3 emissions are not required to be reported under the National Greenhouse and Energy Reporting Act 2007 (Cth).122

emissions from a project, such as the emissions arising

In two of the cases determined in 2025, the proponent’s

from the combustion of the extracted fuel source by an

calculations of the project’s greenhouse gas emissions were

121. Denman Aberdeen Mussellbrook Scone Healthy Environment Group Inc. v MACH Energy Australia Pty Ltd [2025] NSWCA 163 at [10] (Denman) 122. See National Greenhouse and Energy Reporting Act 2007 (Cth), ss 7, 10; National Greenhouse and Energy Reporting Regulations 2008 (Cth), rr 2.23 and 2.24.

identified as containing errors and requiring correction

considered but the combination of the statement that the

(see Environmental Advocacy123 at [19] and in Rolleston124 at

effects of climate change will still be “felt globally” and the

[170]-[172]). In Environmental Advocacy, the proceeding

absence of reference to the impact of this on the locality

was resolved by the parties agreeing certain amendments

specifically is to my mind a powerful indicator that the

to the environmental authority, which the Court accepted.

Commission did not (as required) consider the impact of

In Rolleston, the Court said of the error in the calculation of

climate change on the locality. The fact that the impacts of

Scope 3 emissions that it was “alarming that a global mining

climate change may have been “uncontroversial” or not

company such as Glencore can make such a basic error in

in dispute before the Commission does not mean that the

their calculations. It was not a small error; it was in error

Commission was not required to consider those impacts

by a significant factor.” Nonetheless, the Court noted that

nor that it can be inferred that the Commission did so.

the figures had been corrected and that the proponent had identified “almost endless” mechanisms and safeguards

There are a number of matters to watch in this category.

relevant to GHG emissions125. The Court went on to note

In July and August 2025, the Land Court of Queensland

that the scale of emissions from a project were “difficult

heard seven weeks of evidence regarding the climate

to judge” and that the Court had been “swamped with

change impacts of a proposed new coal mine in

documentation and with data” and that although the data

Queensland’s Bowen Basin. Having regard to those

indicated the contribution to global emissions was described

impacts, the Court will have to determine whether to

as “small or low”, that was “not a particularly useful

recommend approval of an environmental authority

metric126”. Ultimately, the Court decided to recommend

under the Environment Protection Act 1994 (Qld).

that the environmental authority be granted, noting that the proponent had filed “a significant number of expert reports… to answer the submissions and objections made” and that “no active objector [had] participated in the hearing to clarify or challenge the evidence127”.

Three applications for judicial review were filed in the Federal Court in relation to the Minister for Environment and Water’s approval of the North West Shelf Extension, a proposed extension of a gas plant on the Burrup the Australian Conservation Foundation alleges that the

approve the extension of a coal mine for a period of 22

Environment Minister failed to take the project’s climate

years, on the basis that the decision-maker had failed to

impacts into account.129

to address Scope 3 emissions, and/or had failed to consider how climate change would impact the locality of the project specifically. The first of these grounds failed but the Court accepted the second. Ward P (with whom Adamson JA substantially agreed (although preferring to express her reasons separately) and Price AJA agreed) said128:

On 30 October 2025, five years after delivery by Prof Graeme Samuel AC of the report of his review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the government introduced to the House of Representatives a package of seven bills to reform the Act, including the Environment Protection Reform Bill 2025 (which passed on 28 November 2025). The reforms are directed to achieving stronger environmental

There is nothing in the Commission’s reasons to indicate

protection and restoration, more efficient and robust

that the Commission, having accepted that scope 3

project approvals and greater accountability and

emissions would make up 98 per cent of the Project’s GHG

transparency in environmental decision making. The

emissions and that those emissions would contribute to

reforms have sparked significant debate, and have been

global climate change, went on to consider the impact of

criticised by environmental groups for, amongst other

climate change on the locality (which was the required

things, failing to impose a requirement that decision-

causal enquiry). I accept that the absence of reference to a

makers consider climate harm in every decision.

matter will not necessarily mean that the matter was not

123. Environmental Advocacy in Central Queensland Inc. v Chief Executive, Department of Environment Tourism, Science and Innovation [2025] QLC 7 124. Rolleston Coal Holdings Pty Ltd v Environmental Advocacy in Central Queensland Inc. [2025] QLC 22 (Rolleston) 125. Rolleston at [285] 126. Rolleston at [286] 127. Rolleston at [291] 128. Denman at [108] 129. https://envirojustice.org.au/legal-work/climate-justice/the-north-west-shelf-extension-case/#block_15b93553dc64a5923adc9c0c e544e116

C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | E N V I R O N M E N T (C T H A N D S TAT E AC T S )

In Denman, the applicant challenged a decision to

consider whether to impose conditions on the approval

47

Peninsula in Western Australia. Amongst other grounds,

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FREEDOM OF INFORMATION LAW AND CLIMATE CHANGE MATTERS

By DR KYLIE WESTON-SCHEUBER 49

Background refusal rates and the use of exemptions had increased,

are commonly made in the context of legal

and that 61 per cent of decisions since 2015 had resulted

decisions of government departments connect-

in a substitution of decision by the information

ed to climate change, and documents informing

commissioner.135 Accordingly, this is a fertile area for

those decisions. Many of these involve FOI requests to the federal Department of Climate Change, Energy, the Environment and Water and similar bodies at state level.

litigation.

A party who seeks to challenge a decision of a Commonwealth department can seek review before the

Such requests are commonly resisted on the basis of

Office of the Australian Information Commissioner136

a range of exemptions, including legal professional

and subsequently to the Administrative Review

privilege,

130

commercial interest, personal privacy, 131

Cabinet documents,

133

132

and deliberative processes,

134

Tribunal.137 The Tribunal hears the matter afresh on the evidence before it and does not merely review the

contained in the Freedom of Information Act 1982 (Cth)

previous decision for error. Similar review processes exist

(FOI Act).

at State level.

In 2021, the Australian Conservation Foundation

There have been a number of recent challenges to FOI

examined data on FOI requests made in environmental

refusals at Commonwealth and State level in this area.

matters over the previous five years. They found that

130. Freedom of Information Act 1982 (Cth) (FOI Act) s 42.

131. FOI Act s 47.

132. FOI Act s 47F. 133. FOI Act s 34.

134. FOI Act s 47C. 135. ACF, Access denied: How Australia’s freedom of information regime is failing our environment, 2021, < https://canopy.acf.org.au/m/2e7f3a42061d8d9a/original/ACF_FoI_report.pdf?_gl=1*dqqgqf*_ gcl_au*MjU4NTcyNjEzLjE3NjI0NzgwMTA.*_ga*MTU5NTkzNjE2NS4xNzYyNDc4MDEw*_ga_ F2SYMWY8QD*czE3NjI0NzgwMTAkbzEkZzEkdDE3NjI0Nzg0NDckajYwJGwwJGgw> 136. FOI Act s 55K. 137. FOI Act s 57A.

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F

REEDOM OF INFORMATION (FOI) requests

Recent cases at Commonwealth and State level Patrick v The State of South Australia138 concerned

material made under s 42 were found to be justified since they were made for the dominant purpose of providing legal advice and did not concern merely operational,

of the President of the South Australian Civil and

administrative or policy matters.141

Ombudsman to refuse the applicant access to documents sought from the Department of Premier and Cabinet pursuant to the Freedom of Information Act 1991 (SA) (FOIA SA). The application concerned ministerial briefings, correspondence with the Minister for Climate Environment and Water and substantive reports or briefs generated by Infrastructure SA in relation to a proposed desalination plant at Port Lincoln.

All redactions of material made under s 47 were conditionally exempt since they satisfied the definition in the Act. The branch head within the relevant branch of the Department gave evidence concerning the public interest, however Senior Member Manetta found that there were no factors favouring withholding access in the public interest (s 11(5)(a)). It was noted that s 3(1) of the FOI Act provides that the objects of the Act include giving access to information held by the Government by providing for

Eighteen documents were identified in relation to the

a right of access per se. This favoured access to the brief

application and the appeal concerned three of those

regardless of whether it may inform current debate.

documents. The documents were withheld on the basis of the Cabinet documents exemption.

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Administrative Review Tribunal. Certain redactions of

an application for leave to appeal against a decision Administrative Tribunal affirming a decision by the

50

The redactions were challenged on review to the

In response to an argument by the agency that briefs are prepared by departmental officers in the knowledge

The Court interpreted the words “information concerning

the brief will remain confidential, it was noted that

any deliberation or decision of Cabinet” in s 1(1)(e) of the

federal public servants must have become accustomed

FOIA SA as a “broad” phrase, based on use of the word

to their documents being made available under the FOI

“concerning”. The Court found that the text extended to

Act, which was passed more than 40 years ago. Any

disclosures concerning decisions or deliberations of Cabinet,

concerns that disclosure might impede the provision of

rather than just to the disclosure of them. Unlike the

free and frank advice were addressed by reference to the

Commonwealth and Victorian Acts, the phrase appeared

Australian Public Service values that all public servants

to extend to documents, which would disclose the subject

are bound by.142

matter of Cabinet deliberations. The mere fact that a document has been submitted to Cabinet was not sufficient; the information disclosed must be identifiable as the subject matter of Cabinet deliberations.139 Accordingly, the relevant documents were exempt from disclosure.

In Patrick v Secretary, Department of Climate Change, Energy, the Environment and Water140 Senator Rex Patrick sought access to a ministerial briefing note for the Minister for Environment and Water regarding salmonfarming operations in Macquarie Harbour and the possible impact on the endangered Maugean skate.

The relevant redactions of material made under s 47B were found not to be conditionally exempt since they would neither damage relations nor reveal confidential communications between the Commonwealth and a State.

There was no need to consider s 11(5)(a) as a result.143 ‘AQL’ and Department of Climate Change, Energy, the Environment and Water (Freedom of information)144 concerned an application to access documents relating to a residential development containing draft advice to the Minister regarding s 70 of the EPBC Act. The application was rejected initially since parts of the document were

Redactions in the brief provided to Mr Patrick were

found to be exempt under the legal professional privilege

made on the basis of legal professional privilege (s 42),

exemption (s 42 FOIA), the deliberative processes

deliberative matter conditional exemption (s 47) and

exemption (s 47C) and the personal information

the exemption for material that damages relations

exemption (47F). The applicant clarified that they did

between or divulges confidential information between

not seek access to personal information and therefore the

Commonwealth and a State (s 47B).

s 47F material was beyond scope of the review.

138. [2025] SASCA 108 139. [2025] SASCA 108 [37].

140. [2025] ARTA 535 (17 Feb 2025) (Senior Member Manetta) 141. Patrick [14]-[76].

142. Patrick [16]-[41].

143. Patrick [53], [56].

144. [2024] AICmr 244 (19 November 2024)

THE EXPANSION OF THE CABINET DOCUMENTS EXEMPTION IS PARTICULARLY LIKELY TO HAVE AN IMPACT ON FOI REQUESTS RELATING TO BRIEFINGS AND DOCUMENTS RELATING TO GOVERNMENT ACTION AND DECISION-MAKING ON CLIMATE CHANGE. Upon review, the relevant material was found to be

departmental investigation under environmental law)

exempt from disclosure under s 42 since it was prepared

and ‘AXW’ and Department of Climate Change, Energy, the

for the dominant purpose of providing legal advice.

Environment and Water (No.3) (Freedom of information)151

Common law concepts of legal professional privilege

(application for site inspection reports prepared by the

were applied to this determination.

department on the Spectacled Flying Fox colony).

Certain material was conditionally exempt under s 47C

Proposed changes to Commonwealth FOI regime

145

since it was a deliberative matter created for the purposes of a deliberative process. The Commissioner had regard to the FOI Guidelines which provide guidance on matters to consider when determining whether material is conditionally exempt under s 47C. However, it was found that giving the applicant access to this material was not, on balance, contrary to the public interest (s 11A(5)).

Disclosure would promote the objects of the FOI Act and enhance the scrutiny of decision making generally and inform debate on matters of public importance.146

On 3 September 2025, the Attorney-General introduced the Freedom of Information Amendment Bill 2025 (Cth) which has now been referred to the Legal and Constitutional Affairs Committee. Changes proposed include expanding the scope of the Cabinet documents exemption, a new power for agencies to refuse to deal with requests that are vexatious or an abuse of process, and the introduction of a new practical refusal processing cap. It remains to be seen whether and how,

47C; it did not contain a deliberative matter since it was

if implemented, these reforms will impact on decision-

factual information, some of it was publicly available,

making in relation to these types of cases.

recommendation and did not contain ‘deliberation’ or ‘consultation’.147

In relation to the Cabinet documents exemption, amongst other changes, it is proposed to expand the scope to documents where a “substantial purpose” for preparation

Other recent cases at Commonwealth level involving

of the document was for consideration by the Cabinet,

climate change related applications include ‘AMB’ and

rather than for the “dominant purpose”. The expansion of

Department of Climate Change, Energy, the Environment

the Cabinet documents exemption is particularly likely to

and Water (Freedom of information)148 (correspondence

have an impact on FOI requests relating to briefings and

with Delta Electricity company about UNGI program

documents relating to government action and decision-

and Vales Point Power Station), Kim Taylor and

making on climate change.

Department of Climate Change, Energy, the Environment and Water (Freedom of information)149 (documents on classification of woodlands as a “threatened ecological community”), Lisa Cox and Department of Climate Change, Energy, the Environment and Water (No.1) (Freedom of information)150 (documents relating to

Further, with the announcement in September 2025 of the Australian Government’s adoption of a 2035 climate change target of 62 per cent to 70 per cent reduction on 2005 emissions,152 it is likely that FOI requests will be made in relation to the setting of those targets and the means of meeting them.

145. AWL [18], [46].

146. AQL [48]-[49].

147. AWL [37].

148. [2024] AICmr 152 149. [2024] AICmr 84 150. [2024] AICmr 153 151. [2025] AICmr 159 152. Prime Minister of Australia, “Setting Australia’s 2035 climate change target”, 18 September 2025, < https://www.pm.gov.au/media/ setting-australias-2035-climate-change-target>.

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reason relating to requests that are likely to exceed the

Other material was not conditionally exempt under s

the material did not contain any opinion, advice or

51

PHOTO CREDIT:Denny Kisner/ISTOCK

HEALTH LAW AND PERSONAL INJURIES

By DR IAN FRECKELTON AO KC 53

Introduction and medical attention in the event of sickness”.154 This

are likely to develop in relation to the effects of climate

has been interpreted as dependent upon the availability,

change, health law and personal injury law, including

accessibility, acceptability and quality of services,155 all of

wrongful death actions, are prominent.

which have the potential to be affected by climate change.

Health has been recognised as “a fundamental human

The correlation between the impact of climate change

right indispensable for the exercise of other human

and health has been explicitly recognised by the United

rights. Every human being is entitled to the enjoyment

Nations, including by Resolution 76 of 2022, “The

of the highest attainable standard of health conducive

Human Right to a Clean, Healthy and Sustainable

to living a life in dignity.”

Environment”. However, what has been described as

153

A challenge is to enforce this

right by domestic, as well as international litigation.

The International Covenant on Economic, Social and Cultural Rights provides the most comprehensive article on the right to health in international human rights law.

“a pervasive discourse of denial” in relation to climate change156 has the potential to blur the real and foreseeable effects of climate change on health and services necessary to achieve the highest attainable standard of health and to provide support for governments’ refuge in the defence

In accordance with article 12.1 of the Covenant, States

of “climate overloading”, the proposition that climate

parties recognise “the right of everyone to the enjoyment

policy is a matter of high policy, not generally amenable

of the highest attainable standard of physical and mental

to civil actions, including those framed in negligence.

health”, while article 12.2 enumerates a number of “steps to be taken by the States parties ... to achieve the full

International litigation

realization of this right” including (d): “The creation

A series of important legal actions has attempted to

of conditions which would assure to all medical service

obtain recourse for persons whose health has been

153. Convention on Economic, Social and Cultural Rights General Comment No 14: The Right to the Highest Attainable Standard of Health (art), Adopted at the 22nd Session of the Committee on Economic, Social and Cultural Rights, 11 August 2000 (Doc E/C 12/2000/4) < https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WRGS/Health/GC14.pdf>.

154. International Covenant on Economic, Social and Cultural Rights, entered into force 3 January 1976, < https://www.ohchr.org/en/ instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights>.

155. Convention on Economic, Social and Cultural Rights General Comment No 14, n1.

156. See DW Patterson, “The Right to Health and the Climate Crisis” (2021) 23(2) Health and Human Rights 109.

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Amongst the areas of recourse under litigation that

adversely affected by climate change, some utilising the

associated with climate change violated the fundamental

right to life in international jurisprudence.

constitutional rights to life and dignity. The Court held

One of the most internationally influential examples of climate change litigation with direct tortious relevance

Fundamental rights, like the right to life (Article 9) which

to health was the decision of the Supreme Court of the

includes the right to a healthy and clean environment

Netherlands in Urgenda v Netherlands157. Urgenda was a

and right to human dignity (Article 14) read with

foundation established under Dutch law. It (and a group

constitutional principles of democracy, equality, social,

of 900 Dutch citizens) sued the Netherlands asserting

economic and political justice include within their ambit

that it was not doing enough to prevent dangerous

and commitment, the international environmental

climate change, by curbing its greenhouse emissions,

principles of sustainable development, precautionary

primarily CO2, framing its claim in tort law and a breach

principle, environmental impact assessment, inter and

of Articles 2 (right to life) and 8 (right to privacy) of the

intra-generational equity and public trust doctrine.

European Convention on Human Rights. It succeeded

[…] The existing environmental jurisprudence has to be

with the Supreme Court finding that the Netherlands

fashioned to meet the need of something more urgent and

was obliged to take suitable measures to respond to the

overpowering, i.e., Climate Change.161

real and immediate risk to people’s lives or wellbeing:

54

recommendations of Pakistan’s National Climate Change

Articles 2 and 8 ECHR also encompasses the duty of the

Policy “to ensure that climate change is mainstreamed

State to take preventive measures to counter the danger,

in economically and socially vulnerable sectors of the

even if the materialization of that danger is uncertain.

economy and to steer Pakistan towards climate resilient

This is consistent with the precautionary principle.158

development”.162 Innovatively, the Court ordered the

It held that the Dutch government owed Urgenda a measures because of the severity of the risk the emissions

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It concluded that it was essential to implement the

The obligation to take appropriate steps pursuant to

duty of care to take sufficient climate change mitigation

that:

posed and ordered it to reduce national greenhouse emissions by 25 per cent by 2020.159

establishment of a Climate Change Commission to assist the Court to monitor progress and implementation of climate change guidelines.

Pending United States litigation In a significant action filed on 28 May 2025 in the Superior

In the later important decision of the Lahore High

Court of Washington for King County, Leon v Exxon & Ors,

Court Green Bench of Ashgar Leghari v Federation of

a claim for damages for wrongful death has been brought

Pakistan,160 written by Shah CJ, a tax lawyer and farmer

by the daughter of Juliana (Julie) Leon.163 It is the first US

filed public interest litigation alleging that the inaction

wrongful death case directly attributing a human fatality to

of the government of Pakistan (and the government of

corporate actions exacerbating the climate crisis. It has the

the Punjab) and its delay in implementing the National

potential to have significant international ramifications.

Climate Change Policy and addressing vulnerabilities

157. (2020) 59 ILM 811; ECLI: NL: HR: 2019: 2007, <https://cdn.climatepolicyradar.org/navigator/NLD/2015/urgenda-foundation-vstate-of-the-netherlands_fcb4bfb035f824ccd4567dc2a9974d92.pdf>.

158. ibid, at 5.3.2.

159. See too B Mayer, “The Contribution of Urgenda to the Mitigation of Climate Change” (2022) 35(2) Journal of Environmental Law 167; A Nollkaemper and L Burgers, “The State of the Netherlands v Urgenda” (2020) 59(5) International Legal Materials 811; K Lantz, “The Netherlands v Urgenda Foundation: Lessons for Using International Human Rights Law in Canada to Address Climate Change” (2020) 41 Windsor Review of Legal and Social Issues 145; E Stein and AG Castermans, “Case Comment—Urgenda v the State of the Netherlands: The “Reflex Effect”—Climate Change, Human Rights, and the Expanding Definitions of the Duty of Care” (2017) 13(2) McGill Journal of Sustainable Development Law 303.

160. Ashgar Leghari v Federation of Pakistan (4 September 2015) Lahore High Court Green Bench, WP No 25501/2015; <https://elaw. org/wp-content/uploads/archive/attachments/publicresource/pk.leghari.090415_1.pdf>. See C Higham. J Setzer and E Bradeen, Challenging Government Responses to Climate Change Through Framework Litigation (Grantham Research Institute on Climate Change and the Environment & Centre for Climate Change Economics and Policy, September 2022) < https://www.lse.ac.uk/ granthaminstitute/wp-content/uploads/2022/09/Challenging-government-responses-to-climate-change-through-frameworklitigation-final.pdf>; E Barritt and B Sediti, “The Symbolic Value of Leghari v Federation of Pakistan: Climate Change Adjudication in the Global South” (2019) 30(2) King’s Law Journal 203; D Ziebarth, “Climate Law and Human Rights: How Do Courts Treat Rights in Their Decisions?” (2024) 57(2) University of Illinois Chicago Law Review 203.

161. Ashgar Leghari v Federation of Pakistan (4 September 2015) Lahore High Court Green Bench, at [7].

162. Ashgar Leghari v Federation of Pakistan (14 September 2015) Lahore High Court Green Bench, WP No 25501/2015< https://elaw. org/wp-content/uploads/archive/attachments/publicresource/pk.leghari.091415_1.pdf>, at [9].

163. Leon v Exxon Mobil Corporation, Complaint for Damages: Wrongful Death, Case #:25-2-15986-8SEA, 28 May 2025 <https://www. courthousenews.com/wp-content/uploads/2025/05/leon-vs-exxon-complaint.pdf>.

It is alleged that Julie died in 2021 from hyperthermia

State product liability or public nuisance legislation.164

in the course of a “heat dome” on a day when the

In relation to one of the defendants, Olympic Pipe

temperature peaked at 108 degrees Fahrenheit (42

Company LLC, the Court concluded there was “little

degrees Celsius), the third consecutive day over 100

merit in Olympic’s argument that it had no duty to warn

degrees Fahrenheit (37.7 degrees Celsius), in the course

the public about the negative impacts of fossil fuel use

of the hottest and deadliest heatwave ever experienced in

on human health because it only transports petroleum

the Pacific Northwest. While, as a resident of temperate

products and ‘does not otherwise interact with the public

Western Washington, Julie’s death in this way was said

about the products it transports.” The case remains

not to be imagined by her, by contrast, it is claimed that

pending in the King County Superior Court.

the defendants, who are manufacturers, distributors and sellers of fossil fuels, were in a position to appreciate

Australian jurisprudence

differently because of their awareness for decades that

The most significant Australian decision to this point

their products were altering the earth’s atmosphere. The

that involves an action based in part in tort and sought to

claim contends that the defendants have made a large

leverage off earlier overseas decisions is that of Wigney

number of misrepresentations and been responsible for

J in Pabai v Commonwealth of Australia (No 2)165. It

omissions in provision of material information which

originated from a representative claim by Torres Strait

foreseeably would claim lives, such as the life of Julie.

Islanders who maintained that the response by the

It is contended that an event as severe as the one during which Julie died was “virtually impossible” without anthropogenic warming but that the defendants “leveraged their social capital and expertise in climate science research to mount a vast denial and disinformation campaign” over a period of decades, and then more latterly continued to promote fossil fuel products without warning of the dangers, thereby delaying the move to alternative energy markets (at para 1.11). This shift in approach by the defendants is characterised by the plaintiff as the superficial acceptance of climate change; while continuing to sow uncertainty about its causes and consequences; downplaying the

be, inadequate in that it had not done enough to protect them from the impacts of climate change. In particular, it was claimed that the Commonwealth had failed to meet greenhouse gas emissions reduction targets that it, itself, had set and communicated to the United Nations Framework Convention on Climate Change in 2015, 2020, 2021 and 2022. An alternative case on behalf of the applicants focussed on the Commonwealth’s actions in respect of the funding of an important infrastructure project in the Torres Strait Islands which involved the construction of seawalls on some of the islands that were seen to be the most vulnerable to rising sea levels and extreme sea level events.

need for urgent action to reduce fossil fuel consumption;

The action was framed in negligence with the applicants

capitalising on growing misunderstanding and scepticism

alleging that the Commonwealth owed a duty of care

about climate change; and thereby delaying climate

to all Torres Strait Islanders to take reasonable steps

mitigation and adaptation measures that could have

to protect them, their traditional way of life, and the

prevented Julie’s death. The case is framed as a wrongful

Torres Strait and its marine environment, from what

death and survival action; a product liability case in

were said to be the current and projected impacts of

the form of a failure to provide proper warnings; and

climate change on the Torres Strait Islands. These were

engagement in unlawful action or omission to perform a

asserted to include the increase in global average surface

duty, constituting public nuisance.

temperature; ocean acidification; the increase in ocean

The action was remanded back to King County Superior Court on 28 October 2025 after the defendants removed the case to the US District Court (Western District of Washington at Seattle). In the remand application, the Court found that the defendants had not met the burden to show the matter could not be litigated under

55

temperature; sea level rise; flooding and coastal erosion; the increase in the size and frequency of extreme weather events; the harm and destruction of ecosystems and non-human species; and harm to human health. It was contended that the Commonwealth had a duty of care to take reasonable steps to ensure that, having regard to the best available science, it identified greenhouse

164. Leon v Exxon Mobil Corporation, Order Granting Motion to Remand, Case #: 25-1190 MJP, United States District Court Western District of Washington at Seattle < https://cases.justia.com/federal/district-courts/washington/ wawdce/2:2025cv01190/349738/72/0.pdf?ts=1761764834>.

165. [2025] FCA 796.

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sustaining and inflating demands for fossil fuels and

Commonwealth to climate change was, and continued to

gas emissions reduction targets which would prevent or

set by the Commonwealth were “not consistent

minimise the current and projected impacts of climate

with the need for Australia to drastically reduce its

change on the Torres Strait Islands, and also implement

greenhouse gas emissions consistently with the

such measures as were necessary to reduce Australia’s

recognised scientific imperative of keeping the global

greenhouse gas emissions consistent with those targets.

average temperature increase to those specified levels. In

The applicants sought various forms of relief, including damages to compensate them for, amongst other things, their collective loss of fulfilment of Ailan Kastom, the body of customs, traditions and beliefs that has sustained Torres Strait Islanders for generations. They alleged that

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the Commonwealth paid scant if any regard to the best available science.” (Judgment summary.) He also found that: The projected future impacts of climate change in the

had damaged their sacred sites and the burial grounds

Torres Strait Islands also paint a very bleak picture indeed.

of their ancestors, that as a result of climate change

The Torres Strait Islands and their traditional inhabitants

they were unable to engage in many of their traditional

are quite literally at the very frontline of climate change

ceremonies and customs, and that they were no longer

and its devastating impacts. Unless something is done

able to engage in many of their traditional and life-

to arrest global warming and the resulting escalating

sustaining activities, including hunting, gathering and

impacts of climate change, there is a very real risk that the

gardening. Above all, they claimed that climate change

applicants’ worst fears will be realised and they will lose

had effectively severed important aspects of their close

their islands, their culture and their way of life and will

connection with their traditional lands and seas.

become, as it were, climate refugees. That would, of course, be a devastating outcome. (Judgment summary.)

respects the applicants succeeded in eliciting from

However, Wigney J found that the applicants had not

Wigney J significant findings that were adverse to the

made out their primary case in negligence on the basis

discharge of its responsibilities by the Commonwealth

that the Commonwealth did not owe the applicants

and telling observations about the impact of climate

the duty of care for which they contended. He found

change upon the applicants. For instance, he found that

it to be “abundantly clear” that the issues raised by the

when the Commonwealth identified and set Australia’s

applicants’ posited targets duty of care and its alleged

greenhouse gas emissions reduction targets in 2015,

breach concern matters of core or high government

2020 and 2021, it failed to engage with or give any real or

policy and political judgments: “They are the very

genuine consideration to what the best available science

types of issues that the authorities … indicate should

indicated was required for Australia to play its part in the

not be subjected to a common law duty of care in

critically important global objective, enshrined in the

negligence, essentially because they are unsuitable for

Paris Agreement, of significantly reducing greenhouse

resolution by courts of law.”166 He found that it was

gas emissions and thereby moderating global warming

both inappropriate and impractical for the Court to pass

and reducing the prospects of the worst and most

judgment on the reasonableness of the Commonwealth’s

dangerous impacts of climate change. He observed that:

actions in relation to the setting of emissions reduction

The best available science was and is patently clear. To prevent the worst and most dangerous impacts of climate change, it was and is imperative for every country to take steps to drastically reduce their greenhouse gas emissions so as to ensure that the increase in the global average temperature is held to well below 2°C above pre-industrial

targets, given that they involve matters of high or core government policy and political judgment: “If judgment is to be passed in respect of the actions of the government in respect of such matters, that judgment should be passed at the ballot box by those who are responsible for electing the government, not in the courts.”167

levels, and to pursue efforts to limit the temperature

Further, even if the Commonwealth did owe Torres Strait

increase to l.5°C above pre-industrial levels. (Judgment

Islanders a duty of care which concerned the setting and

summary.)

communication of greenhouse gas emissions reduction

He concluded that the evidence adduced before him clearly indicated that the emissions reduction targets

166. n 126 at [855] 167. n 126 at [865]

greenhouse gas emissions targets in those three years,

climate change-related flooding and inundation events

Although ultimately their action failed, in significant 56

short, the evidence revealed that when it set Australia’s

targets, Wigney J was not persuaded that, in order to meet the targets duty of care, the Commonwealth was required to identify (and set) a target, having regard

to the best available science, which would prevent or

done: to “lead and coordinate and establish a coherent

minimise the current and projected impacts of climate

plan for the provision of funding” and would “provide

change in the Torres Strait Islands and then implement

access to predictable funding”. Therefore, he determined

measures necessary to reduce Australia’s greenhouse

that the Commonwealth was not required to exercise

gas emissions consistent with that target168. He found

the standard of care alleged by the applicants175. He also

that it was not open to find that the Commonwealth was

declined to grant declaratory or injunctive relief.

required as an aspect of its standard of care to set the best available science target and then implement measures to reduce Australia’s greenhouse gas emissions consistent with that target.169

The future for Australian litigation The decisions in the Netherlands and Pakistan, and the important Leon litigation currently underway in

In terms of causation, he declined to find that any

Washington highlight the significance of litigation that is

climate change impacts in the Torres Strait Islands that

framed in terms of both health rights and personal injury

flowed from any breach of the duty to set targets by the

law (as well as, potentially, product liability and public

Commonwealth could “be found to have played a part

nuisance).

in any actual harm suffered by Torres Strait Islanders in circumstances where those climate change impacts are so small that they cannot be measured or observed”170 over a short period, and considered in complete isolation, they would not have had “a material impact on climate change and its impacts in one small part of Australia.”171

The Pabai decision by Wigney J constitutes a contrast to the decisions in the Netherlands and Pakistan and is a significant setback for climate change litigants in Australia who seek to make the Commonwealth government accountable for failure to take more assertive measures in terms of climate change emissions targets. Importantly, part of the Pabai case was founded

that they had not adduced any “clear” evidence that

on claimed risks to life and health. However, in spite

they had suffered any personal injury as a result of the

of the foreseeably dangerous consequences of the

Commonwealth’s alleged breach of the targets duty172.

Commonwealth’s inaction, the principal impediment to

He declined to find that “fulfilment of Ailan Kastom is a

further litigation established by the decision is that the

right or interest the loss or harm to which is compensable

Commonwealth’s decision-making was found to reside

under the Australian common law of negligence.”

within “matters of core or high government policy and

. In

173

summary, he was not satisfied that the Commonwealth

political judgments”, a consideration that was found,

owed Torres Strait Islanders the targets duty of care and

conventionally,176 to have the result that an action

even if the Commonwealth was subject to that duty of

in negligence did not lie. This has been described as

care, the standard of care that the Commonwealth was

“climate overloading”,177 a strategy that takes a context-

required to exercise was not as alleged by the applicants.

specific, discrete question that could be susceptible to

Nor was he satisfied that any breach of the alleged

a legal answer (eg the threat to the health, customs etc

targets duty caused or materially contribute to the

of Torres Strait Islanders) and aggregates that question

compensable loss or damage . Nor was he persuaded

with the problem of climate change as a whole. Wigney

that a reasonable actor in the Commonwealth’s position

J’s preparedness to accept the “climate overloading”

would, in response to the relevant foreseeable risk that

argument of the Commonwealth is far from unusual.

Torres Strait Islanders might suffer harm if careless

However, whether its beguiling attraction, both by

decisions or actions were taken in relation to the funding

reference to legal precedent and its deference to the role

of the construction of seawalls, necessarily do what

of the ballot box, should prevail will ultimately need to be

the applicants alleged the Commonwealth should have

determined by the High Court.

174

168. at [1010] 169. n 126 at [1010] 170. n 126 at [1086] 171. n 126 at [1093] 172. n 126 at [1103] 173. n 126 at [1134] 174. at [1135] 175. at [1210] 176. See also Minister for the Environment v Sharma [2022] FCAFC 35.

177. See eg L Hicks, “‘Climate Overloading’ and Separation of Powers Arguments: Reflections on Pabai v Commonwealth of Australia” (25 September 2025) Australian Public Law < https://www.auspublaw.org/home/2025/09/climate-overloading-and-separationof-powers-arguments-reflections-on-pabai-v-commonwealth-of-australia-tphay>.

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Wigney J observed that the applicants had conceded

HUMAN RIGHTS

By EMRYS NEKVAPIL SC and SELENA BATEMAN Introduction on the intersection between human rights law and climate change in international and regional courts in 2025. Notable examples

include the European Court of Human Rights decision in Greenpeace v Norway178 and the advisory opinions on climate change of the Inter-American Court of Human Rights179 and the International Court of Justice.180 The ICJ’s Advisory Opinion is especially significant in clarifying and developing international human rights law for the purposes of the treaties to which Australia is party. The ICJ found that States have obligations under international human rights law to respect and ensure the effective enjoyment of human rights by taking whatever measures were necessary to protect the climate system and other aspects of the environment.181 The ICJ also observed that a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights including the right to life, health, food, and housing.182 These developments fortify the “rights trend” in climate litigation to legally ground States’ mitigation and adaptation obligations in human rights law. Domestically,

because of the lack of human rights-based causes of action at the federal and State level.

It is now well-established that climate change has

59

implications across the spectrum of human rights. The relationship between human rights and climate change as developing in the jurisprudence may be usefully categorized in three (intersecting) buckets: 1. Substantive rights are human (or constitutionally recognised) rights that are directly affected by impacts associated with climate change (such as rights to life, privacy and family life, culture); 2. Procedural rights are human (or constitutionally recognised) rights that facilitate improved climate policies and government action (such as rights to access to information, to access to justice, and to freely associate and peacefully assemble). These rights are routinely relied on in cases challenging environmental impact assessments and lack of transparency in environmental policy-making and processes.

3. Autonomous “environmental or climate” rights such as the right to a clean and healthy environment and the right to a healthy climate.183 This section outlines domestic developments across these categories.

178. Case of Greenpeace Nordic v Norway, European Court of Human Rights (Application No 34068) (28 October 2025).

179. Advisory Opinion OC-32/25, Inter-American Court of Human Rights (3 July 2025).

180. ICJ, Obligations of States in Respect of Climate Change (Advisory Opinion, 23 July 2025).

181. ICJ, Obligations of States in Respect of Climate Change (Advisory Opinion, 23 July 2025), [403].

182. ICJ, Obligations of States in Respect of Climate Change (Advisory Opinion, 23 July 2025), [393].

183. See eg Advisory Opinion OC-32/25, Inter-American Court of Human Rights (3 July 2025).

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T

HERE HAVE BEEN some key developments

the impacts of these developments have been limited

Substantive rights (including the right to a healthy environment)

ACT

In the domestic context, substantive rights arguments

Australian Capital Territory amended its Human Rights

are predominantly limited to State jurisdictions with

Act 2004 (ACT) to include a “right to a clean, healthy and

human rights legislation (i.e. Victoria, Queensland and

sustainable environment…”.186 This is the first and only

the ACT).

recognition of such a right in Australia and it follows over

As noted in the last update, in August 2024, the

one hundred nation States that have enshrined this right

Queensland The Queensland Land Court continues to consider and apply the principles in Waratah Coal Pty Ltd v Youth Verdict Ltd184 to assess human rights implications of recommending coal mine approvals within its recommendatory functions under the Land Court Act 2000 (Qld), the Mineral Resources Act 1989 (Qld) and Environmental Protection Act 1994 (Qld). The Court’s analysis has focused on the type and length of the

as the legislation prohibits commencing proceedings claiming that a public authority acted incompatibly with, or failed to give proper consideration to, the right (ss 40C(8)).188 This prohibition will be reviewed by the government in 2027.

energy transition), and the evidence of GHG mitigation strategies.

A significant development in international human rights

(and, where applicable, the project’s contribution to the

For example, in Re Sungela Pty Ltd & Anor 185 the Court recommended that the Ensham thermal coal mine extension not be approved unless and until the applicant shows real and significant progress towards mitigating C O M M BA R C L I M AT E C H A N G E R E P O RT 2 0 2 5 | H U M A N R I G H T S

There are currently no cases on foot relying on the right

Assessment of Australia’s international humanitarian obligations

project, its relative contribution to GHG emissions

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in their constitutions or domestic legislation.187

their GHG emissions. This recommendation was based on the acceptance that the right to life and right to protection of children are engaged and will be breached

by GHG emissions from the mine. Whether or not those breaches are “reasonable or justifiable” depended to an extent on the applicants’ GHG mitigation strategies.

The Court accepted that there is a continuing market

law is the ICJ’s observation in the Advisory Opinion that States have obligations under the principle of nonrefoulement where there are substantial grounds for believing that there is a real risk of irreparable harm to the right to life in Article 6 of the International Covenant on Civil and Political Rights if individuals are returned to their country of origin.189 This recognition, coupled with worsening climate impacts globally, is likely to lead to more issues being raised in the context of federal migration law concerning the content of Australia’s humanitarian obligations.

for thermal coal but emphasised the paucity of evidence

In 2427953 (Refugee),190 an applicant for a protection

before it on the project’s GHG mitigation strategies.

visa from Tonga relied on the Australian government’s

ACF v Whitehaven Coal is pending in the Land Court, with closing oral submissions listed for the first half of December 2025. This is the first time the Land Court has considered a large new coal mine since Waratah. Like Waratah, the evidence phase involved expert evidence about climate science, coal and energy markets and economics, but this time also included expert evidence

acknowledgment of the significant risk climate change poses to the Pacific, including Tonga. The Tribunal accepted Tonga was susceptible to increasing natural disasters and a range of climate change impacts, but found there was no persuasive evidence that the applicant would be denied disaster relief or social security.191

specifically about scenario modelling.

184. [2020] QLC 33.

185. [2025] QLC 5 186. Human Rights Act 2004 (ACT), s 27C. 187. UN Human Rights Council, Right to a healthy environment: good practices, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, 30 December 2019, UN doc A/ HRC/43/53, Annex II).

188. S40C(8) does not prevent a person making a claim in relation to another human right, even if the subject matter of the claim or part of the claim is the same, similar or related to the subject matter of a claim to which subsection (8) applies (s 40C(9)).

189. ICJ, Obligations of States in Respect of Climate Change (Advisory Opinion, 23 July 2025), [378].

190. [2024] ARTA 785.

191. [2024] ARTA 785, [45]- [49].

THE LEGAL LIMITS ON THE HUMAN RIGHTS TO ASSEMBLE AND ASSOCIATE ABOUT CLIMATE AND ENVIRONMENTAL ISSUES CONTINUE TO INTERSECT WITH THE ADMINISTRATION OF LAW, ESPECIALLY CRIMINAL LAW. We note that available DFAT country information

prosecuted for his part in an Extinction Rebellion

reports refer to climate impacts leading to internal and

protest, and he raised a defence of sudden or

external migration (Fiji, Nepal and Vietnam), water

extraordinary emergency, under s 322R of the Crimes

shortages (Iraq), and extreme weather events including

Act 1958 (Vic). The Magistrate ruled, before trial,

floods and heatwaves (Thailand).192

that expert evidence from Professor David Karoly (a

Procedural Rights

climate scientist) and Dr Robyn Gulliver (an expert on protest as a means of creating change) was irrelevant.

It is well-accepted that “procedural rights”, such as rights

Mr Homewood was convicted in the Magistrates

of access to information, to participate in government

Court of Victoria and an appeal on questions of law

decision making, and of access to justice facilitate and

is pending in the Victorian Supreme Court. That

contribute to effective climate and environmental

appeal will examine whether the defence of sudden

policies.193 The underlying assumption is that protecting

or extraordinary emergency is available to a climate

procedural rights like public participation increases

protester, as well as the relevance of expert evidence

the democratic legitimacy of decisions affecting the

when such a defence is raised.

environment and public education and awareness. Put

61

more pithily by Lord Leggat, “you can only care about

Protest cases The legal limits on the human rights to assemble and associate about climate and environmental issues continue to intersect with the administration of law, especially criminal law. For example: » In Brown v Victoria (pending), climate protesters assembling outside Melbourne Convention and Exhibition Centre in response to the International Mining and Resources Conference have brought a group proceeding in the Victorian Supreme Court. The plaintiffs suffered harm as a result of being capsicum sprayed by police and allege that the police’s conduct was unreasonable, unlawful and disproportionate. The plaintiffs also allege that police conduct engaged and limited the plaintiff ’s rights to freedom of movement and assembly under the Charter of Human Rights and Responsibilities Act 2006 (Cth).195 » In R v Homewood, Mr Bradley Homewood, was

192. https://www.dfat.gov.au/about-us/publications/country-information-reports.

193. See eg, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Aarhus Convention’); R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council [2024] UKSC 20, [18]-[21].

194. R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council [2024] UKSC 20, [21].

195. See, Further Amended Statement of Claim filed 21 March 2025: https://www.supremecourt.vic.gov.au/areas/group-proceedings/ imarc-protest-group-proceeding-class-action.

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what you know about”.194

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INSOLVENCY

By STEWART MAIDEN KC and PANAGIOTA PISANI

A

S IN 2024, the authors have not identified

included to allow the administrators to pursue an

any Australian insolvency-related climate

application to quadruple the remaining operating life of

change litigation cases which settled or

the mine.199 So far as the Court’s reasons disclose, the

remained on foot in 2025.

However, we

matters considered by the administrators in seeking the

have identified several environment-related insolvency

extension of time were limited to the potential increase

cases from which some limited relevant themes can be

in the sale price of the mine if its life were extended.200

distilled. Accordingly, to forecast how climate change

Any potential environmental impact of the mining itself

issues may intersect with insolvency law in 2026, one

(or secondary or tertiary environmental impact caused

must also look to emerging regulation and international

by use of the coal) does not appear to have factored in

developments alongside Australian case law.

their motivation, nor the court’s consideration. Indeed,

196

save to the extent that any environmental impact might have been harmful to creditors’ interests, it is strongly

In Australia, consideration of non-financial risks,

arguable that the administrators would have risked

including environmental risks, generally lie outside the

breaching their duties had they taken those matters

core concerns of insolvency law. Their intersection with

into account in determining whether to make either

restructuring or insolvency processes is limited, but

application.

can become salient in situations where, for example, a liquidator (by virtue of taking control of the company’s affairs) must confront statutory duties that would otherwise rest on the company’s directors.

In contrast, Re ACB Group Pty Ltd (in liq)201 demonstrates the direct impact that environmental legislation can have on insolvency practice. In that case, the company operated a chemical-blending facility. A serious fire

Three cases illustrate the distinction. In the first, Re

broke out at its premises.202 The company was placed

AQC Dartbrook Pty Ltd,

in liquidation.203 At the time of liquidation, it was in

197

voluntary administrators

of companies which owned and operated a coal mine

receipt of two ‘environmental action notices’ issued by

in New South Wales sought and were granted an

the Environment Protection Authority requiring it to

extension of time to convene the second meetings of the

undertake work to remove hazardous waste from the

companies’ creditors.198 The purposes of the extension

premises and prepare specified reports.204

196. The scope of our research was confined to investigating cases which had been reported publicly (whether due to a decision being published, or via press reports, or through some other means). The project was not resourced to interrogate court registries to determine the existence and extent of ongoing litigation which has not reached the public eye.

197. [2025] FCA 889 (Cheeseman J).

198. The second meeting of creditors determines the future of a company in voluntary administration. The three possible outcomes are: return of the company to control of its directors, entry into liquidation or execution of a ‘deed of company arrangement’ which provides for the future affairs of the company, its business and its assets.

199. ibid [44]-[49].

200. ibid [47].

201. [2025] FCA 90 (Button J) (Re ACB Group).

202. ibid [1]-[3].

203. ibid [1].

204. ibid [4].

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Themes emerging from the case law

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CERTAIN AUSTRALIAN COMPANIES REQUIRED TO REPORT UNDER CHAPTER 2M OF THE CORPORATIONS ACT MUST NOW PREPARE MANDATORY SUSTAINABILITY REPORTS. BREACH OF THOSE OBLIGATIONS MAY TRIGGER REGULATORY ACTION AND CONTRIBUTE OR LEAD TO FINANCIAL DISTRESS. In granting the liquidator directions that he was justified

be the result of a truncated marketing period.213 The

and acting reasonably

potential for an advantageous environmental outcome

205

by utilising the company’s funds

to comply with the requirements of the notices and

was increased by virtue of the fact that the creditors’ best

in approving the liquidator’s entry into a consultancy

interests were better served by such an outcome.

agreement to assist him to comply,206 Button J considered that:

to positive environmental outcomes: if the creditors’

particularly with the attendant risks to the community

interests had been demonstrably divergent from some

and environment;207

environmental benefit which was not of itself protected

by the company’s liquidation—rather, the company was exposed to penalties for non-compliance;208 and the liquidator would be personally exposed to penalties as an officer of the company if the notices were not complied C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | I N S O LV E N C Y

the potential for insolvency law to operate contrary

it was important not to leave the waste in place,

the obligations imposed by the notices were not relieved

64

Implicitly, though, Northern Iron also demonstrates

with.209 A third case demonstrates the potential for intersection between the interests of creditors and the good of the environment. Re Northern Iron Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed)210 concerned a mining company which produced highgrade magnetite concentrate from a low-grade iron ore stockpile found within historic mine by-product.211 The rehabilitation project is intended to rehabilitate 50 per

by the insolvency process, the creditors’ interests would trump the environmental outcome.

Predictions in relation to insolvency climate-related litigation in 2026 Emerging regulation provides a glimpse into how

climate-related considerations may increasingly intersect with insolvency law in 2026. Under amendments to the Corporations Act introduced by the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Act 2024 (Cth), certain Australian companies required to report under Chapter 2M of the Corporations Act must now prepare mandatory sustainability reports.

Breach of those obligations may trigger regulatory action and contribute or lead to financial distress.

cent of the historic mine by-product within the mine

Further regulatory burdens may emerge, too.

area, halving the storage liabilities currently held by the

Internationally, ‘soft law’ pressure for climate

Northern Territory Government and reducing health and

accountability and legislative change has intensified.

environmental risks.212 The Court granted an extension

For example, on 23 July 2025, the International Court

of the convening period, principally because a longer

of Justice (ICJ) issued a non-binding ‘Advisory Opinion’

period would maximise the prospect of a going concern

on the obligations of states in relation to climate change.

sale, which was more likely to realise a better return for

Among other findings, the ICJ held that states have a

creditors than would an asset breakup sale, which might

duty to prevent significant harm to the environment

205. Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations), being Schedule 2 to the Corporations Act 2001 (Cth) (Corporations Act).

206. Pursuant to s 477(2B) of the Corporations Act. 207. Re ACB Group Pty Ltd (in liq) [2025] FCA 90, [14].

208. ibid.

209. ibid [15].

210. [2025] FCA 525 (Banks-Smith J) (Northern Iron).

211. ibid [7].

212. ibid.

213. ibid [32]-[34], [55].

by acting with due diligence.214 The ICJ noted that

where regulatory compliance is critical to the company’s

appropriate measures by a state include regulatory

continued operation. Such involvement might not

mechanisms that are designed to rapidly decrease

necessarily require legislative change, particularly where

greenhouse gas emissions to prevent significant harm to

the relevant regulator has ongoing licensing control or

the environment.215 The Advisory Opinion may create

review powers.

pressure on States and international businesses to take further steps to reduce carbon dioxide emissions and

Conclusion

may encourage speculative domestic litigation against

While climate change and environmental impact are not

companies and agencies which (whether by action or

expressly recognised by Australia’s insolvency system,

inaction) might be alleged to have failed to prevent

Re ACB Group indicates that environmental laws are

significant environmental harm.

pushing into that regime in ways which will impact

The entirely economic focus of insolvency laws across much of the world has been the subject of recent criticism from academics who see social objectives such as climate change policy as appropriate objects of insolvency law.216 While presently unlikely in Australia, the prospect of such ideas creeping into insolvency legislation through law reform initiatives cannot be entirely discounted, although the slow pace of insolvency law reform in Australia means that any changes that do come are likely to be far-off and well-telegraphed.

on the obligations of insolvency practitioners, thereby impacting the operation of Australia’s insolvency system.

The example of PG&E demonstrates that regulators may become more creative in their intervention in insolvency processes. Climate reporting obligations also expose companies to increased regulatory and litigation risk, heightening the prospect of financial risk. Looking forward, those risks are likely to deepen the intersection between insolvency law and climate change. Over time, environmental considerations are likely to shift from being purely matters of regulatory compliance to playing

Perhaps more practically, developments in the United

a significant role in assessing the range of likely outcomes

States illustrate how regulatory bodies may assume

for some financially distressed companies.

65

a more active role in restructurings where an impact 2020 the California Public Utilities Commission (CPUC) approved a reorganisation plan proposed by Pacific Gas and Electric Company (PG&E) following its bankruptcy. CPUC’s approval was necessary due to a Californian law217 which established a ‘Wildfire Fund’ to pay eligible claims arising from a covered wildfire.

PG&E’s participation in the Wildfire Fund to satisfy certain claims was conditional on the CPUC approving its reorganisation plan and determining that the plan was, inter alia, consistent with the State of California’s climate change goals.218 In approving the plan, the CPUC also required PG&E to submit to an oversight framework to ensure that it can provide a safe and reliable service and make improvements to achieve California’s climate goals.219 That form of regulatory involvement may foreshadow a similar approach in Australia: regulators overseeing licenced or environmentally sensitive industries, such as energy or mining, may seek to have input into restructuring arrangements, particularly 214. Advisory Opinion, [280].

215. ibid [282].

216. Sarra J, Madaus S and Mevorach I, “The Greening of the Insolvency System”, Canadian Business Law Journal, Vol 69, Issue 3 (March 2025), pp. 231-287.

217. Assembly Bill 1054 (Public Utilities: Wildfires and Employee Protection).

218. ibid, ss 3291-3292.

219. “CPUC Approves PG&E’s Reorganization Plan, Requiring Governance and Oversight Changes”, 28 May 2020, https://docs.cpuc. ca.gov/PublishedDocs/Published/G000/M338/K725/338725560.PDF.

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on climate risk is perceived. For instance, on 28 May

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INSURANCE LAW

By DR ANDREW HANAK KC and VERONICA HOLT Introduction

report we outline some specific climate change challenges

Climate change remains a significant challenge for the

facing Australian insurers, the approaches insurers are

insurance industry.220 The sector continues to face issues

using to address these challenges, and our thoughts on

such as physical risks,221 underwriting challenges,222

some of the emerging trends.

and concerns about the affordability and availability of insurance.223 Insurance companies are addressing these challenges in various ways, including by setting net zero targets, incorporating and embedding climate change risks into traditional insurance modelling and pricing, and by improving efforts to limit underwriting activities in high-emission areas.

Climate change risks and insurance Physical risks The physical risks associated with climate change are an obvious form of risk for insurers.225 As we reflected in our previous report, damage caused by natural disasters and extreme weather events is the most often cited example

Since our last report in 2024, there has been an absence

of physical risk for insurers.226 Australia has some of the

of cases in Australian courts over the past year in the

highest per capita economic and insurance losses caused

insurance field involving a material issue of climate

by natural disasters and extreme weather events.227

change, science, policy or law.224 Consequently, for this

In October 2025, the Insurance Council of Australia C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | I N SU R A N C E L AW

220. See for example, Australian Prudential Regulation Authority, ‘Insurance Climate Vulnerability Assessment’, APRA (Web Page, 5 December 2024) <https://www.apra.gov.au/insurance-climate-vulnerability-assessment#:~:text=Climate%20change%20 could%20alter%20both,would%20drive%20changes%20to%20premiums>. One of the three key objectives of the Insurance Climate Vulnerability Assessment is to ‘Inform governments, policyholders, the community, and insurers on the potential evolution of challenges to the affordability of general insurance in Australia.’ Samuel Yang and Yiying Li, ‘Climate Change increasingly contributing to home insurance premium hikes, IAG warns’, ABC News (online, 4 November 2025) < https://www.abc.net.au/ news/2025-11-04/climate-change-plays-role-in-growing-home-insurance-iag-warns/105964560>. Climate Council, ‘Weathering the Storm: Insurance in a Changing Climate’ (Online Report, August 2023) <https://www.climatecouncil.org.au/wp-content/ uploads/2023/08/Weathering-the-Storm-Insurance-in-a-changing-climate-.pdf>.

221. Paul Schoff, Hannah Beaven and Kemsley Brennan, ‘Insuring against climate risk: physical risks’, MinterEllison Insight, (Web Page, 21 January 2025) <https://www.minterellison.com/articles/insuring-against-climate-risk-physical-risks>.

222. Sonjai Kumar, ‘Impact of Climate Risk on The Insurance Industry’, Actuaries Institute (Web Page, 12 January 2023) < https://www. actuaries.asn.au/research-analysis/impact-of-climate-risk-on-the-insurance-industry#:~:text=One%20such%20company%20 is%20Fidelis,%2C%20oil%2C%20and%20gas%20projects>.

223. Climate Council, ‘Weathering the Storm: Insurance in a Changing Climate’ (Online Report, August 2023) pages 5, 7-19 <https:// www.climatecouncil.org.au/wp-content/uploads/2023/08/Weathering-the-Storm-Insurance-in-a-changing-climate-. pdf>. National Legal Aid, ‘Impact of Climate Risk on Insurance Premiums and Availability’ (Online Newsletter, 19 July 2024) <https://nationallegalaid.org.au/policy-and-advocacy/submissions/impact-of-climate-risk-on-insurance-premiums-andavailability#:~:text=Disasters%2C%20exacerbated%20by%20climate%20change,adaptation%20and%20resilience%20me%20 asures>.

224. The Climate Change Section of the Commercial Bar Association has adopted the following definition of climate change litigation cases: ‘…cases brought before judicial and quasi-judicial bodies, investigations, communications by domestic and international bodies, complaints to regulators, requests for prosecution and enforcement actions that: (a) involve material issues of climate change science, policy or law; and (b) will have a serious impact on the volume of greenhouse gas emissions or on the community’s resilience to climate change (e.g. illegal deforestation and planning decisions).’ For the purposes of this report, we have focused on the Australian context.

225. Paul Schoff, Hannah Beaven and Kemsley Brennan, ‘Insuring against climate risk: physical risks’, MinterEllison Insight, (Web Page, 21 January 2025) <https://www.minterellison.com/articles/insuring-against-climate-risk-physical-risks>.

226. International Association of Insurance Supervisors, ‘Global Insurance Market Report’ (Online Report, December 2023) pages 3, 4952 < https://www.iais.org/uploads/2023/12/Global-Insurance-Market-Report-2023.pdf>.

227. Jess Davis, ‘New data shows Australia’s extreme weather losses among highest in world’, ABC News (online, 7 October 2025) <https://www.abc.net.au/news/2025-10-07/ica-finds-australia-extreme-weather-loss-among-highest-in-world/105831772>.

Also see Munich Re, ‘Australia and New Zealand, Expect the unexpected, Scientific facts and economic impacts of natural disasters’ (Online Report) page 4 < https://www.munichre.com/content/dam/munichre/contentlounge/website-pieces/ documents/302-08732_en.pdf/_jcr_content/renditions/original./302-08732_en.pdf>. In this report it is estimated that natural disasters currently cost the Australia economy $6.3 billion per year and this amount is expected to increase to about $23 billion in 2050.

67

reported that “… for most of the last 45 years Australia has ranked second only behind the United States for economic and insured losses per capita—and was only pushed into third place in the last five years by two extraordinary events in New Zealand.”228 The Insurance Council of Australia reported in its annual Insurance Catastrophe Resilience Report for the 2024–2025 financial year that 154,100 insurance claims were lodged with insured losses being calculated at $1.97 billion.229 These figures represent a “notable reduction” in total claims incurred, “… with insurance losses for the 2024–2025 financial year decreasing by 25 per cent from $2.61 billion in the 2023–2024 financial year to $1.97 billion in 2024-2025.”230 Notwithstanding the decrease, the Insurance Council of Australia reported that claim numbers were “… much closer to year-on-year, falling by only seven per cent to date, from 163,400 claims related to declared extreme weather events to 154,100.”231 These staggering figures are likely to result in higher insurance premiums and will inevitably affect both the availability and affordability of insurance.

Affordability and Availability of Insurance In Australia, insurance premiums are rising.234 This is due to a number of factors including, “… the escalating cost of extreme weather events, the growing value of insured assets, inflation in the cost of building and motor repairs, and increasing cost of doing business for insurers.”235 Relatedly, home insurance premiums in high-risk areas have increased due to climate change.236 There is a risk that the cost of insurance will continue to increase in high-risk areas as the frequency, severity and destruction of extreme weather-related events continue to escalate.

There is a risk that consumers will be unable to afford insurance and may opt for underinsurance or no insurance.237 Financial pressure placed on consumers of such insurance products may lead to a reluctance by those consumers to comply with their disclosure obligations at the time they apply for or renew their insurance products.

This will inevitably have broader implications for the community, governments and the insurance sector itself.

The natural response of insurers will be to attempt to exclude losses arising from climate related events, or

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Underwriting challenges

impose caps on the amount of cover available. Australian

As we reflected in our last report, climate change poses

regulators are already aware of this possibility, and are

a challenge to conventional insurance modelling, which

considering the use of standardised natural hazards

requires an assessment and evaluation of risk based (in

definitions to reduce consumer complaints about

part) on past data.232 Historical climate data used to make

insurance coverage.238

assessments can be unreliable and inaccurate and this in turn impacts how insurance is priced and packaged to consumers.233

There is also a risk that insurers will withdraw insurance entirely in respect of particular areas or properties which are deemed to be too high risk.239 It is estimated that by 2050, approximately one million Australian homes will

228. Insurance Council of Australia, ‘Extreme weather costs: the silver medal we don’t want’ (News Release, 7 October 2025) <https:// insurancecouncil.com.au/resource/extreme-weather-costs-the-silver-medal-we-dont-want/>. Also see Insurance Council of Australia, ‘2024-2025 Insurance Catastrophe Resilience Report’ (Online Report, 7 October 2025) <https://insurancecouncil.com. au/wp-content/uploads/2025/10/21340_ICA_CAT-Report_2025_Final-spreads.pdf>.

229. Insurance Council of Australia, ‘2024-2025 Insurance Catastrophe Resilience Report’ (Online Report, 7 October 2025) page 12 <https://insurancecouncil.com.au/wp-content/uploads/2025/10/21340_ICA_CAT-Report_2025_Final-spreads.pdf>.

230. ibid.

231. ibid.

232. See for example, Prof. IIan Noy, ‘Increasing climate losses threaten the insurance industry and financial stability’, Green Central Banking (Web Page, Opinion Piece, 10 December 2024) < https://greencentralbanking.com/2024/12/10/increasing-climatechange-losses-insurance-industry-financial-stability/>.

233. ibid.

234. Insurance Council of Australia, ‘Climate Action’ (Web Page) <https://insurancecouncil.com.au/campaigns/future-proof-australia/ climate-action/>.

235. ibid.

236. David Richardson, Stephen Long, Rod Campbell, ‘Premium price: the impact of climate change on insurance costs’, The Australia Institute (Web Page 4 November 2024) <https://australiainstitute.org.au/report/premium-price-the-impact-of-climate-changeon-insurance-costs/>.

237. The Australian Climate Service, ‘Australia’s first National Climate Risk Assessment’, see specifically, ‘Australia’s National Climate Risk Assessment Report 2025’ (Web Page and Online Report) page 65 <https://www.acs.gov.au/pages/national-climate-riskassessment>.

238. Standing Committee on Economics, Parliament of Australia, House of Representatives, Flood failure to future fairness, Report on the inquiry into insurers’ responses to 2022 major floods claims (Final Report, October 2024) pages 55-56 [4.20]-[4.28].

239. The Australian Climate Service, ‘Australia’s first National Climate Risk Assessment’, see specifically, ‘Australia’s National Climate Risk Assessment Report 2025’ (Web Page and Online Report) page 65 <https://www.acs.gov.au/pages/national-climate-riskassessment>.

be assessed as being in “very high risk” zones and will be

The first trend that may give rise to litigation relates

uninsurable.240

to the pricing of insurance. Insurance, particularly

Response of the insurance industry

home insurance premiums, are increasing for the reasons set out above. In the future, regulators and

The insurance industry globally has been alive to the

other stakeholders may wish to examine how these

challenges and risks posed to it by climate change, some

products are priced and the coverage they provide. The

of which are discussed above. The industry has been

key question will be whether these insurance products

active in responding to climate change risks.

comply with consumer laws.

For example, in Australia there is evidence to suggest

The second trend that may give rise to future litigation

that the industry is moving towards net zero. In

is likely to arise if consumers of insurance products

2022, the Insurance Council of Australia published a

push the boundaries of their disclosure obligations at

framework for the insurance industry; the Climate Change

the time they apply for or renew insurance policies. We

Roadmap, Towards Net-Zero and a Resilient Future. The

see this trend as emerging over a longer timescale, as

purpose of the publication was to provide a framework

the frequency of climate change events increases and as

for insurers to cut emissions, with targets to assist in

the law concerning disclosure of climate change risks is

achieving net zero by 2030 in respect of insurance

clarified.

operations and, with targets to assist in achieving net zero by 2050 in respect of insurers’ investments, supply chains and underwriting.241

The third trend, which we discussed in our 2024 report, relates to property damage and related liability claims. We expect ongoing activity in this space if natural disasters and

Further, insurers are developing new insurance products,

extreme weather events continue to occur. In our view,

such as parametric insurance to meet the unique

there will be a growing focus on the definitions of natural

insurance challenges associated with climate change.242 It

hazards and the exclusions used by insurers seeking to limit

is likely that other innovative insurance products will be

the scope of cover provided under their policies.

developed over time in response to climate change.

limiting their underwriting activities in coal and other high-emission industries. For example, Allianz “… started limiting financial coal-based business models in 2015, followed by restrictions in insurance in 2018, and aims to completely withdraw from the coal segment by 2040.”243

Conclusion As set out above, the insurance sector has been grappling with the challenges imposed by climate change for some time. It seems that insurance players are moving towards net zero commitments, redesigning their insurance products to address the unique challenges climate change imposes and moving towards green solutions.

Possible future litigation trends

Whilst there has been an absence of climate change cases

Given the matters identified above, we consider that

in Australia in the insurance field in 2025, the sector

there are three possible future litigation trends.

remains exposed to both regulatory and litigation risks.

240. Jake Evans, ‘Climate Risk Assessment’s ‘high risk’ warning for 1 million Australian homes’, ABC News (online, 16 September 2025) <https://www.abc.net.au/news/2025-09-16/climate-risk-assessment-million-homes-insurance-gdp-costs/105774418>. See also, The Australian Climate Service, ‘Australia’s first National Climate Risk Assessment’, see specifically, ‘Australia’s National Climate Risk Assessment Report 2025’ (Web Page and Online Report) page 65 <https://www.acs.gov.au/pages/national-climate-riskassessment>.

241. Insurance Council of Australia, ‘Climate Action’ (Web Page) <https://insurancecouncil.com.au/campaigns/future-proof-australia/ climate-action/>.

242. Emmalina Glinskis and Daniel Murphy, ‘What is parametric insurance and how is it building climate resilience?’, World Economic Forum (Web Page, 8 January 2025) <https://www.weforum.org/stories/2025/01/what-is-parametric-insurance-and-how-is-itbuilding-climate-resilience/>. Ben Qin, ‘Parametric Insurance and its Growing Place in the Industry’, Actuaries Institute (Web Page, 10 March 2024) <https://www.actuaries.asn.au/research-analysis/parametric-insurance-and-its-growing-place-in-the-industry>.

Also see Paul Schoff, Hannah Beaven and Kemsley Brennan, ‘Insuring against climate risk: physical risks’, MinterEllison Insight, (Web Page, 21 January 2025) <https://www.minterellison.com/articles/insuring-against-climate-risk-physical-risks>.

243. Allianz, ‘Allianz reinforces its commitment to net-zero strategy’, (Web Page, Press Release 29 April 2022). <https://www.allianz. com/en/mediacenter/news/commitment/environment/220429_Allianz-reinforces-its-commitment-to-net-zero-strategy. html#:~:text=Addressing%20the%20mid%2Dterm%20decarbonization,orderly%20decarbonization%20of%20the%20 economy>. Also see, for example, Tim Buckley, ‘AXIS joins 28 global insurers exiting coal financing’, Institute for Energy Economics and Financial Analysis (Web Page, 17 October 2019) <https://ieefa.org/resources/axis-joins-28-global-insurers-exiting-coalfinancing>; and Sonjai Kumar, ‘Impact of Climate Risk on The Insurance Industry’, Actuaries Institute (Web Page, 12 January 2023) <https://www.actuaries.asn.au/research-analysis/impact-of-climate-risk-on-the-insurance-industry>.

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There is also evidence to suggest that insurers are

69

INTERNATIONAL LAW

By DR DAYE GANG

I

NTERNATIONAL LAW CONTINUES to seismi-

wide-ranging and authoritative declaration of applicable

cally shift in clarifying and creating obligations with

international law not only on States’ obligations, but

respect to climate. May 2024 saw the advisory opin-

also on their liabilities for climate-related harms in their

ion of the International Tribunal for the Law of the

own territory and as against other States. Australia

Sea (ITLOS) setting out the obligations of States Parties

filed written submissions dated 22 March 2024 and 15

to the United Nations Convention on the Law of the Sea

August 2024, largely arguing in support of a narrow

(UNCLOS) on pollution and marine environment con-

interpretation of international law by reference to the

servation in light of climate change. 2025 has seen two

hard laws of the United Nations Framework Convention

further advisory opinions handed down by international

on Climate Change and the Paris Agreement, but

courts that will inform advocacy and strategy for practi-

only to transboundary environmental harms rather

tioners of private international law and domestic law.

than the scientifically more complex phenomena of climate change. It also disavowed the development of customary international law to impose “different” obligations than those already agreed to in writing.

On 29 May 2025, the Inter-American Court of Human

As to States’ responsibility for causing climate-related

Rights (IACtHR) handed down its advisory opinion,

harms, Australia complained that it would be difficult

sought by Chile and Colombia in January 2023, on

to establish that a State committed an internationally

States’ obligations in response to the climate emergency

wrongful act because of the complexity of attributing a

within the framework of international human rights

causal nexus between one State’s act and another State’s

law pursuant to the American Convention on Human

climate-related loss and damage.

Rights. Although this advisory opinion does not declare binding law for the 34 American countries of the Organisation of American States, it is the most comprehensive description yet of States’ obligations in response to the climate emergency seen through the lens of the international human rights framework. To the extent that the American Convention on Human Rights is similar to human rights conventions or Acts, the advisory opinion of the IACtHR can be drawn upon for its content.

On 23 July 2025, the International Court of Justice (ICJ) issued its advisory opinion on the obligations of States in respect of climate change. Broader than those of the ITLOS and IACtHR, the ICJ’s advisory opinion was a

244. Paragraph [272].

The ICJ advisory opinion recognised the cardinal role of climate treaties. However, it also recognised and applied principles of customary international law to prevent activities within their borders from causing significant harm to the environment of another State244 resulting from anthropogenic greenhouse gas emissions. The Court further included climate in international law on the environment, such as by requiring analysis of climate impacts in environmental impact assessments.

Soon after came the Committee on Economic, Social and Cultural Rights (CESCR) General comment No. 27 (2025) on economic, social and cultural rights and the environmental dimension of sustainable development. In contrast to advisory opinions, which only declare existing

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States’ obligations under hard international law

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SOME CLEAR CANDIDATES AS PLAINTIFFS FOR LITIGATION AGAINST AUSTRALIA FLOWING FROM THESE ADVISORY OPINIONS ARE THE PACIFIC STATES. international law, general comments by the committees

two years later. Domestic litigation that applies these

of international human rights conventions set out an

advisory opinions is certain to take significantly longer,

authoritative interpretation of that convention—in this

especially given the inevitable clash of expert opinions

case, the International Covenant on Economic, Social

on causation that the Australian government has already

and Cultural Rights (ICESCR)—that interprets the

foreshadowed.

rights promised therein. The CESCR’s general comment complements and reiterates the advisory opinions of the IACtHR and ICJ through the articles of the ICESCR.

Application of international law to domestic advocacy and litigation Being declarations of existing laws, advisory opinions take less time than contentious cases between States or between individuals and States. Like the advisory opinion of the IACtHR, the ICJ advisory opinion was

requested in April 2023 and handed down approximately

From Australia’s position before the ICJ, and its similar position before the ITLOS advocating for a treaty-based interpretation of climate-related international legal obligations, States and persons in contentious cases against Australia can prepare for defences that cling to treaty frameworks and arguments about causation and remoteness. While the long-term application of the advisory opinion remains to be seen, some clear candidates as plaintiffs for litigation against Australia flowing from these advisory opinions are the Pacific States.

Based on the three advisory opinions, there are opportunities (some States may say risks) for States that have suffered from other States’ climate-related harms to sue for damages and reparations. These actions may be brought in both international and domestic courts.

For dualist States, including Australia, a State suing for reparations will have to hook into some domestic law rather than appeal directly to the advisory opinions. Even as a State Party to a treaty, binding international legal obligations do not become domestic legal obligations until the international obligations are incorporated into domestic legislation. However, where domestic law already exists, lawyers can advocate for the content of that law to be consistent with international law. For example, this may be a human rights Act containing a right that can now be more broadly read and interpreted because of the advisory opinions.

The three advisory opinions are also fertile ground for novel and strategic angles to purely domestic litigation.

A government’s failure to consult communities disproportionately affected by climate change might become an administrative law challenge regarding

Soft international law, with Australia as the seat

Australia continues to administer its National Contact Point (NCP) under the OECD Guidelines for Multinational Enterprises (OECD Guidelines), principles of soft international law guiding the conduct of multinational businesses. Although not litigation, one complaint filed this year is known to be climate-related.

Environment Tasmania has filed a complaint against Woolworths Group, calling upon Woolworths to cease procuring salmon from Macquarie Harbour because of its impact on the Maugean skate, cease labelling that salmon was “responsibly sourced”, and improve its environmental due diligence policy.246 Accompanied by scientific and media attention, this complaint shows that Australian lawyers have non-litigious complaint options in the NCP where litigation may not be the best strategic fit.

Future directions for international law

Pacific Nations’ push for a Fossil Fuel Non-Proliferation Treaty continues with the increasing support of States.

obligation on States to hold polluters to account may

So does the Pacific Maritime Boundaries Programme,

become a lawsuit alleging a failure to intervene in

which has been bolstered by the declaration in the ICJ

companies causing disproportionate climate harms.

advisory opinion that, once a State’s maritime borders

Similarly, in last year’s publication, it was posited that investors and investor States could sue in the International Centre for Settlement of Investment Disputes (ICSID) if they can argue that the effects of climate change have caused economic harm, and harmed the interests of international investors, in relation to a relevant investment. The advisory opinions should embolden such claims where causation and loss and damage can be demonstrated, as was the case in the

have been drawn, there is no requirement to update those borders247. This means that the submergence of a State’s territory does not entail the reduction of that State’s maritime territory. Also ongoing is the campaign to incorporate ecocide into international criminal law.

Together, Pacific Nations continue to lead the most creative international legal developments. As their neighbour, Australia should anticipate the legal risk of climate litigation or other strategic accountability calls.

negligence suit of seaweed farmer Mr Sanda in Sanda v

In last year’s review, we called on states to be alert

PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 7)245.

to emerging principles of public international law in

This form of litigation may be strategically used by

developing new domestic legislation requiring private

investor States supportive of the energy transition.

action to mitigate climate impacts. It remains to be

Ultimately, because so much of climate policy and legislation is left to the discretion of the Executive, the litigation will be in the details.

seen whether the Australian government’s reforms of the Environment Protection and Biodiversity Conservation Act 1999 will substantively reflect the advisory opinions.

Failure to do so may open doors to administrative law challenges that exploit the gap between international and domestic law.

245. [2021] FCA 237.

246. https://ausncp.gov.au/complaints/complaint-39; https://www.oecdwatch.org/complaint/environment-tasmania-vs-woolworthsgroup/ 247. paragraph [359].

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a failure to consider a relevant consideration. The

INTELLECTUAL PROPERTY LAW

By CRAIG SMITH SC

T

HERE ARE VARIOUS actual and potential

There has also been an increase in patent filings over the

intersections between intellectual property

past five years in relation to green hydrogen, and battery

rights and climate change. Of these, patents

technology more generally.

stand out as having the greatest potential

impact, although confidential information laws and trademarks may also have relevance. Many process developments in manufacturing that are directed to reducing greenhouse gas emissions will involve confidential infor-

the extent to which patents can drive investment in technologies that aim to reduce greenhouse gas doing so are not fully internalised.250 Governments internationally have sought to encourage such

There were no Australian intellectual property decisions

investment through directed funding efforts, including in

over the last year that have the potential for serious

Australia.

impact on greenhouse gas emissions. There has been some patent litigation in relation to crop and animal breeding methods with potential implications for the efficiency of food production, which may have associated environmental impact.

75

emissions, given that the benefits to a business of

In August 2025 the Australian government launched its Battery Breakthrough Initiative to provide funding for projects that enhance Australia’s manufacturing capabilities, and commercialise those processes. And the Australian Renewable Energy Agency (ARENA) is also

IP Australia has recently reported on various trends

continuing funding of research and commercialisation

in patent filings, which have showed strong growth in

for renewable hydrogen and for solar photovoltaic

relation to electric vehicle filings, including battery-

technology. It is expected that this will lead to further

related filings, particularly from Chinese applicants.248

patenting activities, and the potential for associated

In Australia, patent applicants for green technology can

licensing or litigation.

also request expedited examination in order to accelerate the pathway to achieving a granted patent. While patent filing levels have some correlation with investment in associated research and development,249 they also bring the potential for litigation to enforce those monopoly rights and thereby limit competition.

248. Australian IP Report 2025, IP Australia, page 23.

249. See for example Block, J. et al, ‘Green patents and green trademarks as indicators of green innovation’, (2025) Research Policy Vol 54 Issue 1, article 105139.

250. See for example Uddin, M., ‘Patent as a Tool for Facilitating Innovation: Lessons from Green Technology’, (2024) Working Paper, Centre for International Governance Innovation, at page 9.

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mation rather than patented inventions.

It has been recognised that there are limitations to

INVESTMENT ARBITRATION AND CLIMATE DISPUTES

By TOMO BOSTON KC

T

HE CONFIDENTIAL NATURE of arbitration restricts public access to reliable information, limiting analysis and understanding of climate-related disputes in an arbitration

context. Arbitration offers advantages for resolving such disputes, including flexible procedures, the ability to appoint arbitrators with relevant expertise, and enforceable awards. However, certain limitations251 exist: public public interest groups often lack standing, and restricted publication of awards can hinder advocacy efforts252.

» Conflicts are increasing between States’ regulatory autonomy to implement climate obligations—such as those under the Paris Agreement—and investor protections in international agreements. Old generation agreements often lack carve outs for investors to claim damages when climate measures affect their rights. Such disputes may ultimately shape the permissible scope of climate-related regulation; » Disputes involving transition minerals (e.g., lithium,

Investment treaties are international agreements

nickel, cobalt and uranium) are on the rise, and have

regarding a State's treatment of investments made by

a geopolitical element as States’ seek to secure the

individuals or companies from another State253. States commit to providing foreign investors with protections

supply of these minerals; » Disputes over the accelerated phase-out and

such as fair and equitable treatment. Breaches of these

decommissioning of fossil fuel projects are likely

standards enable investors to bring claims against States

to increase as States face growing pressure to meet

before international arbitral tribunals. These arbitrations

climate obligations255. Such measures can devalue

increasingly highlight tensions between State climate

investments in these projects and reduce expected

policies and investor protections. This paper seeks to

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emissions reductions or ESG compliance, enabling

returns, leading to potential disputes;

explore these issues from an Australian perspective,

» There is growing tension between national sovereignty

while acknowledging current information limitations.

over resources and investor rights, as States implement regulatory and fiscal measures—such as increased taxes, licence cancellations, and renegotiations—to

251. The American Society of International Law has launched a Task Force on ISDS and Climate Change in 2025, to provide structured guidance on the substantive and procedural issues arising in ISDS cases involving climate-related measures.

252. Environmental claims are not unknown to investor-state disputes. For example, Allard v Barbados was an investor-state dispute under a BIT in which Allard (a Canadian national) alleged that the government of Barbados had failed to take all reasonable steps to protect Allard’s investment in an eco-tourism site in Barbados from environmental degradation.

253. https://icsid.worldbank.org 254. There are other themes such as disputes involving investors challenging retroactive removal or modification of financial incentives to invest in renewables. The most prominent of these arbitrations is the well-publicised ISDS claims under the Energy Charter Treaty by investors in renewable energy projects in Spain, which are arguably motivated by economic rather than environmental concerns.

Other themes include States’ using arbitrations to hold foreign investors liable for environment damage or non-compliance with national laws. Searches of publicly available information have not identified such arbitrations in Australia.

255. The Australian Energy Market Operator released its 2024 Integrated System Plan which includes a Step Change scenario in which 100 per cent of coal generation to be withdrawn by 2038. 2024-integrated-system-plan-overview.pdf

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law climate disputes may not be suitable for arbitration,

A summary of the emerging key themes include:254

maximize revenue and enhance security. This trend,

In 2021, Greenland enacted the “Uranium Act,” banning

known as “resource nationalism”,

uranium prospecting and mining. Uranium, a key

256

marks a shift from

historically minimal regulatory interference that was

metal in the transition, coexists with rare earth metals

designed to attract foreign investment;

in Kvanefjeld, southern Greenland, where extraction

» Damages awarded can reach billions, reflecting

poses environmental risks. Greenland Minerals (GM), a

the high value of transition minerals and fossil

subsidiary of Energy Transition Minerals Ltd (Australia),

fuel investments.257 Such awards can significantly

had operated under an exploration licence since 2007.

impact national budgets258 and may discourage the

GM claims that prior to the Act, an exploration licence

particular governments (and other governments in

entitled holders to an exploitation licence upon discovery

similar positions) from pursuing climate policies. This

of a viable deposit. After the Act was passed, the

phenomenon is known as “regulatory chill.”259 In one

government asserted a discretion to refuse exploitation

way, the damages awarded against States shift the

licences, leading GM to initiate arbitration in July 2023

cost of climate mitigation to the public. Whether and

against Greenland and Denmark under the Danish

the extent to which the ICJ’s advisory opinion (July

Arbitration Act, seeking either mining rights or USD

2025) that defined a polycentric obligation on States

11.5 billion in compensation. On 28 October 2025, the

to prevent climate harm will offer States’ a defence to

Copenhagen tribunal ruled that the dispute must first

these claims could be an interesting development in

be heard in Greenland’s domestic courts, staying the

this area.

arbitration pending that outcome.264

260

Recent arbitrations illustrate these themes.261

Regulatory chill

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In November 2019, Aura Energy Limited (Australia) commenced arbitration under the Energy Charter Treaty against Sweden, following Sweden’s 2018 nationwide ban

Between 2020 and 2024, the Alberta government

on uranium exploration and mining. Aura alleges the ban

alternated restrictions on coal mining in the Rocky

constitutes indirect expropriation and violates the fair

Mountains. The removal of restrictions prompted mining

and equitable treatment clause of the Treaty. Aura claims

companies to invest in land and leases. In 2023, the

USD 1.8 billion in compensation. Sweden contends

reinstatement of these restrictions led to a $15 billion

the claim lacks legal merit. In 2025, Aura paused the

lawsuit by several coal mining companies, including

arbitration as Sweden advanced legislation to lift the ban,

Australian companies. In response, Alberta lifted the ban on

with the new legislation expected in January 2026.265

coal mining in parts of the region. The Premier stated this decision was necessary to protect taxpayers from potential payouts, as Alberta was likely to lose the cases262. On 14 June 2025, Alberta settled with Atrum Coal Limited (Australia), and on 17 October 2025, settled with a subsidiary of Evolve Power Limited (Australia) for CAD 95 million263.

There are a series of arbitrations before the Permanent Court of Arbitration between Zeph Investments Pte Limited (a Clive Palmer controlled Singaporean company) and Australia under the ASEAN–Australia– New Zealand Free Trade Area (AANZFTA). One of the

256. Resource nationalism and political instability: Strategies for risk management - MINING.COM 257. Compensation and Damages in Investor-State Dispute Settlement Proceedings | UNCTAD Investment Policy Hub. 258. Developed countries, not just developing countries, face significant payouts. The well publicised ISDS claims under the Energy Charter Treaty by investors in renewable energy projects in Spain, has led to awards in excess of 1 billion (euros). Spain has challenged the enforced of these awards, leading to enforcement in other jurisdictions such as Australia (Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028 (among others)).

259. Unpacking regulatory chill: the case of mining in the Santurbán páramo in Colombia | International Institute for Environment and Development.

260. Declaration of Judge Cleveland to the ICJ Advisory Opinion of July 2025 at [22]: It is therefore important to underscore that the obligations of States in relation to the protection of the climate system impose significant responsibilities on States to adopt and implement appropriate environmental regulations to mitigate and adapt to climate change, including in co-operation with other States, while allowing States some discretion with respect to the particular regulatory paths that may be chosen. Accordingly, the interpretation of investment instruments must be informed by States’ obligations in respect of climate change under international law, including the stringent due diligence standard to which States are bound in implementing such obligations.

261. While the examples are predominantly investment treaty arbitrations, it is also possible similar themes are arising in commercial arbitrations where State entities or public-private partnerships are involved.

262. “Alberta to pay $95M settlement to another coal company over policy change” by Robson Fletcher, CBC News, 23 October 2025 263. Alberta reaches settlement with 2 coal companies over policy change | CBC News.

264. ETM-Summary-of-dispute-and-SoC-Eng-FINAL.pdf; GMAS v. Greenland and Denmark, Press Release of Energy Transition Minerals Ltd on Update on Arbitration and Litigation, 20 June 2025; Mining company suing Greenland for billions hires former Danish foreign minister - ArcticToday.

265. Aura Energy Limited v Sweden - Claim for Damages Under the Energy Charter - Union Law and European Law - 4 November 2019 Legal & Regulatory docs. | TDM Journal.

arbitrations266 claims $69 billion in compensation arising

of shares, alongside payment of the remaining USD15

from the government’s refusal to approve a licence for

million.274 The public discourse suggests that the DRC’s

the thermal coal mine in the Galilee Basin in central

actions were motivated, in part at least, by resource

Queensland. This dispute has its genesis in the seminal

nationalism.275

decision of the Land Court of Queensland Waratah Coal Pty Ltd v Youth Verdict Ltd,267 which recommended the refusal of the thermal coal mine licence.268

Additionally, the DRC’s agreement with Kobold, a US company, may reflect US government efforts to reduce reliance on Chinese lithium supply. Thereby introducing a further complicating geo-political element to these

Resource nationalism On 16 December 2024, the liquidators of Balamara

disputes.

Resources Limited, an Australian mining company,

In May 2025, a Dutch subsidiary of Woodside Energy

initiated a formal dispute against the Republic of Poland

initiated an ICSID claim against Senegal regarding the

under the Australian-Poland Bilateral Investment Treaty

Sangomar deepwater oilfield project, Senegal’s first

and potentially the Energy Charter Treaty.

major offshore petroleum development. Following the

269

On 26

August 2025, the Supreme Court of New South Wales

commencement of production in mid-2024, Senegal

approved the liquidators’ entry into a funding agreement

issued a retrospective tax assessment of USD 90 million

to pursue arbitration.270 The dispute centres on Poland’s

against Woodside, which the company disputes.276

denial of environmental approval for Balamara to mine

Senegal’s increased scrutiny and renegotiation of terms

coking coal deposits. A similar claim by GreenX Metals

with foreign investors since oil production began

resulted in an award of $490 million against Poland in

reflects efforts to maximize state revenue and regulatory

November 2024.271 The motivation behind Poland’s

control—an example of fiscal resource nationalism.

refusal is unclear, particularly as subsequent mining approvals were granted to local companies. It could well

Commercial arbitrations

be there is an element of resource nationalism at play.

In November 2024, Anglo American (seller) and

The Manono Lithium and Tin Project in the Democratic lithium resources with global significance. AVZ Minerals Limited, an Australian-listed company,272 acquired an interest in the Project through shares in Dathcom Mining SA. This has led to multiple disputes in various arbitration forums regarding AVZ’s share acquisition273, the DRC’s failure to grant exploration and mining licenses, and the DRC’s framework agreement with Kobold Materials Company to mine the lithium.

The DRC’s resistance to AVZ’s increased shareholding appears to be an effort to assert greater control over the Project. In ICC arbitration, the DRC sought to terminate the share sale agreement, renegotiate the price for the

agreement for the sale of several steelmaking coal mines in Queensland’s Bowen Basin. In March 2025, a fire occurred at one of the mines, prompting Peabody Energy to invoke the material adverse change clause, seeking to terminate the agreement and recover its $113 million deposit. Anglo American contends that the termination was unjustified, as the fire did not damage the mine or equipment and, therefore, did not constitute a material adverse change. It has been suggested that Peabody’s decision to invoke the material adverse change clause was influenced by a significant decline in coal prices, which rendered the purchase price excessive under current market conditions.277

10 per cent shareholding, or transfer only 3.58 per cent

266. Zeph Investments Pte Ltd v The Commonwealth of Australia (III) PCA Case No. 2024-23.

267. [2022] QLC 21.

268. Zeph v. Australia (III) | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub 269. Balamara Resources (in liquidation) v. Poland, Judgment of the Supreme Court of New South Wales [2025] NSWSC 963, 26 Aug 2025.

270. In the matter of Balamara Resources Limited (No.2) [2025] NSWSC 963.

271. Australian mining firm trumps Poland in arbitration | ISDS Platform 272. On 13 May 2024, the securities of AVZ Minerals Limited were suspended from trading for two years, pursuant to s.3.4 of the ASX Listing Rules Guidance Note 33.

273. On 11 Nov 2025, the Australian Securities and Investments Commission commenced proceedings in the Federal Court against AVZ for breaching its continuous disclosure obligations and engaging in misleading or deceptive conduct by failing to announce to the market the escalating legal dispute in relation to the acquisition of shares in the Manono Project (ASIC Media Release [25-27 IMR]) 274. 20250702+Announcement+-+Dathomir+SPA+2020+Decision+(final).pdf 275. AVZ Minerals Wins Key Legal Victory in DRC Lithium Dispute.

276. Woodside Energy Senegal arbitration.

277. Peabody and Anglo American enter arbitration over $5.7 billion Queensland mines sale - ABC News.

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Republic of the Congo (DRC) is one of Africa’s largest

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Peabody Energy (buyer) entered into a USD 3.8 billion

LAND USE LAW

By FIONA MCLEOD AO SC and EMILY MORISON Emerging themes

T

HE INTERSECTION OF climate change and

Second, the integration of climate considerations into

land-use regulation continues to evolve within

statutory planning, environment and land use regimes has

Australia and globally. Increasingly, case law is

shifted the focus of litigation somewhat from needing to

characterised by judicial acceptance of climate

establish factual causation concerning the harmful impacts

science as incontrovertible and an increased preparedness

of emissions to evaluating procedural adequacy and

to scrutinise decision-making for consideration of climate

evidentiary sufficiency.

impacts.

Third, international jurisprudence, particularly the 2025

Several emerging themes can be discerned. First, that

Advisory Opinion of the International Court of Justice

administrative review remains the primary tool for requiring

on Climate Change (“ICJ Opinion”) is reshaping the

reconsideration of the climate impacts of extraction and

normative context for domestic planning and environmental

related land-use proposals, and courts have thus far confined

adjudication, establishing due diligence standards with

judicial intervention to circumstances in which legislative or

potential implications for Australian administrative law. The

constitutional frameworks impose clear obligations.

potential now exists for parties to argue that the ICJ decision represents normative customary international law, applicable

automatically in some States, but at least relevant in other

of relevant offsets will be dependent on the protected matter

States as an interpretative guide. A further potential concerns

and its requirements.

the determination of State’s rights and corresponding obligation to protect the express or implied rights of citizens.

The present draft requires compensation for affected protected matters such as are appropriate “taking into

Legislative and policy developments—local and national

consideration the reasonably foreseeable future adverse

Victoria’s 2024 climate-planning reforms mark a decisive

implemented without further clarification it is clear that a

statutory embedding of climate considerations within

significant discretion and very little guidance is provided to

land-use law. Climate change is now an express statutory

future decision makers.

consideration under the Planning and Environment Act 1987 (Vic) and Ministerial Direction 22. Compliance demands demonstrable and reasoned engagement with both mitigation and adaptation.

impacts of climate change (including recommended actions in conservation planning documents)”. If the Standards are

Internationally, Australia and other nations updated Nationally Determined Contributions under the Paris Agreement will guide emission-reduction priorities through the coming decade, reinforcing the link between

Under the Planning and Environment Act 1987 (Vic), s4(2)(da)

international commitments and domestic land-use policy.

now introduces a specific objective to reduce greenhouse-gas

Australia has announced it does not intend to legislate the

emissions and enhance climate resilience and s12(2A) obliges

recently announced NDC.

planning authorities to have regard to the state’s emissionreduction targets and climate-risk projections when preparing or amending planning schemes.

Ministerial Direction No. 22 – Climate Change Consideration (26 September 2025) mandates the integration of mitigation and adaptation analysis in rezoning and permit processes, particularly for land Guidelines published by the Department of Energy, Environment and Climate Action in September 2025 provide evidentiary and methodological guidance for compliance, including the requirement for scientifically grounded risk modelling, with baseline projections for risk mapping found in the current Climate Science Report.

At the Commonwealth level, reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) promising stronger environmental protection and regulation of environmental offsets were passed on 28 November 2025. The proposal is to introduce National Environmental Standards by legislative instrument in 2026. The use of offsets remains controversial. An exposure draft standard for environmental offsets notes only that:

State duty and the limits of negligence: Pabai Pabai v Commonwealth of Australia (No 2) Justice Wigney’s judgment in Pabai Pabai278 represents accepted that climate change poses real and foreseeable threats to the Torres Strait, yet declined to recognise a novel mitigation and adaptation duty of care owed by the Commonwealth to protect affected communities and did not find that the Court could interfere with government target’s or funding of adaptation infrastructure as matters of “core policy”, reserved solely for the parliament.

While the matter is subject of appeal, at least two important legal consequences emerge. First, the factual foundation of climate science is no longer a matter of controversy in Australian courts. Second, the decision delineates the doctrinal limits of the common law, confining climate accountability to statutory and administrative contexts rather than the tort of negligence.

Offsets are best able to support recovery and conservation by

Emissions, Local Impact and Statutory Construction: Mount Pleasant Coal Mine Appeal

focusing efforts on addressing existing threats which result

In Denman Aberdeen Muswellbrook Scone Healthy

in a decline in the condition and/or resilience to protected

Environment Group Inc v MACH Energy Australia Pty

matters (e.g., land clearance, slow loss of condition as a result

Ltd279, the New South Wales Court of Appeal overturned

of weeds, more rapid loss as a result of predation by feral

the approval of the Independent Planning Commission’s

cats) and responding to emerging threats which result in a

(IPC) for the Mount Pleasant coal mine expansion. The

decline in condition and/or resilience to protected matters

Court found that the IPC had erred by failing to consider

(e.g., climate resilience, new emerging diseases). The nature

the localised effects of global warming as required by s

278. [2025] FCA 796 279. [2025] NSWCA 163

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a watershed in Australian climate litigation. The Court C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | L A N D US E L AW

subject to climate hazards. Climate Change Consideration

Judicial developments

4.15(1)(b) of the Environmental Planning and Assessment Act

impacts of future oil and gas production, thereby breaching

1979 (NSW). It held that although Scope 3 emissions are

Norway’s obligations under Article 8 of the European

accounted for internationally under the Paris Agreement,

Convention on Human Rights to protect the right to

their adverse manifestations—heat, extreme weather, and

private and family life.

sea-level rise—are experienced domestically and must be assessed as part of the project’s environmental impacts.

[EIA] in good faith and based on the best available science

emissions associated with the use of land (fugitive

must be conducted before authorising a potentially

and Scope 3 emissions) may be as relevant to planning

dangerous activity that may be harmful to the right for

assessment as those arising from its development.

individuals to effective protection by the State authorities

Tribunal in Gomeroi People v Santos & Anor.280, where the Tribunal approved the Narrabri Gas coal seam gas plant

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emphasise that “an adequate, timely and comprehensive

This reasoning has broader interpretative implications:

This decision came after the decision of the Native Title

82

While the Court found no violation of Article 8, it did

from serious adverse effects of climate change on their life, health, well-being and quality of life”. The Court stated that in the context of petroleum production projects, the EIA:

proposal with conditions, on the basis that the conditions

must include, at a minimum, a quantification of the

of sale of gas products domestically and other conditions

GHG emissions anticipated to be produced (including the

were sufficient to address climate impacts on protected

combustion emissions both within the country and abroad).

matters including native title rights and interests. The

Moreover, at the level of the public authorities, there must

Tribunal did not consider the impacts of fugitive or Scope

be an assessment of whether the activity is compatible with

3 emissions. The decision has been appealed to the Full

their obligations under national and international law to

Court of the Federal Court and the appeal will be heard in

take effective measures against the adverse effects of climate

late November 2025.

change. Lastly, informed public consultation must take place

The landmark 2024 decision of the UK Supreme Court in Finch v Surrey County Council, which found that a Council’s

at a time when all options are still open and when pollution can realistically be prevented at source.282

approval of an oil extraction project was unlawful because

It noted that recent international advisory opinions including

its Environmental Impact Assessment (EIA) failed to

the ICJ Opinion are consistent with this view.283

assess the project’s Scope 3 emissions, has spurred law reform281 and litigation across the UK.

While Australia is not a party to the ECHR, it has obligations under international law to protect the right to

In Woodhouse Investment Pte Ltd and West Cumbria Mining

private and family life under the International Covenant on

(Holdings) Ltd v. United Kingdom (Case No. ARB/25/37)

Civil and Political Rights (ICCPR) and is also subject to the

the UK High Court, following Finch, quashed a planning

jurisdiction of the ICJ.

approval for West Cumbria Mining’s proposed Woodhouse Colliery deep coking coal mine. The project proponent

Adaptation and resilience

subsequently withdrew its application, but in August 2025,

Recent Victorian Civil and Administrative Tribunal

the company and its Singaporean parent filed an Investor-

planning decisions confirm that compliance with climate-

State Dispute Settlement (ISDS) suit against the UK

adaptation provisions now constitutes a jurisdictional

government under the UK-Singapore bilateral investment

precondition for lawful approval. Inadequate modelling

treaty claiming compensation in relation to the project.

or unsupported assertions of resilience are treated as fatal

In October 2025, the European Court of Human Rights (ECHR) delivered its ruling in Greenpeace Nordic and Others v. Norway. The case concerned a challenge by individuals

deficiencies, evidencing an expectation of quantitative, evidence-based risk assessment: Cochrane v Yarra Ranges SC [2025] VCAT 981, Nolan v Wellington SC.284

and environmental organisations of a 2016 decision by the Norwegian Government to grant exploration licences for offshore petroleum extraction. The applicants argued that the decision failed to adequately consider the climate

280. [2025] NNTTA 12 281. In 2025, in response to the Finch decision, the UK Department of Energy Security and Net Zero released guidance for how developers are to assess downstream GHG emissions in EIAs for offshore oil and gas projects.

282. Paras 318, 319 (citations removed).

283. Para 320.

284. [2025] VCAT 911.

Human rights and climate obligations: Re Sungela Pty Ltd & Anor

The ICJ Opinion has been referenced in several forums,

In Re Sungela285, the Queensland Land Court recommended

Infrastructure Coalition v Eagle County (US Supreme Court,

against a 25-year extension of the Ensham Coal Mine,

2025) where the US Supreme Court adopted a restrictive

finding that the applicants had not demonstrated “real

view of causation, holding that agencies are not obliged to

and significant progress” towards mitigating GHG

assess upstream or downstream GHG effects beyond the

emissions. The Court treated climate change and human

immediate project.

rights as central to its statutory inquiry under the Mineral Resources Act 1989 (Qld), indicating an emergent integration of human rights discourse into resource and land-use adjudication and followed a similar analysis by the Court in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6)286.

including the UK decisions noted above and Seven County

One potentially powerful implication of the ICJ Opinion is its use as a ‘legal shield’ for countries facing ISDS claims from foreign fossil fuel project investors where their project becomes unfeasible as a result of government climate mitigation actions.288 Whether the UK relies on the ICJ

The pending matter of Bowen Basin Coal Pty Ltd v

Opinion in defending this claim remains to be seen, but the

Environmental Advocacy in Central Queensland Inc

outcome could influence any future ISDS claim involving

concerning the approval of new coal seam gas wells in the

fossil fuel projects in Australia.

Bowen Basin will further test this integration, particularly in light of the ICJ’s articulation of states’ due diligence duties under the Paris Agreement.

Mitigation and biodiversity: Circular Head Coastal Awareness Network Inc v ACEN Robbins Island Pty Ltd The Supreme Court of Tasmania287 dismissed a challenge to the Robbins Island Wind Farm, holding that the decisionmaker had appropriately balanced climate-mitigation exemplifies the growing prevalence of “dual-mandate” disputes, in which renewable energy projects are contested on ecological grounds.

Such conflicts are likely to intensify as Australia seeks simultaneously to meet its emissions-reduction targets and its obligations under the Global Biodiversity Framework.

ICJ Advisory Opinion The ICJ Advisory Opinion on Climate Change (July 2025)

in global climate adjudication at present: European and international bodies emphasising comprehensive emissions assessment and due diligence constitute mandatory standards enforceable against governments and corporations; and Australia and the United States favouring institutional deference and narrow causal inquiry.

83

Future Outlook 2025 marks a pivotal year in the evolution of land-use and climate law with a maturation of Australian climate jurisprudence. Courts increasingly treat the scientific underpinnings of climate change as established, shifting their focus to the sufficiency of legal reasoning and evidentiary justification.

Practitioners and their clients should anticipate increasing demand for quantitative adaptation analysis, fugitive and Scope 3 emissions assessment, and integration of human rights perspectives in environmental approvals.

is likely to influence domestic and arbitral proceedings.

Climate regulation now sits squarely within a framework of

The Court unanimously held that States bear a stringent

normative international legal obligation; Pabai delineates

due diligence obligation to prevent significant GHG

the limits of common-law intervention; and Mount Pleasant

contributions and to conduct EIAs for activities producing

demonstrates the courts’ willingness to enforce statutory

substantial emissions, based on the best available science.

duties of climate consideration.

The joint declaration of Judges Bhandari and Cleveland extended this to Scope 3 emissions.

While the ICJ decision does not bind Australian courts without implementing legislation, the case does reflect customary international law and has automatic normative status in many States.

285. [2025] QLC 5.

286. [2022] QLC 21.

287. Circular Head Coastal Awareness Network Inc. v ACEN Robbins Island Pty Ltd [2025] TASSC 7.

288. See, for example, IISD, “Historic International Court of Justice Opinion Confirms States’ Climate Obligations” (28 July 2025) https:// www.iisd.org/articles/deep-dive/icj-advisory-opinion-climate-change

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benefits against potential biodiversity impacts. The case

Collectively, these cases demonstrate divergent trajectories

REFORM OF EPBC ACT

By SUGANYA PATHANJALIMANOHARAR

A

SUITE OF SEVEN environmental reform bills, including amendments to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), were tabled in

Parliament on 30 October 2025.

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The Samuel Review found the EPBC Act to be outdated and in need of fundamental reform. However, the recommendations of the review in relation to climate change were limited. The Samuel Review concluded that “[t]he EPBC Act should not

The Bills had been referred to the Senate Environment

duplicate the Commonwealth’s framework for regulating

and Communications Legislation Committee, which was

emissions”, recommending instead that proponents

due to receive submissions by December 2025 and report

transparently disclose the “full emissions profile” of their

by March 2026. However, the Government was able to

developments.289 It also considered that the EPBC Act should

pass the reforms (with some amendments) on Friday, 28

“require development proposals to explicitly consider the

November 2025 — the last Parliamentary sitting day of

effectiveness of their actions to avoid, mitigate or offset impacts

the year.

on nationally protected matters under specified climate change

The reform bills, which have now passed, are as follows: C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | R E F O R M O F E P B C AC T

Professor Graeme Samuel AC (Samuel Review).

scenarios”.290 Recommendation 2 was that the National Environmental Standards recommended by the Samuel

1. the Environment Protection Reform Bill 2025

Review should “explicitly consider the likely effectiveness of

(Reform Bill), which amends the EPBC Act;

avoidance or mitigation measures on nationally protected

2. the National Environmental Protection Agency

matters under specified climate change scenarios” and

Bill 2025 (NEPA Bill), creates a new national

“transparently disclose the full emissions of the development”.

environmental regulator, the National Environmental

Other recommendations also dealt with climate adaptation.291

Protection Agency; 3. the Environment Information Australia Bill 2025 (EIA Bill), establishing the statutory position of the Head of Environment Information Australia (HEIA), being a Senior Executive Australian Public Service employee within the Department of Climate Change, Energy, the Environment and Water; and 4. four separate bills concerning the imposition of general, restoration, customs and excise charges under the EPBC Act.

The Reform Bill

The Reform Bill introduces a provision requiring proponents to disclose estimates for Scope 1 and Scope 2 greenhouse gas emissions as part of the information requirements for a controlled action.292 Scope 1 emissions of an action are defined as emissions that are “a direct result of the action”, and Scope 2 emissions of an action are those that are “a direct result of any activity that generates electricity, heating, cooling or steam that is used by the taking of the action, but does not form part of the action”.293 Proponents are also to disclose associated emissions mitigation measures and abatement targets.

The Reform Bill amends the EPBC Act and is intended

However, Scope 3 emissions are not required to be

to implement the recommendations of the independent

disclosed in respect of fossil fuels that are exported and

review of the EPBC Act dated October 2020, led by

burned elsewhere.294 This appears inconsistent with the

289. Samuel Review, p5, 47-48.

290. ibid.

291. See, e.g., Samuel Review, Recommendation 25, p137.

292. See Reform Bill cl 191, which would insert new section 84A (Greenhouse gas emissions information).

293. ibid.

294. Cf ICJ Advisory Opinion dated 23 July 2025, in which the Court found that ‘the relevant conduct for the purposes of these advisory proceedings is not limited to conduct that, itself, directly results in GHG emissions, but rather comprises all actions or omissions of States which result in the climate system and other parts of the environment being adversely affected by anthropogenic GHG emissions’: at [94].

Samuel Review recommending disclosure of the “full emissions profile” of developments.

Moreover, the Scope 1 and 2 emissions required to be disclosed are not then required to be assessed as part of government decision-making under the EPBC Act. The explanatory memorandum for the Reform Bill makes clear that the disclosure requirements are information provisions only and “not a balancing consideration for decision making”.295 In Environment Council of Central Queensland Inc v Minister for the Environment and Water (the ‘Living Wonders’ case),296 the Full Federal Court rejected appeals by an environmental group regarding a proposed extension of underground mining operations at the existing Narrabri underground mine in NSW and a proposed increase to open cut coal extraction within the already approved Mount Pleasant project development area, also in NSW. However, Mortimer CJ and Colvin J (with whom Horan J concurred) observed: Notwithstanding our conclusions on the grounds of appeal, the arguments on this appeal do underscore the ill-suitedness of the present legislative scheme of the EPBC Act to the assessment of environmental threats such as climate change and global warming and their impacts on

The Court noted that section 527E of the EPBC Act and its approach to “indirect impact” is “especially ill-suited” to indirect impacts from “a global phenomenon such as climate change”, observing that the appeal proceeding and the merits decision-making underlying it “might be said to raise the question whether the legislative scheme is fit for purpose in this respect”.298

1989 and the Product Emissions Standards Act 2017, which were previously vested in the Minister or Department Secretary.299 The NEPA would undertake regulatory and implementation functions including issuing permits and licences, and undertaking compliance and enforcement activities. The CEO would not be subject to direction by any person in relation to those functions or powers. The Minister would have the ability to issue the CEO with a Statement of Expectations but not to direct the CEO or the NEPA. Under the EIA Bill, the statutory functions of the HEIA would include providing the Minister, the CEO and the public with “access to high-quality environmental information and data”, identifying and maintaining a public register of national environmental information assets critical to regulatory decision-making, and reporting on Australia’s State of the Environment. The HEIA is intended to be supported by Departmental staff made available by the Secretary in carrying out their statutory functions.

The HEIA would expressly not be subject to direction in respect of some, but not all, functions.300 For example, they could be subject to direction in respect of their

85

functions to provide ‘high quality information and data relating to the environment’ to the public or to ‘declare national environmental information assets’.301 The NEPA Act and the EIA Act will commence on 1 July 2026. It remains to be seen when the Reform Act will commence, noting that further subordinate legislation is required to implement the reforms, including the National Environmental Standards Consultation is open until 30 January 2026 on two draft National Environmental Standards: Matters of National

The reforms presently do not remedy the ill-suitedness

Environmental Significance (MNES) and Environmental

of the EPBC Act to assess climate change identified by

Offsets302.

the Court.

The NEPA and EIA Bills The National Environment Protection Agency Bill 2025 (NEPA Bill) would establish the role of the Chief Executive Officer (the CEO) of NEPA, who would be assisted by NEPA in the performance of their functions.

The functions to be conferred on the CEO are proposed to include functions under the EPBC Act, the Ozone 295. Explanatory Memorandum (EPR Bill) pp 8-9.

296. (2024) 304 FCR 91.

297. (2024) 304 FCR 91, 122 [140].

298. (2024) 304 FCR 91, 123 [143]-[144].

299. See, eg, Reform Bill cl 367-386, whereby the CEO is substituted for the ‘Secretary’ or the ‘Minister’ in various provisions of the Product Emissions Standards Act 2017.

300. EIA Bill cl 11.

301. EIA Bill cl 10-11.

302. See https://www.dcceew.gov.au/environment/epbc/epbc-act-reform/next-steps-on-environmental-law-reform]

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MNES in Australia. 297

Protection and Synthetic Greenhouse Gas Management Act

PLANNING LAW (VICTORIA)

By SUSAN BRENNAN SC

I

*

N 2025, A suite of statutory reforms has reinforced

emissions reductions targets by considering the likely

the importance of climate change considerations

extent to which the planning scheme or amendment

in planning decision making. These considerations

minimises greenhouse gas emissions, through measures

are reflected in the arguments advanced in planning

most relevant to strategic or precinct-scale responses,

disputes and are predicted to influence forthcoming planning decisions.

including:

87

(a) p rioritising urban renewal and infill development over new greenfield development outside of defined

Environment Act 1987 (PE Act), which must be

growth corridors;

considered in planning decisions now include:

(b) p lanning for an urban structure and layout that

to provide for explicit consideration of the policies and obligations of the State relating to climate change, including but not limited to greenhouse gas emissions reduction targets and the need to increase resilience to climate change, when decisions are made about the use and development of land.303

facilitates: i. a ccess to and use of public transport; ii. active transport, including pedestrian and bicycle networks; and iii. solar orientation of lots and solar access for future

Further, in preparing an amendment to a planning scheme, a planning authority must have regard to:

304

emissions reductions targets; and any significant risk to any use or development envisaged by the scheme or amendment that arises from, or is likely to arise from, the impacts of climate change.

development. (c) p lanning for projected increases in zero emissions vehicles at a precinct scale, including consideration of necessary infrastructure needs; and (d) p recinct-scale planning to support renewable energy infrastructure

A planning authority must also have regard to

the need to increase resilience to climate change when

Ministerial Direction No. 22 Climate Change

decisions are made about the use and development of land,

Consideration which was introduced on 11 September

considering as relevant:

2025. The Ministerial Direction requires a planning authority to have regard to:

* With input from Juliet Forsyth SC, Jordan Wright and Alexandra Guild 303. s4(da) Planning and Envoronment Act 1987 (Vic) (PE Act).

304. s12(2A)(a) PE Act.

(a) t he impact of climate change on natural hazards, including but not limited to risks related to bushfire

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The objectives of planning in the Planning and

and flood (riverine, drainage, overland flow, coastal),

health and wellbeing” and includes strategies to

erosion, landslip and landslide, heatwave and drought;

support development that contributes to cooler urban

(b) how the use and development of land envisaged by the planning scheme or amendment will be resilient to the impact of, or likely impact of, climate change on natural hazards, including through:

and cooler residential areas, require a permit to remove canopy trees in residential zones and impose tree canopy cover requirements of at least 20 per cent of site area for larger residential lots.306

ii. ensuring new use and development does not exacerbate

In addition to these reforms to the planning framework, a

risk to existing residents, property, infrastructure and

number of recent and pending decisions demonstrate the

the natural environment;

influence of climate change on land use and development proposals.

and appropriately designed inclusive of protection

For example, in Spring v Minister for Planning307, the

measures, to minimise exposure to risks posed by

Victorian Civil and Administrative Tribunal (VCAT) took

natural hazards; and

into account the impact of climate change on the Falls

proportionate to the risk and practical. (c) the provisions of the planning scheme, including State and regional planning policies in the Planning Policy Framework that relate to those natural hazards and climate change risks; and (d) the advice and views of applicable emergency C O M M BA R C L I M AT E C H A N G E R E P O R T 2 0 2 5 | P L A N N I N G L AW ( V I C T O R I A )

protect and enhance canopy tree cover to support greener

posed by natural hazards;

iv. ensuring identified protection measures are

Creek alpine resort in an application for infrastructure to expand its recreation and tourism offer beyond the winter ski season, as well as receiving evidence about the impacts of climate change on endangered alpine species.

In 51 Hardiman Pty Ltd v Melbourne CC & Ors308, VCAT considered the increased risk of flooding presented by climate change in determining whether to grant permission for a medium density residential

management and natural resource management

development in an urban renewal area designated for

agencies about the risks posed by climate change

intensification on low-lying flood prone area next to

impacts.

the Moonee Ponds Creek. The dispute concerned flood

In September 2025, Amendment VC268 made changes to the Victoria Planning Provisions (VPP) to implement the Victorian Transmission Plan 2025 which identifies land which is suitable for renewable energy infrastructure in renewable energy zones. Pursuant to new policy settings, decision makers are to facilitate renewable energy development in appropriate locations, including in renewable energy zones.305

hazard associated with projected flood conditions associated with climate change to the year 2100 rather than flood hazard under current conditions. Local planning policy encouraged development that is resilient to heat waves, water shortages, extreme storm events and sea level rise, and state planning policy sought to minimise the impacts of natural hazards and adapt to the impacts of climate change through risk-based planning.

In refusing to grant approval for a development which

Also in September 2025, Amendment VC283 introduced

would increase residential densities on the land, the

two new policies to the VPPs to address sustainable

Tribunal said:

development as one of the five pillars in Plan for Victoria 2025. Clause 12.06 (Sustainable development—Urban forests) has an objective to “protect and enhance tree canopy in urban areas” and a strategy for development to “contribute to achieving an overall 30 per cent canopy tree target for urban areas”. Clause 13.01-3S (Urban heat) introduces an objective “to reduce urban heat and minimise impacts of urban heat on human

305. Clause 19.01-2S VPP. 306. Clause 52.37.

307. [2025] VCAT 10 308. [2025] VCAT 222

controls brought in by Amendment VC289 which seek to

i. a voiding exposure of new use and development to risks

iii. ensuring new use and development will be located

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environments. These amendments are supported by new

Despite being of a similar density to residential development that has been permitted on the site, we consider allowing for the proposal would be a poor planning outcome. We say this knowing that references in the planning scheme to minimising risk to life, health and safety have been introduced into the LSIO under Amendment VC171 gazetted on 6 September 2021 and

CLIMATE CHANGE MITIGATION AND ADAPTION MEASURES ARE EXPECTED TO FEATURE PROMINENTLY IN A WIDE RANGE OF PLANNING DECISIONS OVER THE COMING PERIOD.

strengthening of references to climate change have been

for the Kentbruck windfarm project in mid-2025310

introduced under Amendment VC216 gazetted on 10 June

is scheduled to report imminently and is expected

2022 after the granting of the current permits on the site.

to address the climate change related implications

The planning scheme now has a more nuanced policy direction regarding the effects and response to climate

of the project, including in the context of the recent amendments to the PEA.

change and flooding. This, together with our level of

In July 2025, Melbourne City Council adopted the final

awareness of the extent of flood hazard now known

form of Amendment C376: Sustainable Building Design,

for the site associated with the effects of climate change

which was considered and supported by a planning panel

out to the year 2100, in our view, reduces the strength

in August 2024. Amendment C376 will introduce a

of reliance on arguments that the proposal represents a

municipal-wide schedule to the Design and Development

safer development outcome compared to what has been

Overlay that is directed to elevating environmentally

approved for the redevelopment of the site.

sustainable built form outcomes for new buildings and

site that we are aware will be exposed to a flood hazard,

additions in the City of Melbourne. Amendment C376 is with the Minister for Planning for approval.

irrespective of what controls and design elements are put

The hearing into the Western Renewables Transmission

forward with the proposal to protect future occupants,

Line has recently commenced311 and the duration of the

remains inappropriate because it places a large number of

scheduled hearings is indicative of the extent of local

people at potential for flood risk from a flood hazard that

community opposition to renewable energy related

is associated with flooding processes associated Moonee

infrastructure projects, notwithstanding the strong level

Ponds Creek [sic].

of policy support they enjoy.

309

Throughout 2025, local government has released flood

Hearings into structure planning for Suburban Rail Loop

modelling taking into account year 2100 climate change

East precincts in the latter half of 2025312 have included

affected flood conditions which will influence decisions

a strong focus on provision for tree canopy coverage

about the suitability of development in areas subject

in areas designated for higher density development to

to existing and future flood risk. Planning authorities

address the urban heat island effect as an important

are expected to progressively update planning controls

climate change mitigation measure.

to take account of flooding influenced by climate change. How future flood risk and the need for urban intensification to meet Victoria’s housing targets will be reconciled in flood-prone areas is yet to be satisfactorily

Climate change mitigation and adaption measures are expected to feature prominently in a wide range of planning decisions over the coming period.

resolved.

In terms of pending decisions, the advisory committee which considered the Environmental Effects Statement

309. [2025] VCAT 222 at [345]-[347].

310. Kentbruck Green Power Hub Project Inquiry and Advisory Committee, terms of reference, February 2025.

311. Western Renewables Link Inquiry and Advisory Committee, terms of reference, June 2025.

312. Suburban Rail Loop East Precincts Standing Advisory Committee, terms of reference, April 2025.

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The proposal to locate a residential development on a

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REGULATORY

(AUSTRALIAN COMPETITION AND CONSUMER COMMISSION)

By OREN BIGOS KC and REBECCA KELLY The ACCC’s response to greenwashing and climate change issues

S

INCE 2022, THE Australian Competition and

against Australian Gas Networks Limited (AGN)315 and

Consumer Commission’s (ACCC) compliance and

the other against Edgewell Personal Care Australia Pty Ltd

enforcement priorities have included focusing on

(EPCC) and Edgewell Personal Care Company (EPCC

misleading or deceptive environmental and sustain-

US).316 Both proceedings are ongoing.

ability claims. As noted in the 2024 Review, the ACCC had made it clear that its Sustainability Taskforce would continue to be on the lookout for businesses making misleading environmental claims. In 2025, the ACCC reaffirmed this priority and noted that it also intended to focus on greenwashing.313 In the past 12 months, the ACCC has obtained judgment in one greenwashing proceeding and commenced two further proceedings alleging greenwashing by corporates.

Pty Ltd (Clorox) pay pecuniary penalties of $8.25 million for making false or misleading representations that its “GLAD to be GREEN 50% ocean plastic recycled bags” (kitchen and garbage bags) were made using at least 50 per cent of recycled plastic waste collected from the ocean or sea, whereas this was not the case. In fact, the products were made from recycled plastic resin derived from recycled plastic collected from communities in Indonesia, with no formal waste systems,

distributor AGN made false and misleading representations in its “Love Gas” advertising campaign. In particular, that even though it knew the future of renewable gas was uncertain, that AGN made an unqualified representation to consumers that it would distribute renewable gas to households within a generation. The ACCC is seeking declarations, pecuniary penalties and other orders.317 In the EPCC/EPCC US proceeding, the ACCC alleges that EPCC or EPCC US made false or misleading claims that its Hawaiian Tropic and Banana Boat branded sunscreens were “reef friendly” including because they did not contain “oxybenzone or octinoxate”. The ACCC alleges that these statements were false or misleading because the sunscreens contained other ingredients which either cause or risk causing harm to reef and marine life.

which were situated within 50 kilometres of the shoreline,

Outside of court proceedings, in December 2024, the ACCC

and otherwise from non-recycled plastic, dye and processing

released its final guide on sustainability collaborations. This

aid.314 Clorox admitted the contraventions of ss18, 29(1)

included a ‘quick guide’ and five-step checklist for businesses

(a), 29(1)(g) and 33 of the Australian Consumer Law and the

that are considering working together to achieve better

parties resolved the proceeding by agreement. In addition

environmental outcomes. The guide is designed to assist

to pecuniary penalties, orders were made restraining Clorox

businesses, who are considering collaboration, to understand

from making the above representations, requiring Clorox to

their competition law obligations and where it may be

implement a compliance program, publish a corrective notice

appropriate to seek authorisation or another exemption

and pay a portion of the ACCC’s costs.

from the ACCC. The ACCC acknowledges that Australia is

Following its success in Clorox, in June 2025, the ACCC commenced two further greenwashing proceedings, one

91

committed to transitioning to a net zero economy and that it has a role to play as Australia’s competition regulator.318

313. ACCC, Compliance and Enforcement Priorities.

314. ACCC v Clorox Australia Pty Ltd [2025] 357, [1]-[2], [17].

315. ACCC v Australian Gas Networks Limited (ACN 078 551 685), VID812/2025.

316. ACCC v Edgewell Personal Care Australia Pty Ltd (ACN 601 894 795) and another, NSD1089/2025.

317. ACCC, Australian Gas Networks in Court over alleged greenwashing in renewable gas campaign, 26 June 2025.

318. ACCC, A guide to sustainability collaborations and Australian competition law for business, December 2024.

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On 14 April 2025, the Federal Court ordered Clorox Australia

In the AGN proceeding, the ACCC alleges that gas

The ACCC issued determinations granting authorisations or exemptions for several collaborations for projects relating to climate change issues, including: » In February 2025, granting authorisation (with conditions) to Coles, Woolworths and ALDI to continue their collaboration to recycle stockpiled soft plastics and implement a pilot in-store collection program. This authorisation followed an interim authorisation granted in November 2022 following the collapse of REDcycle which operated a soft plastics collection and recycling program.319 » In July 2025, granting authorisation with conditions to allow the Australian Sustainable Finance Institute and industry participants to collaborate on sustainable finance initiatives for five years.320 » In August 2025, a draft determination proposing to grant an exemption to the Battery Stewardship Council to continue to operate its scheme (which allows collaboration and price agreement between members) to facilitate appropriate disposal of end-of-life batteries.321 » In August 2025, a draft determination proposing to grant authorisation to allow the Soft Plastics Stewardship 92

Australia (a voluntary industry-led scheme) to collect and recycle soft plastic packaging from consumers.

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Scheme members currently include Woolworths, Coles, Aldi, Nestle, Mars and McCormick Foods.322 » In October 2025, granting authorisation to 1Circle Pty Ltd for it and the future members of five renewable energy

The Code provides that environmental claims are to be: » truthful and factual; » supported by evidence; » clear and not vague, having regard to the targeted customer; » be about a genuine (not overstated) benefit to the environment; and » if the claim relates to future matters, be based on reasonable grounds when made.

Whilst compliance with the Code is the responsibility of the advertiser, complaints can be made to Ad Standards.

Since 1 March 2025, 14 complaints have been made about environmental claims, with three of those complaints resulting in a determination of non-compliance with the Code.325

Private greenwashing claims In late 2024, the Australasian Centre for Corporate Responsibility (ACCR) claim against Santos Limited was heard by the Federal Court of Australia. The ACCR alleges that Santos engaged in misleading or deceptive conduct by representing that it has a clear and credible pathway to achieve ‘net zero’ scope 1 and 2 greenhouse gas emissions by 2040; and that hydrogen produced from natural gas with carbon capture and storage (blue hydrogen) is ‘clean’ and ‘zero emissions’. The parties are now awaiting judgment.

buying groups to collectively procure and give effect to long

In May 2025, the proceeding commenced by Parents for

term renewable electricity supply contracts.323

Climate Ltd (AP4CA) against EnergyAustralia, alleging

Greenwashing in Australian advertising

the company was misleading consumers through its “Go

On 1 March 2025, the Australian Association of National

Neutral products (including that they are carbon neutral)

Advertisers’ (AANA) Environmental Claims Code (Code)

were misleading because purchasing carbon credits does

came into effect, as part of the advertising industry’s self-

not eliminate the emissions produced by EnergyAustralia’s

regulation system. The object of the Code is to ensure

products. The “Go Neutral” product was removed from

that advertisers apply rigorous standards when making

the market in July 2024. In a statement announcing the

environmental claims and to increase public trust and

settlement, EnergyAustralia acknowledged that carbon

confidence in such claims. The AANA has also published a

offsetting is not the most effective way to assist customers

practice note to assist advertisers and encouraged them to

to reduce their emissions and confirmed that it had now

review the ACCC’s guide on making environmental claims.324

shifted its focus to direct emissions reductions.326

Neutral” electricity and gas products, settled. Parents for Climate argued that representations made about the Go

319. ACCC, ACCC authorises major supermarkets to continue cooperation on soft plastics recycling, 27 February 2025.

320. ACCC, ACCC authorises collaboration on sustainable finance initiatives, 10 July 2025.

321. ACCC, Battery Stewardship Council’s B-cycle scheme to continue under ACCC draft decision, 28 August 2025.

322. ACCC, ACCC proposes to authorise new scheme for soft plastics recycling, 11 August 2025.

323. ACCC, ACCC authorises 1Circle to enable collective procurement of renewable energy supplies, 8 October 2025.

324. Australian Association of National Advertisers, ‘Environmental Claims Code’, https://aana.com.au/self-regulation/codes-guidelines/ environmental-claims/.

325. Australian Gas Networks, Case Number 0058-25, 5 March 2025; Australian Gas Networks, Case number 0108-25, 21 May 2025; Alcoa Australia, Case Number 018-25, 20 August 2025.

326. EnergyAustralia, ‘Go Neutral Litigation – Energy-Australia acknowledges issues with “offsetting” and moves away from carbon offsets for its residential customers products’, https://www.energyaustralia.com.au/about-us/media/news/go-neutral-litigationenergyaustralia-acknowledges-issues-offsetting-and-moves, 19 May 2025.

What’s happening in other jurisdictions?

and would solve the ever-growing plastic waste crisis.”

Similar trends are continuing internationally, with

appeal filed by Exxon Mobile Corp.331 A similar complaint

corporates continuing to be tested on the veracity of their

was filed in April 2025, by the Commission of the

environmental claims, particularly around products being

Department of Licensing and Consumer Affairs and the

advertised as carbon neutral.

Government of the US Virgin Islands against PepsiCo and

The federal district court has remanded the lawsuit to state court, although this is currently the subject of an

In Germany, in April 2025, judgment was handed down in proceedings commenced by NGO Deutsche Umwelthilfe against Adidas in respect of its statement that it would

Coca-Cola, alleging that the companies have engaged in a disinformation campaign regarding the recyclability of single use plastic bottles.332

be “climate neutral by 2050” which was alleged to be

As of 30 June 2025, a cumulative 3,099 climate-related

misleading because it failed to disclose whether the target

cases had been filed in 55 national jurisdictions and 24

would be achieved through direct emission reductions or

international or regional courts, tribunals, or quasi-judicial

carbon offsets. The Court found that Adidas’s advertising

bodies.333 This figure includes more than 100 private

campaign breached the Act Against Unfair Competition and

greenwashing cases which have been filed globally since

emphasised that climate related advertising statements

2009.334

must be substantiated and clearly communicated.

327

Deutsche Umwelthilfe has commenced similar proceedings

What to expect in 2026

against Apple Distribution International Ltd, regarding

In 2026, we may see Australia’s first private greenwashing

three Apple Watch models which are promoted as being

judgment handed down in the ACCR proceedings against

CO2-neutral,

Santos. The outcome of which may determine whether there is likely to be an increase in private greenwashing

proceedings remain on foot.

litigation.

Similar proceedings have been commenced in Brazil where,

The ACCC has indicated that it will continue to focus on

in January 2025, the Brazilian Institute for Consumer

environmental claims. As such, in 2026 we expect the

Protection filed a judicial inquiry against Gol Linhas

ACCC to continue closely monitoring environmental

Aereas SA. The inquiry relates to the airline’s voluntary

claims made by businesses (particularly in highly

carbon offsets program and in particular the transparency

polluting industries); to exercise its powers to request

and effectiveness of the company’s claims regarding the

information and documents where businesses make broad

neutralisation of greenhouse gas emissions.330

environmental claims; and seek enforceable undertakings

In the United States, the People v Exxon Mobil Corp litigation commenced by the State of California in late

or commence proceedings where such claims cannot be substantiated.

2024 remains ongoing. The claim alleges that Exxon

The Senate Inquiry into Greenwashing remains on foot,

Mobil Corporation has contributed to the deluge of plastic

with a report currently due by 25 June 2026 (noting that

pollution that is harming California’s environment and has

was previously expected in 2025 but an extension has been

deceived consumers “by promising that recycling could

granted).335

327. Columbia Law School, Climate Change Litigation Database, ‘Deutsche Umwelthilfe v. Adidas’, https://www.climatecasechart.com/ document/deutsche-umwelthilfe-v-adidas_6220?q=adidas.

328. Columbia Law School, Climate Change Database, ‘Deutsche Umwelthilfe v. Apple Distribution International Ltd’, https://www.climatecasechart.com/document/deutsche-umwelthilfe-v-apple-distribution-international-ltd_ fe4d?q=apple+distribution+international.

329. Columbia Law School, Climate Change Database, ‘Deutsche Umwelthilfe v. Barilla Deutschland GmbH’, https://www.climatecasechart. com/document/deutsche-umwelthilfe-v-barilla-deutschland-gmbh_11f9?q=barilla.

330. Columbia Law School, Climate Change Database, ‘Instituto Brasileiro de Defesa do Consumidor (IDEC) vs. Gol Linhas Aéreas S/A (Disclosure of information and greenwashing)’, https://www.climatecasechart.com/document/instituto-brasileiro-de-defesa-doconsumidor-idec-vs-gol-linhas-aereas-s-a-disclosure-of-information-and-greenwashing_d7ee?q=gol+linhas.

331. Columbia Law School, Climate Change Database, ‘People v. Exxon Mobil Corp.’, https://www.climatecasechart.com/document/peoplev-exxon-mobil-corp_a435?q=people+v+exxon+mobil+corp.

332. Columbia Law School, Climate Change Database, ‘Commissioner of the Department of Licensing & Consumer Affairs v. PepsiCo, Inc.’, https:// www.climatecasechart.com/document/commissioner-of-the-department-of-licensing-consumer-affairs-v-pepsico-inc_41a4?q=SX-2025_ CV_00102.

333. UN Environment Programme press release ‘Over 3,000 climate litigation cases are reshaping global climate policy today’, https://www. unep.org/news-and-stories/press-release/over-3000-climate-litigation-cases-are-reshaping-global-climate, 3 October 2025.

334. UN Environment Programme, ‘Climate Change in the Courtroom: trends, impacts and emerging lessons’, Columbia Law School, Climate Change Litigation Report 2025, 41.

335. Parliament of Australia, Senate inquiry into Greenwashing.

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and Barilla Deutschland GmbH which

marketed one of its products as CO2-neutral.329 Both

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REGULATORY (AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION)

By DR LAURA SCHUIJERS Overview The Australian Securities and Investments Commission (ASIC) has commenced three proceedings this year relevant to climate change. » ASIC v Fiducian Investment Management Services

Misleading conduct (ESG greenwashing) Misleading conduct involving environmental, social and governance (ESG) claims was once again an enforcement priority for ASIC in 2025,336 this being the third

Limited (ASIC v FIMSL), an anti-greenwashing and

consecutive year that ASIC has pursued interventions

breach of duty case, challenges a financial services

to curb greenwashing and deter claims that overstate

entity’s conduct in relation to the description and

climate and other social and environmental benefits.

monitoring of an ESG fund, and alleges a failure to

ASIC v FIMSL

investors, including about fossil fuels.

In October, ASIC commenced civil penalty proceedings

» ASIC v Hollard Insurance Partners Limited (ASIC v

in the Supreme Court of NSW against Fiducian

Hollard), an insurance case, concerns an insurer’s

Investment Management Services Limited (FIMSL).337

alleged failure to adequately respond to an insured

FIMSL is the responsible entity of a registered managed

couple following a severe weather event that damaged

investment scheme called the Diversified Social

their home and left it uninhabitable.

Aspirations Fund (Fund). ASIC alleges that FIMSL

» ASIC v Delta Power & Energy (Vales Point) Pty Ltd

engaged in misleading conduct in contravention of

(ASIC v Delta), a market manipulation case, alleges

s 12DF of the Australian Securities and Investments

a price setting strategy that ASIC says was adopted to

Commission Act 2001 (Cth) (ASIC Act), and that FIMSL

manipulate the market in electricity futures contracts.

failed to discharge its duties as a responsible entity

The issues raised by ASIC v FIMSL and ASIC v Delta relate to climate change mitigation and the climate transition, each of which are undermined by false and misleading information. ASIC v Hollard highlights the pressure that the insurance sector is facing (and will continue to face) in response to the effects of climate change, and to inadequate climate change adaptation.

This year the Federal Court also imposed a penalty of $10.5 million in ASIC’s anti-greenwashing case against LGSS Pty Ltd (LGSS), a superannuation trustee.

with the degree of care and diligence that a reasonable responsible entity would exercise, in contravention of s 601FC(1)(b) of the Corporations Act 2001 (Cth) (Corporations Act).338 ASIC also alleges that FIMSL failed to comply with the applicable compliance plan, in contravention of s 601FC(1)(h) of the Corporations Act; in particular, it failed to properly respond to concerns raised by investors relating to shareholdings in major energy and mining companies.339 As to the misleading conduct aspect of the case, ASIC says that statements in the Fund’s PDS represented

336. See ASIC, ‘Enforcement priorities’ at https://www.asic.gov.au/about-asic/asic-investigations-and-enforcement/asic-enforcementpriorities/.

337.

‘Originating Process’, ASIC v Fiducian Investment Management Services Limited (Supreme Court of NSW, 2 October 2025) via the Plaintiff at https://download.asic.gov.au/media/snwbhm4n/25-225mr-originating-process-asic-v-fiducian.pdf.

338. ‘Statement of Claim’, ASIC v Fiducian Investment Management Services Limited (Supreme Court of NSW, 2 October 2025) via the Plaintiff at https://download.asic.gov.au/media/hetjwppb/25-225mr-statement-of-claim-asic-v-fiducian.pdf, [112]-[130].

339. ibid [131]-[135], and see [104]-[111].

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properly process complaints and concerns raised by

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that the Fund would only make investments in

ASIC v LGSS

companies that were considered positive for society

After successfully obtaining two anti-greenwashing

and the environment, would avoid making investments

penalties in 2024 for misleading conduct relating to

that were harmful to society and the environment

the portrayal of climate change and other ESG benefits

and, specifically, would avoid making investments in

(from Mercer Superannuation Australia Limited and

companies that (among other things) polluted the air,

from Vanguard Investments Australia Limited),347 a third

land or water unnecessarily.

penalty for such conduct was awarded this March.

340

ASIC alleges that these

representations were false or misleading or deceptive, or were liable to mislead the public.341 It says: “[a]t no time during the period between 3 October 2019 and 30 May 2024 did any of the underlying funds exclude investments in shares or companies that derived revenue from fossil fuels.”342 ASIC also alleges that statements made about the way in which the Fund was monitored were misleading.343 Additionally, ASIC claims that the alleged representations were representations about “future matters”, but that FIMSL did not have reasonable grounds for making them, in contravention of s 12BB of the ASIC Act.344

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In Australian Securities and Investments Commission v LGSS Pty Ltd (No 3)348, O’Callaghan J ordered LGSS to pay $10.5 million for misrepresenting the investments of Active Super. ASIC had alleged (and the Federal Court found, in 2024) that LGSS represented that Active Super would not make or hold investments in, among other things, companies that derived revenue from oil tar sands or a certain proportion of revenue from coal mining, when in fact it held investments contrary to these representations.349 In determining the appropriate penalty, O’Callaghan J found that misrepresenting the ethical nature of a significant part of its investments

As to the duties aspect of the case, ASIC alleges that

enhanced LGSS’s ability to attract investors to Active

FIMSL did not behave as a reasonable entity in FIMSL’s

Super, and enhanced its reputation as a provider of

circumstances would have with respect to monitoring

investment funds with ESG characteristics; as a result,

and reviewing the alignment of the Fund’s underlying

investors lost the opportunity to invest in accordance

investments with the Fund’s ethical investment

with their values.350 On 1 March 2025, LGSS ceased

objectives, nor with respect to identifying ESG risks and

acting as trustee for Active Super due to a merger; this

implementing adequate controls, reviewing, amending,

decreased the need for specific deterrence to weigh into

or appropriately qualifying the PDS (so that it was

the penalty amount.351

not misleading or deceptive), or complying with risk

FIMSL’s parent company, Fiducian Group Limited,

Insurance claims handling following severe weather

issued a statement in response to the proceedings on 3

In April, ASIC commenced Federal Court proceedings

October acknowledging ASIC’s claim and that it has fully

against Hollard Insurance Partners Limited claiming,

cooperated with ASIC.346

under s 13 of the Insurance Contracts Act 1984 (Cth),

management procedures.345

that Hollard breached a duty of utmost good faith in its assessment of an insurance claim made by a couple in regional Victoria after a major storm damaged the couple’s home.352 ASIC says that Hollard failed to make

340. ibid [114].

341. ibid [118]-[120].

342. ibid 1 (Summary of Claim, [B]).

343. ibid [121]-[127].

344. ibid [116]-[117], [124]-[125].

345. ibid [129] 346. Fiducian Group Limited, ‘Statement in response to ASIC action’ (ASX Announcement, 3 October 2025) available via https://www. asx.com.au/asx/v2/statistics/announcements.do.

347. ASIC v Mercer Superannuation Australia (Limited) [2024] FCA 850; ASIC v Vanguard Investments Australia Limited (No 2) [2024] FCA 1086; see Laura Schuijers, ‘Regulatory (Australian Securities and Investments Commission)’ in Australian Climate Change Litigation Annual Review (2024), 57-59.

348. [2025] FCA 205 349. ASIC v LGSS Pty Ltd (No 2) [2024] FCA 665.

350. ASIC v LGSS Pty Ltd (No 3) [2025] FCA 205 [136].

351. ibid [138].

352. ‘Concise Statement’, ASIC v Hollard Insurance Partners Limited (Federal Court of Australia, 10 April 2025) via the Plaintiff at https:// download.asic.gov.au/media/mrgmvdau/25-057mr-asic-v-hollard-concise-statement-sealed.pdf.

adequate emergency repairs, delayed in arranging

report (such as in product disclosure statements) to

temporary alternative accommodation, and delayed

mitigate the risk of being misleading. ASIC says that in

in notifying the couple that Hollard would not cover a

the early years of reporting, it will take a “proportionate

replacement roof, after having accepted the claim for

and pragmatic” approach to enforcement, focusing on

storm damage.353 As a result of the delays, and Hollard’s

misconduct of a serious or reckless nature.359

lack of clear communication, the couple (according to ASIC) “suffered uncertainty and risk of harm while living

2026

in damp and mouldy conditions”; their home “ultimately

In 2026 we can expect to see ASIC continue to pursue its

became uninhabitable and irreparable”.354

strategic focus on managing climate change-related risks

Energy market manipulation In June, ASIC commenced Federal Court proceedings against Delta Power & Energy (Vales Point) Pty Ltd (Delta), alleging that Delta manipulated the ASX 24 market for electricity futures contracts and contravened ss 1041B(1) and 908DA(1) of the Corporations Act.355 ASIC says Delta placed orders for certain futures contracts just before the ASX 24 market closed, which, it contends, did not constitute engagement by Delta in a genuine process of supply and demand.356 Rather, ASIC says the orders were placed as part of Delta’s “price setting strategy”

to the financial system, and its enforcement focus on misleading ESG-related claims, including climate change claims.

A limited liability clause in the sustainability reporting provisions means only ASIC (rather than private parties) can seek relief for misleading statements made in mandated climate-related disclosures,360 but ASIC’s indication that it will focus on prevention rather than enforcement in the early years of the new reporting provisions means things are likely to be relatively quiet on the litigation front in this particular area.

adopted to manipulate the daily settlement price of the

Two cases that were brought by private parties prior

contracts.357

to the commencement of the sustainability reporting

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Federal Court. The Australasian Centre for Corporate Responsibility’s case against Santos Limited, alleging

Requirements to disclose climate-related financial risks

misleading representations about Santos having a

came into effect this year for certain Australian entities

clear and credible pathway to net zero, and misleading

who report under Chapter 2M of the Corporations Act.

representations around natural gas and blue hydrogen

Mandatory climate-related risk reporting, increasingly

being ‘clean’, remained before the Court in 2025 after

common around the world, responds to the financial

being heard in late 2024.361 A judgment is expected in

system risk driven by climate change. Addressing climate

2026. Greenpeace Australia Pacific Limited’s case against

change risk is an ongoing strategic focus for ASIC.358 In

Woodside Energy Group Ltd, concerning statements

March, ASIC published Regulatory Guide 280 (RG 280)

made by Woodside about its net zero by 2050 plan, and

on sustainability reporting, which covers how entities

Woodside’s interim emissions reduction targets, also

subject to the reporting requirements should prepare

remained on foot in 2025.362 Updates can be expected

sustainability reports in accordance with the legislative

next year.

requirements. It also covers how they should disclose climate-related information outside their sustainability

353. ibid [2].

354. ibid.

355. ‘Originating Process’, ASIC v Delta Power & Energy (Vales Point) Pty Ltd (Federal Court of Australia, 30 June 2025) via the Plaintiff at https://download.asic.gov.au/media/m0jfsi1g/25-115mr-asic-v-delta-originating-process.pdf.

356. ‘Concise Statement’, ASIC v Delta Power & Energy (Vales Point) Pty Ltd (Federal Court of Australia, 30 June 2025) via the Plaintiff at https://download.asic.gov.au/media/xyolblst/25-115mr-asic-v-delta-concise-statement.pdf [14].

357. ibid.

358. ASIC, ‘Our vision and strategic priorities’ at https://www.asic.gov.au/about-asic/what-we-do/our-role/our-vision-and-strategicpriorities/.

359. ASIC, Regulatory Guide 280: Sustainability reporting (March 2025) at https://download.asic.gov.au/media/j4rhwyiz/rg280published-31-march-2025.pdf, 48-49.

360. Corporations Act s 1707D. 361.

Australasian Centre for Corporate Responsibility v Santos Limited, NSD858/2021, see Court file at https://www.comcourts gov.au/file/ Federal/P/NSD858/2021/actions.

362. Greenpeace Australia Pacific Limited v Woodside Energy Group Ltd, NSD1520/2023, see Court file at https://www.comcourts.gov. au/file/Federal/P/NSD1520/2023/actions.

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Climate-related financial disclosures

legislation remained on foot in 2025, each before the

SHIPPING LAW

By MATTHEW HARVEY KC and DR DAYE GANG

Shipping continues to be a site of climate progress

S

HIPPING AS AN industry transports 80 per cent of the world’s goods by weight, or 12 billion tonnes of goods in 2024. It produces approximately 11 per cent of emissions in the transport

industry. The International Maritime Organisation

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(IMO) identifies transport of goods by ship as the most energy-efficient mode of transport compared to trans-

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portation by truck and air freight.

Its major development of 2025 is the proposal of the Net-Zero Framework, aiming for net zero emissions by 2050. If passed, it would be the first in the world to combine mandatory emissions limits and GHG pricing across an entire sector, including by the imposition of financial penalties. It would be passed as an amendment to the International Convention on the Prevention of Pollution from Ships (MARPOL), specifically Annex VI, which would pass the Net-Zero Framework into hard international law. Annex VI has 108 States

Nevertheless, not satisfied with the shipping industry’s

Parties, covering 97 per cent of the world’s merchant

contribution to global greenhouse gas emissions, the

shipping fleet by tonnage, so the impact would be truly

IMO has this year approved draft net-zero regulations to

global.

set mandatory marine fuel standards and GHG emissions pricing to address the climate impact of shipping, including penalties and rewards for ships using more or less intensive fuels. This is consistent with our prediction last year that climate litigation and arbitration in the shipping industry will aim for systemic improvement, including in the increased adoption of green fuels.

As for broader international law on the sea, the International Tribunal for the Law of the Sea (ITLOS) issued a unanimous advisory opinion in 2024 on States’ obligations to protect and preserve the world’s oceans from climate change impacts, such as ocean warming, sea level rise and ocean acidification. The request was made by the Commission of Small Island States on Climate

There were no climate arbitration or litigation cases with

Change and International Law in 2022, reflecting the

a nexus to Australia relating to shipping this year, as last

trend of public international law advisory opinions to

year. This may partly be explained by the complexity

take two years to resolution.

of shipping laws and practices. Unlike more established forms of climate litigation, such as applications for judicial review or greenwashing claims under the Australian Consumer Law, the laws governing shipping are usually the domain of specialist practitioners, and their clients are generally inclined to get on with business.

industry is the IMO’s own leadership in regulation.

Although advisory opinions themselves are non-binding, they declare existing law: in this case, the application of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to States’ obligations. The ITLOS confirmed that anthropogenic greenhouse emissions qualify as “pollution of the marine environment” under UNCLOS. There is a clear intersection between

Developments in public international law

the proposed Net-Zero Framework amendments to

Another factor that may explain the limited number of

gases as pollution of the marine environment for the

climate arbitration and litigation cases in the shipping

purposes of UNCLOS. This should embolden plaintiffs

MARPOL, airborne pollution in the form of greenhouse gases, and the classification of those same greenhouse

to pursue climate litigation where shipping companies, or

regulations and policies have not kept up with the IMO’s

States by their controls over the shipping industry, fail to

guidance and—eventually—amendments to MARPOL,

reduce the production of greenhouse gases and thereby

companies in the shipping supply chain can trigger

pollute the marine environment.

systemic changes through litigation. Such litigation can

Beyond the 200 nautical miles regulated and protected

by UNCLOS, 50 states have ratified the Agreement

draw its content from the ITLOS advisory opinion and the highly anticipated Net-Zero Framework.

under the United Nations Convention on the Law

Causes of action common in climate litigation can all

of the Sea on the Conservation and Sustainable

be applied in the shipping context. The ACCC sued

Use of Marine Biological Diversity of Areas beyond

Australian Gas Networks (AGN) for misleading or

National Jurisdiction (BBNJ Agreement or the High

deceptive conduct, and so can private consumers and

Seas Treaty), of the 60 required for it to enter into

companies in respect of claims by shipping companies

force. Its objective is to conserve and sustainably use

that, to take the AGN example, overstate the transition

marine biological diversity of areas beyond national

to clean energy. Litigation can be expected during the

jurisdiction—as in, in the high seas. If and when it comes

green fuel transition where companies might make

into effect, States Parties will be able to propose high seas

claims about their progress on transition before those

marine protected areas, and will be required to conduct

claims can be supported by evidence and action, such as a

environmental impact assessments in marine areas

case where Etsy was sued for allegations of greenwashing

within their national jurisdiction or within their control

in their claims that their shipping emissions had been

on the high seas. If and when Australia updates its

carbon-offset363.

domestic laws for consistency with the obligations in the High Seas Treaty, those obligations may be enforceable.

There are opportunities and risks in the many jurisdictions governing a ship, its cargo, its personnel, and the ports at which it berths. The risks are somewhat obvious. On the regulatory side, they include the legislation that domesticates MARPOL and other

be seen what claims emerge. As old shipping routes are replaced by new, shareholders or investors can sue for losses in value where previous competitive edges are lost. There may be insurance disputes as climaterelated impacts become uninsurable, or disputes between contracting parties over events that may have constituted force majeure in the past but should have been accounted for in pre-contractual negotiations. The latter is more likely to be arbitrated. Such arbitrations may be occurring, but not publicly reported upon.

international treaties on the law of the sea, the Protection

Ultimately, climate litigation in the shipping industry

of the Sea (Prevention of Pollution from Ships) Act

will be focused on following the waves of greenhouse

1983 (Cth) and the Navigation Act 2012 (Cth). On the

gas reduction and alternative fuels incentivisation,

commercial side, they include damages claims arising

led globally by the IMO. Businesses in the shipping

from the energy transition. Lloyd’s Register reports more

supply chain should be open to using arbitration or

than 50 per cent growth in alternative-fuelled ship orders

litigation to lead and enable their own transition and

in 2024, suggesting there is increasing litigation risk in

compliance, rather than be held back from implementing

the construction and maintenance of green fuels, the

new competitive advantages by slow policy reforms or

safety standards to guard them, the facilities to maintain

business partners. As for regulators such as Australian

them, and the ships they will power. Clean fuels are

Maritime Saftey Authority and the ACCC, existing

increasingly becoming the counterfactual that plaintiffs

laws and priorities on sea pollution and greenwashing

can rely on to point to some breach of duty by a shipping

(respectively) can equally be used to publicly hold bad

company or a State in regulating its shipping industry.

actors to account.

Conversely, companies in the shipping supply chain also have opportunities to challenge government regulations and competition policies to enable and incentivise emerging climate-friendly practices. Where domestic

363. Blackburn v Etsy (2:23-cv-05711).

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Emerging litigation risks and opportunities for companies in the shipping supply chain

As litigation is highly fact-dependent, it remains to

SUPERANNUATION LAW

By NAWAAR HASSAN

T

HIS YEAR HAS seen two notable decisions

reinvested for the benefit of members at the end of each

at the intersection of climate change and

year. At the time of the decision, LGSS had entered into

superannuation.

a successor fund transfer, which would soon merge all

In ASIC v LGSS Pty Ltd (No 3),364 the Federal

100

Court imposed significant pecuniary penalties on the

ASIC submitted that aggregate penalties of $13.5 million

trustee of a superannuation fund who had engaged in

were appropriate, in line with those imposed recently

misleading conduct about investment in oil tar sands and

in relation to similar conduct by other superannuation

coal mining investments. The Court emphasised that

trustees, being $12.9 million in Vanguard Investments,367

“greenwashing” conduct can be characterised as very

and $11.3 million in Mercer.368

serious even where it does not occasion specific financial loss. High penalties may be necessary to achieve general deterrence, even if there is low risk of the conduct

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member benefits to another fund.

recurring, and even where the penalty will ultimately erode member funds rather than trustee profits.

LGSS submitted that penalties should be no more than $2.456 million, as a higher amount would have a direct negative impact on members. As trustee of a profit-tomembers fund, LGSS had limited funds to cover any penalties and would have to rely on its insurance cover.

In Spence v American Airlines Inc,365 the United States

That attracted a tax liability which would ultimately

District Court considered conflicts between climate-

mean that at least 30 cents on the dollar of any penalty

based investment strategies and the duties of pension

exceeding $2.456 million would come from funds

fund managers to act solely in the financial interests

otherwise available to members.

of members. The trustees breached their duties by uncritically allowing investment managers to pursue climate-based goals rather than financial returns.

The Court’s decision The Court rejected LGSS’s submission, emphasising that

ASIC v LGSS Pty Ltd (No 3)

specific and general deterrence is the primary objective

In 2024, the Federal Court found that the trustee of the

Australian Securities and Investments Commission Act. The

Active Super superannuation fund (LGSS) had made

penalty must be fixed at a level that ensures that it would

false and misleading representations about the fund’s

not be regarded as an acceptable cost of doing business.

environmental, social and governance (ESG) credentials, including its level of direct and indirect investment in coal mining and oil tar sands.366

for imposing pecuniary penalties under s 12GBB(5) of the

Whilst LGSS’s conduct had not caused any financial loss to investors, this did not stop the contraventions being characterised as very serious. The Court accepted that

LGSS operated a profit-to-member model and therefore

“the real harm of greenwashing is not the harm to an

made little after-tax profit. The profits of the fund were

individual investor, but rather the harm more generally to

364. Australian Securities and Investments Commission v LGSS Pty Ltd (No 3) [2025] FCA 205.

365. Spence v. American Airlines, Inc. 775 F.Supp.3d 963 (2025).

366. Australian Securities and Investments Commission v LGSS Pty Ltd [2024] FCA 587. For a summary of this decision see Australian Climate Change Litigation Annual Review 2024.

367. Australian Securities and Investment Commission v Vanguard Investments Australia Ltd (No 2) [2024] FCA 1086.

368. Australian Securities and Investment Commission v Mercer Superannuation (Australia) Ltd (No 2) [2024] FCA 850.

ESG programs as a whole and investor confidence

solely in the retirement Plan’s best financial interests,

in them”.

both in making investments and exercising proxy voting

To fix a penalty by reference to a sum that seeks to guarantee that fund members suffer no indirect loss by a reduction in their returns would neutralise the sting

powers. Rather, they allowed their corporate interests, as well as the ESG objectives of BlackRock, to influence management of the Plan.

of any penalty, and would therefore not achieve much

The Court defined “ESG investing” as that which is

deterrent effect.

“aimed at, in whole or part, bringing about certain types

The conduct continued over a period of 2.5 years, concerned substantial investments and was likely to have led to investors losing confidence in ESG programs.

of societal change”. It is “a strategy that considers or pursues a non-pecuniary interest as an end in itself, rather than as a means to some financial end”.

LGSS failed to have in place properly functioning systems

ESG investing was distinguished from investing that

to ensure its representations were not false or misleading,

aims to reduce material risks or increase return for the

and this failure rested with senior management. Further,

exclusive purpose of obtaining a financial benefit. The

when confronted by ASIC, LGSS ran a host of “contrived

Court considered, as an example, an energy company

arguments” in its defence at trial.

which receives a credible projection that the demand

In light of these factors, the Court imposed an aggregate pecuniary penalty of $10.5 million.

Spence v American Airlines, Inc. Spence v American Airlines, Inc was a class action brought

by American Airlines employee pilots who invested in a defined contribution retirement plan offered

by American Airlines (Plan). This was similar to an “accumulation” style superannuation product which of an individual account reflecting the investment performance of any pre-tax contributions by the participant or employer, less any fees. The Plan was managed by American Airlines and the American Airlines Employee Benefits Committee (EBC). The Plan had approximately USD 26 billion under management.

The Plan relied on external investment managers to invest funds on behalf of participants and beneficiaries, the largest of whom was BlackRock—an industry leader in investment management and advisory services. American Airlines and EBC also delegated the Plan’s “proxy voting” powers to BlackRock, as it was

To maximise shareholder value, the company plans to dramatically ramp up oil and gas production to make as much money as possible. An investment manager states in response that it will wield its delegated proxy authority to vote against the company’s present path or management, which will cause the company’s stock to fall and the shareholders to lose financial value. This is ESG investing because it is based on the investment manager’s non-pecuniary climate change agenda. It still qualifies as ESG investing if the investment manager believes there are simultaneously some financial benefits to reducing fossil fuel production, because they are acting in a manner inconsistent with the company deriving the greatest profit, but instead acting in favour of the mixed benefits which contain some non-pecuniary goals.

The Court emphasised that there must be a “sound basis” for characterising something as a financial benefit. ERISA imposed “an objective, analytically rigorous standard when it comes to a fiduciary exclusively pursuing the best financial interests of the Plan”. A financial benefit could not be determined by reference to subjective labels.

impracticable to handle the volume of shareholder voting

In spite of BlackRock’s obligations to discharge its duties

rights internally.

as proxy voting delegate in the best interest of the Plan’s

The plaintiff claimed that American Airlines and EBC had breached fiduciary duties imposed by the Employee Retirement Income Security Act of 1974 (ERISA) by investing—or relying on others to invest—the employees’ retirement assets towards ESG objectives rather than exclusively financial returns.

The Court’s findings The Court found that American Airlines and EBC breached their fiduciary duty by failing to loyally act

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beneficiaries, BlackRock had express policies to the effect that it would shift away from managing assets solely for the financial benefit of the Plan, towards the pursuit of ESG objectives. It publicly vowed to support more shareholder proposals on climate change, even at major energy companies that make money from the production of fossil fuels, with the aim that BlackRock would “play their part in reducing global warming”. BlackRock opposed several management-recommended directors at energy companies because they failed to meet specified climate goals. For example, it supported dissident

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provided a retirement benefit consisting of the value

for fossil fuels will rapidly increase in the coming years.

directors endorsed by a climate activist firm because Exxon failed to meet BlackRock’s climate demands.

BlackRock’s proxy votes were decisive in three dissident directors being elected. Exxon’s stock price, along with other energy stocks, fell in response.

duties and exercise powers in the best financial interests of members. Whilst the United States legislation considered in Spence is couched in different—and perhaps stronger—language, the reasoning remains relevant.

through a strictly financial lens, this did not describe

The financial risks of climate change may certainly be

BlackRock’s activities—which pursued a non-pecuniary

relevant in formulating investment strategies, but the

interest as an end in itself and not as a means to some

reasoning in Spence highlights a risk for trustees who do

financial end.

not maintain a sound objective basis in assessing the

superficially pledged allegiance to an economic interest” but “never gave more than lip service to show how its actions were actually economically advantageous to its clients. Absent a cognizable basis for claiming that certain ESG considerations capture material financial risks, slapping the label ‘financial interest’ serves as a mere pretext. BlackRock regularly employed rhetorical devices—such as the ‘long-term modifier’—to discuss some amorphous and unsupported financial benefit of an ESG factor in order to shift attention away from its non-

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In Australia, a superannuation trustee must perform their

Whilst it is permissible to consider ESG risks when done

BlackRock “couched its ESG investing in language that

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Relevance in the Australian context

pecuniary goals”.

impact of those risks on financial returns. The wholesale avoidance of certain investments on climate change grounds may be open to question.370 There is also risk in using climate-based investment which lacks sound financial basis as a marketing strategy to attract new members, putting the trustee’s corporate interests in conflict with members’ financial interests.

Recent international trends Spence follows Wong v New York City Employees’ Retirement System, a proceeding brought in the New York Supreme Court by members of retirement pension plans for New York City employees. The members

American Airlines and EBC never asked BlackRock to

alleged that the trustees had breached their duties by

provide any financial or empirical analysis justifying its

indiscriminately withdrawing all investments in fossil

ESG investing as in the best interests of the Plan. They

fuel securities following a pressure campaign mounted

“accepted without question the notion that a future

by public officials and environmental activists, and in

transition to a green, low-carbon world would occur”.

particular a plan initiated by former Mayor Bill de Blasio.

They did not take any steps to ensure BlackRock acted in

They alleged the decision was driven by environmental

the best financial interests of the Plan.

goals unrelated to the financial health of the plans, and

American Airlines and EBC also allowed their own interests to influence management of the Plan. BlackRock was not only one of American Airlines’ largest shareholders, it also financed significant corporate debt, meaning that it was in American Airlines’ corporate interests to please BlackRock. American Airlines and EBC impermissibly allowed corporate interests to influence the management and oversight of the Plan, by allowing BlackRock to use Plan assets with little oversight or accountability in the pursuit of non-pecuniary ESG investing and proxy voting.

Whilst the Court found ESG investments underperformed traditional investments by approximately 10 per cent, the plaintiff ultimately failed to establish any actual monetary losses to the Plan. The Court granted injunctive relief only.369

in particular a commitment to “net zero” greenhouse gas portfolios by 2040. During the same period that the trustees were divesting from energy companies, those companies delivered “exceptional” shareholder returns, with many outperforming the index by orders of magnitude. They also alleged that the trustees had voted to allocate more assets to “green” investments without credible evidence that green investments perform as well as, or better than, the market as a whole.

The claim was dismissed in February 2024 for lack of standing, as the pension plans in issue were “defined benefit” plans in which the plaintiffs were entitled to a fixed benefit regardless of whether they won or lost the action. The plaintiffs were therefore unable to show cognizable harm. An appeal against the standing decision was dismissed in March 2025.371

369.

Spence v American Airlines, Inc, United States District Court Civil Action No. 4:23-cv-00552-O, Final Judgment made 30 September 2025.

370. For deeper analysis of these issues, see Justice Jackman’s speech “Superannuation Trustees’ Duty to Make Money for their Beneficiaries”, Law Council of Australia Superannuation Lawyers’ Conference, 28 March 2025.

371. Wong v New York City Employees’ Retirement System 2025 NYSlipOp 01332 (11 March 2025).

WHILST THOSE RECENT CASES IN THE UNITED STATES HAVE INVOLVED MEMBERS OPPOSING DIVESTMENT FROM FOSSIL FUELS, OTHER CASES IN RECENT YEARS HAVE INVOLVED ATTEMPTS TO ENFORCE DIVESTMENT.

Whilst those recent cases in the United States have

for the allegation. The Board was under a regulatory duty

involved members opposing divestment from fossil fuels,

to exercise powers of investment to ensure the security,

other cases in recent years have involved attempts to

quality, liquidity and profitability of the investments

enforce divestment.

as a whole, and to ensure that assets were properly

In the 2023 UK case of McGaughey v Universities Superannuation Scheme Limited,372 members of a superannuation fund sought to bring derivative proceedings against the trustee company’s directors for alleged breach of directors’ duties. The members claimed that the scheme continued to invest in fossil fuels and risks involved in such investments. They also alleged that

any particular asset. The Court ultimately found that the claim was an “attempt to challenge the management and investment decisions of [the trustee] without any ground upon which to do so. There is nothing in the pleading or the evidence to suggest that [the trustee] has exercised its powers in an improper fashion”. The Court found that the claim was “bound to fail”.

in failing to have a plan or in having a “mere ambition”

In the 2022 case of Dawson v Murphy, members of the

to be carbon neutral by 2050, the directors failed to take

New Jersey Pension Fund alleged that investments in

into account relevant considerations including a member

oil and gas companies violated their right to a stable

survey. They alleged that the long term interests of the

environment under the New Jersey Constitution,

scheme could only be met by “an immediate plan for

violated the “public trust” doctrine and breached

disinvestment”.

duties to pension beneficiaries. The Superior Court of

The Court of Appeal found that the Board had been provided with annual updates and training on climate change, and had been advised that divestment was not

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New Jersey Appellate Division refused leave to amend the proceeding to bring such claims as a “fruitless endeavour”.373

a proper way to achieve net zero, but that the scheme

In a South Korean proceeding filed in the Seoul Central

would have to engage with the assets and markets in

District Court in 2024, members of the National

which it invests. The Court found there was no prima

Pension Service allege breach of fiduciary duty by failing

facie case of loss as a result of the alleged failure to divest,

to address climate-related risks in the management of

nor any causal connection between investment in fossil

pension funds.374 The case remains pending.

fuels and changes to the plaintiffs’ benefits. There was no evidence to support allegations that the directors had put their own beliefs with regards to fossil fuels above the interests of the beneficiaries, and that a survey of a tiny proportion of active members was not a sufficient basis

372. McGaughey v Universities Superannuation Scheme Limited [2023] EWCA Civ 873.

373. Dawson v Murphy et al N.J. Super. App. Div. Oct. 29, 2024.

374. Kim Min et al v Kim Tae-Hyun: https://cdn.climatepolicyradar.org/navigator/KOR/2024/kim-min-et-al-v-kim-tae-hyun-et-al_35a3 c08fa60726cfe4d0a09ede3aef93.pdf

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failed to form an adequate plan to deal with the financial

diversified in such a way as to avoid excessive reliance on

WORKPLACE LAW

By JOEL FETTER and JIM HARTLEY

A

S AT THE date of writing, the authors have

by insisting on the use of air-conditioning). Employers

not identified any Australian employment

often have a legal duty via enterprise agreements to

or industrial cases decided this year, or

consult with workers and unions on particular topics, and

pending litigation, meaningfully connect-

consultation obligations regarding health and safety are

ed with climate change. That is despite that there is obvious potential for such litigation. The object of this paper is to identify overlaps between climate change and employment/industrial law of a kind that may give rise to dispute and litigation.

Work health and safety

Litigation concerning breaches of occupational health and safety legislation, or alleging negligence, breach of enterprise agreement terms, or breach of contract against employers, may arise out of enhanced risks in the workplace, or failures to comply with consultation requirements.

including to take reasonable care for the health and

Where any changes made by employers to address

safety of their employees (as well as contractors and

the risks of climate change result in prejudice or

other workers) who are at the workplace or at other

inconvenience to employees (in the example above,

places which the employer controls.375 Climate change

by requiring employees to themselves incur the cost of

is likely to increase the level of risk for existing hazards

running an air-conditioner or air filtration in a home

(particularly those caused by heat),376 and may also give

workplace), that may provoke individual and collective

rise to new hazards (e.g., caused by flooding or storms).

bargaining over who should bear the cost of such

As such, employers will need to turn their mind to these

changes, as addressed in the next section.

new risks and hazards and take reasonable steps to avoid or mitigate foreseeable harm. This may involve changing

Conditions of work more generally

policies about how work is performed, or installing new

Minimum conditions of work are set out in the National

equipment.

Employment Standards in the Fair Work Act 2009 (Cth),

These changes may significantly affect workers, including where the employer seeks to control the conditions under which a worker works from home (for example,

105

and may also be set out in (inter alia) modern awards, enterprise agreements, or individual contracts.

Climate change may well alter the parties’ interests,

375. See, e.g., Work Health and Safety Act 2011 (Cth), Pt 2, Divs 2–4; Work Health and Safety Act 2011 (ACT), Divs 2.2–2.4; Work Health and Safety Act 2011 (NSW), Pt 2 Divs 2–4; Work Health and Safety (National Uniform Legislation) Act 2011 (NT), Pt 2, Divs 2–4; Work Health and Safety Act 2011 (Q), Pt 2 Divs 2–4; Work Health and Safety Act 2012 (SA), Pt 2, Divs 2–4; Work Health and Safety Act 2012 (Tas), Pt 2 Divs 2–4; Occupational Health and Safety Act 2004 (Vic), Pt 3, Divs 2–5; Work Health and Safety Act 2020 (WA), Pt 2 Divs 2–4.

376. See, e.g., A Ireland, D Johnston, R Knott, “Heat and worker health” (2023) 91 Journal of Health Economics (https://doi. org/10.1016/j.jhealeco.2023.102800), esp. at pp 2, 6, 7 (Table 2), 11, 14 (“a 1.5º C increase in temperatures costing an additional AU $54.8million each year in heat-related injuries and diseases at work.”

377. See, e.g., Work Health and Safety Act 2011 (Cth), Pt 5; Work Health and Safety Act 2011 (ACT), Part 5; Work Health and Safety Act 2011 (NSW), Pt 5; Work Health and Safety (National Uniform Legislation) Act 2011 (NT), Pt 5; Work Health and Safety Act 2011 (Q), Pt 5; Work Health and Safety Act 2012 (SA), Pt 5; Work Health and Safety Act 2012 (Tas), Pt 5; Occupational Health and Safety Act 2004 (Vic), Part 4; Work Health and Safety Act 2020 (WA), Pt 5.

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Employers have duties regarding health and safety

also found in work health and safety legislation.377

DISPUTES OF THIS KIND MAY LEAD TO INDIVIDUAL NEGOTIATION, COLLECTIVE BARGAINING, APPLICATIONS TO VARY AWARDS, OR OTHER FORMS OF LITIGATION.

causing them to seek different arrangements. For

This sometimes happens in Australia.382 However,

example, as the outdoor climate becomes more

these kinds of issues seem infrequently (to the authors’

unpredictable and hazardous, workers may insist on

observation) to have led to litigation. That is not to say that

performing more work indoors, or under changed

they never do: in 2024, there was a dispute about Sydney

conditions. If employers’ costs of providing a workplace

Trains’ policy concerning the wearing of long pants in view

rise (e.g., cooling costs, air filtration, other costs of

of the content of an enterprise agreement clause providing

building or retrofitting to reduce climate risk), they may

that, “the Employer will provide Employees the option of

wish to avoid such costs by directing work be done from

wearing shorts and other uniform items suitable for hot

home, or reducing the size of the office (and reducing the

weather conditions other than in circumstances where there

workspace given to each worker). Disputes of this kind

is an unacceptable risk to safety.”383 But it is not, as a review

may lead to individual negotiation, collective bargaining,

of the databases suggests, a frequent area of litigation.

applications to vary awards, or other forms of litigation.

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Part of the reason for this may be the existence of the

Industrial activity and industrial action relating to heat

work health and safety regimes outlined above. Another

Perhaps the most-obvious way that climate change

of inclement weather. For example, recent CFMEU

affects working conditions is heat.378 That there is ample

Victorian agreements contain a clause dealing with

scope for industrial disputation concerning working in

“Inclement Weather,” providing hot weather guidelines,

heat is apparent from overseas experience. For example,

temperature measurement, working arrangements in

in 2023, the Teamsters (representing transport workers)

heat (including when work will stop), and payment

ratified a contract with UPS which contemplated the

for time lost due to inclement weather, up to a certain

installation into delivery trucks of air conditioning and

amount per calendar month.384 There is a less prescriptive

fans.

inclement weather clause in the relevant modern

379

Had this not occurred, however, the possibility

was that 340,000 workers would strike.380 In 2021, again in America, fast-food workers staged walk-outs over unsafe heat.381

part of it may be the existence of clauses in enterprise agreements providing adequately for the consequences

award.385 But such provision differs. For example, in relation to agricultural workers, some clauses provide for payment

378. See, e.g., Australian Climate Service, “Australia’s National Climate Risk Assessment: An Overview” (2025), recording that “Increases in extreme heat and heatwaves will increase health risks and heat-related mortality, making it harder to work outdoors and respond to disasters” (p iv), “Extreme temperatures are likely to increase nationwide (very high confidence), […]. Severe and extreme heatwave events are projected to double if global warming reaches +2.0ºC and more than quadruple under +3.0ºC of warming” (p 11), “Extreme heat is likely to reduce productivity of outdoor workers” (p 29), “Between 700,000 (+3.0°C) and 2.7 million (>+3.0°C) additional days of work are projected to be lost every year by 2061 due to the higher frequency and intensity of heatwaves, particularly affecting agriculture, construction, manufacturing and mining (NSW Treasury, 2021)” (p 31).

379. See, e.g., https://www.forbes.com/sites/stevebanker/2023/08/23/ups-strike-averted-workers-gain-heat-protection/ , https:// time.com/6292244/ups-strike-climate-change/ 380. See, e.g., https://grist.org/labor/340000-ups-drivers-poised-to-strike-over-extreme-heat-safe-working-conditions/ , https:// teamster.org/2023/06/teamsters-authorize-strike-at-ups/ 381. See, e.g., https://www.businessinsider.com/walk-outs-mcdonalds-jack-in-the-box-over-heat-wave-2021-7 382. See, e.g., https://www.business-humanrights.org/en/latest-news/australia-brisbane-construction-workers-walk-off-job-inprotest-at-colleagues-death-due-to-heat-stress-according-union/ 383.

Australian Rail, Tram and Bus Industry Union & Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Sydney Trains [2024] FWC 535.

384. See, e.g., Empire Commercial Group Pty Ltd And The CFMEU(Victorian Construction And General Division) Subcontractors Plastering Enterprise Agreement 2024 – 2027, cl 32.

385. Building and Construction General On-site Award 2020, cl 24.

for time lost due to inclement weather,386 and others

relationship between an employer … and that employer’s

provide the contrary.387 Some expressly require the

employee’s…,” as well as the relationship between the

provision of shade, sunscreen, broad-brim hats, breaks,

employer and employee organisations396. Clauses dealing

cool water, and earlier start times.

with conditions of work (e.g., inclement weather, heat

388

There is otherwise a range of provision for climate change in enterprise agreements, including: » requiring consultation on environmental risks (including specifically climate change) and establishment of committees to consider related matters;389 » requiring assessment and mitigation of workplace safety risks paying specific attention to excessive heat, inclement weather, poor air quality and the effects of climate change;390 » requiring consultation as to the level and availability of productive work during “adverse weather” including “[s]torms, including but not limited to adverse impacts of climate change”;391 » requiring a delegates’ committee and management to review any impacts of climate change on the operation of the relevant enterprise;392

stress, etc.) clearly meet this test, but there is a limit (testable, of course, by litigation) to how adventurous bargaining representatives can be in addressing climate change via enterprise agreements.

Further, industrial action is only (broadly) immune from suit if it is “protected industrial action”397, which in turn means it must be “employee claim action”398.

To be “employee claim action,” the action must (inter alia) be organised or engaged in for the purpose of supporting claims in relation to an agreement that is being bargaining that are “only about, or are reasonably believed to only be about,” permitted matters (i.e., relevantly, matters pertaining to the employment relationship etc., in the way set out above)399. This limits the scope to which employees or trade unions could, if they were minded, take industrial action in relation to political issues, such as climate change.

» providing that the employer “recognises” that climate change is a matter of significant importance to union

107

members and outlining an “expectation” that there will saving practices are being implemented;393 » enabling leave to be taken to manage matters arising from climate change or other natural disasters;394 » addressing air quality given “the recent experience of COVID-19 and the impact of climate change.395 There is, of course, scope for litigation in relation to the interpretation or application of such clauses. There is also scope for litigation in relation to industrial action taken in bargaining relating to such clauses.

Enterprise agreements are limited in scope. Relevantly for present purposes, their clauses must “pertain[] to the

386. See, e.g., Summit Rural (WA) Pty Ltd Enterprise Agreement 2024, cl 8.11.

387. See, e.g., VJK Labour Solutions Enterprise Agreement 2024, cl 31.1.

388. See, e.g., Coolibah Herbs Enterprise Agreement 2025, cl 46.

389. See Australian Nursing and Midwifery Federation (Tasmanian Branch) Staff Enterprise Agreement 2024–2028, cl 5 390. See Northern Grampians Shire Council Enterprise Agreement (10) 2024, cl 13.1.10.

391. See Nillumbik Shire Council Enterprise Agreement 10—2024, cl 6.17.

392. See Defence Solutions East and the Maritime Union of Australia division of the Construction Forestry and Maritime Employees Union Enterprise Agreement 2023, cl 41.6; Birdon Pty Ltd and the Maritime Union of Australia Wire Drawn Ferries Enterprise Agreement 2024, cl 32.3.

393. See UWU and ADIA Market & Social Research Industry Agreement 2023-2026, cl 30.

394. See University of Wollongong (Professional Services Employees) Enterprise Agreement 2023, cl 61.2.1.4; Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2023, 3.34.

395. See North Central Goldfields Regional Library Corporation Enterprise Agreement 2022–2025, cl 15.5.1.

396. FW Act, s 172(1) 397. FW Act, s 415.

398. FW Act, ss 408, 409(1).

399. FW Act, s 409(1)(a).

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be communications to employees about how energy

PART III Acknowledgements This Review could not have been produced without the assistance of the Victorian Bar and in particular the CommBar section of the Victorian Bar. We wish to thank Suganya

December 2025. © The Victorian Bar.

Pathanjalimanoharar, Tom Ellicott and Willem Drent for their

Permissions requests should be directed to the CommBar of

invaluable assistance in finalising the Review.

the Victorian Bar.

The views in this report are those of the authors and do not

Suggested citation: Victorian Bar (2025)

represent those of the Victorian Bar or the CommBar. Any

T. Boston KC, L. De Ferrari SC & V. Holt

errors or omissions remain those of the authors.

"Australian CLimate Change Litigation—Annual Review (2025)"

Methodology 108

A variety of sources were used to identify climate change

any media coverage and/or have not been the subject of any

litigation cases that were settled or remained on foot in

published judgments. However, given that climate change

the 2025 calendar year. The objective being to provide as

litigation is such a topical issue, we expect this risk to be small.

comprehensive and accurate count and details of the 2025 cases. There were, however, limitations in the searches. There

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are varying levels of restrictions on access to case documents filed in the State and Federal Courts. Therefore, there is a risk that the Review could have missed cases that have not received

We have cross checked the cases identified against the Sabin Center’s Global Climate Litigation Database and the University of Melbourne’s Australian and Pacific Climate Change Litigation Database.

Purpose Globally, climate change litigation continues to rise. The

Australian cases that were extant at any time in 2025, by

London School of Economics’ annual Global Snapshot

examining case numbers, parties, causes of action, relief,

describes climate litigation as a “truly global phenomenon…

industries and current and future trends. This examination was

with cases identified in nearly 60 countries around the world

conducted by leading senior practitioners at the Victorian Bar

by the end of 2024”.400

under various legal practice areas.

One purpose of the Review is to provide an insight into the

What Is Climate Change Litigation?

We have adopted the definition of climate change litigation used

Australian citizen is a party. This for example, may include

by the London School of Economics in the annual Snapshot,

complaints to international bodies such as the United

namely “cases brought before judicial and quasi-judicial bodies

Nations Human Rights Committee; and

that involve material issues of climate change science, policy or law”. 401 These cases: (a) i nclude cases in other jurisdictions in which Australia or an

(b) exclude investigations, communications by domestic and international bodies, complaints to regulators, requests for prosecution or enforcement actions.

400. Setzer J and Higham C (2024) Global Trends in Climate Change Litigation: 2025 Snapshot. London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science at page 11.

401. Setzer J and Higham C (2024) Global Trends in Climate Change Litigation: 2024 Snapshot. London: Grantham Research Institute on Climate Change and the Environment, London School of Economics and Political Science at page 7.

Definition of legal practice areas For the purposes of the Review, we have defined the legal practice areas as follows.

Definition of class actions

deaths, fires, accidents and explosions

protection of the environment but also those

Climate change class actions encompass

where climate events contributed to what

where the offence is ‘climate neutral’ but the

group or representative proceedings brought

occurred. These include deaths from

facts of the case raise an issue concerning

by one or more plaintiffs on behalf of a group

heatstroke; drowning arising from severe

the climate. An example of the former

of persons, and are typically brought as

and unusual rain; high pollen counts-

would be a prosecution of a company for

larger-scale strategic litigation. In Australia,

induced asthma, arising from climatic

an environmental offence concerning the

climate change class actions have focused on

events and resulting in deaths; and even

emission of greenhouse gases. An example

claims in negligence against the government,

attacks in waters newly frequented by

of the latter would be the prosecution of an

centred on alleged failures to take certain

sharks as a result of climate change, as

individual for ‘public order’ offences (such

steps to prevent or curtail the detrimental

well as bushfires and wildfires caused or

as trespass) in circumstances where the

effects of climate change. However, climate

exacerbated by extreme climate events.

individual is protesting against government

change class actions are not necessarily

or corporate contributions to climate change.

limited to claims in negligence, and may well

Definition of costs orders

It should be noted that many criminal

expand into other areas of law in future.

The law of legal costs concerns the

prosecutions for environmental offences will not fall within this definition; for example,

quantification of legal costs. “Costs

prosecutions for discrete acts of pollution

The definition of construction law used

Orders” are inter partes orders that

(not involving greenhouse gases) or illegal

for the purposes of the Review was

determine who should bear the costs of

logging.

cases concerning “the law that applies

a substantive proceeding, and to what

to and in respect of the undertaking of

extent. They may be made on a final or

construction and engineering projects”.

interlocutory basis. While the courts’

Definition of energy law (transmission networks)

More specifically, “construction” concerns

power to make an order for costs is

The definition of energy law (transmission

the work undertaken in the construction

discretionary, that discretion must be

networks) used for the purposes of

of houses, buildings and similar

exercised judicially.402 The indemnity

the Review was cases and regulatory

structures including related amenities,

principles or “general rule costs follow

decisions concerning or demonstrating

and “engineering”, and concerns the

the event” lies at the heart of most

the impact of climate change on electricity

work undertaken in the creation of

costs orders. It embodies the important

transmission network planning and/or the

infrastructure such as roads and rail,

principle that a successful party is entitled

operation of those networks. Electricity

bridges and tunnels, power stations,

to an order partially indemnifying them

transmission networks transport high

renewable energy assets, mining projects,

for their actual legal costs incurred in

voltage electricity from large-scale

oil and gas projects, and any other

the proceedings, unless an exception

generators to the distribution networks

infrastructure the product of engineering.

applies.403 For the purposes of the Review,

and large industrial customers. Australia’s

this includes exceptions that may arise

electricity transmissions networks consist

Definition of coronial law

in climate change litigation because of its

of terminal stations, transmission lines and

The definition of coronial law for the

characterisation as such, rather than other

transmission towers.

purposes of the Review was cases heard

factors such as disentitling conduct.

and determined by coroners in the course of holding inquests or inquiries in the

Definition of criminal law

course of coronial investigations. Such

The definition of criminal law used for the

cases typically result in findings and

purposes of the Review was cases related

recommendations in relation to causes

to criminal prosecutions or otherwise

and circumstances of deaths and fires,

considering criminal offence provisions.

as well as, sometimes, comments made

Such cases include those where the

by coroners. The cases reviewed include

substantive offence is one concerning the

Definition of energy law (energy regulator) The definition of energy regulators used for the purposes of the Review are regulatory bodies or agencies at a Commonwealth, state and territory level, which implement and oversee rules relating to energy production, distribution and

402. Oshlack v Richmond River Council (1998) 193 CLR 72, [22] (Gaudron and Gummow JJ), [65] (McHugh J), and [134] (Kirby J).

403. Oshlack, [67] (McHugh J), and [134] (Kirby J). Northern Territory v Sangare (2019) 265 CLR 164, [24]

109

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allocation of liability for and the

Definition of construction law

consumption and related emissions.

sustained by virtue of climate events

The definition of intellectual property

This includes regulators whose tasks

or failures by government to moderate

used for the purposes of the Review

include enforcing regulations, such as

greenhouse gas emissions to enable

covers all of the statutory rights provided

the Australian Energy Regulator, the

viable life. This includes litigation where

under the Patents Act 1990 (Cth), Trade

Essential Services Commission, the

the risks identified were to the right to

Marks Act 1995 (Cth), Copyrights Act 1968

National Offshore Petroleum Safety

life and to human health, including by

(Cth) and Designs Act 2003 (Cth).

Environmental Management Authority,

rising sea levels as a result of climate

and the relevant state and territory

change resulting from a failure to reduce

environment protection authorities,

greenhouse gas emissions consistent

as well as others who propose

with suitably framed reduction targets.

or prepare regulations or have responsibility for energy policy and decision-making, such as relevant ministers and government departments.

Definition of environment (Cth and state Acts) Climate change litigation commenced in Australia involving the principal environmental legislation enacted by the Commonwealth, state or territory governments.

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Definition of land use The definition of land use adopted for the purposes of the Review was climate change litigation cases in which impacts

Definition of human rights

of climate change, and climate change

Any climate change litigation cases (as

mitigation and adaptation impact the

defined) that require consideration of

use of and human connection to land,

human rights the subject of international

waters and resources in the domestic and

treaties to which Australia is a party.

international context.

Definition of international law

Definition of regulatory (ACCC)

The definition of international law used

The definition of regulatory (ACCC)

for the purposes of the Review was the

used for the purposes of the Review was

area of law and the development of

climate change litigation commenced in

principles involving individual-to-State

Australia by the Australian Competition

complaints under hard and soft laws, and

and Consumer Commission or private

Definition of freedom of information law

inter-State agreements and disputes.

litigation alleging contraventions of the

The definition of freedom of information

Definition of insolvency law

litigation commenced by international

law used for the purposes of the Review

The definition of insolvency law

competition and consumer regulators, or

was cases concerning applications made

for the purposes of the Review can be

private litigation alleging misleading or

pursuant to the Freedom of Information

defined as that area of law which deals

deceptive conduct, is only included when

Act 1982 (Cth). The cases reviewed were

with the consequences of a debtor’s

an Australian entity or citizen is a party.

those that had a connection to decisions

inability, or potential inability, to satisfy

or documents relating to climate change,

that person’s financial obligations as and

or environmental decision-making more

when they fall due. The law deals with

broadly. The review includes all federal

the impacts of that situation as between

cases both in court and before the Office

debtor and creditor, and as between

of the Information Commissioner and

the creditors themselves. It can resolve

state and territory cases in courts.

over-indebtedness via the compulsory

Definitions of health law and personal injury law The definition of health law for the purposes of the Review was cases dealing with the impact of climate on the right to the highest attainable standard of physical and mental health and to the right to life.

The definition of personal injury law for the purposes of the Review was cases where it was alleged that injury was

Australian Consumer Law. Climate change 404

used

discharge of debts and distribution of assets, or by the restructuring of debt and equity capital. It can also alter the debtor’s relationships with the broader community: it can change the legal status of the debtor, and it can sanction the debtor and certain counterparties for actions taken during (or in the shadow of ) the period of over-indebtedness.

Definition of intellectual property

Definition of regulatory (ASIC) The definition of regulatory (ASIC) used for the purposes of the Review was the area of law in which climate change litigation was commenced in Australia by the Australian Securities and Investments Commission and by other parties: (a) relating directly or indirectly to climate change; and (b) brought under the provisions of the Australian Securities and Investment Act 2001 (Cth) and the Corporations Act 2001 (Cth). ASIC’s wider enforcement activity, as well as published guidance and strategy was also considered.

Definition of shipping law The definition of shipping law used

404. The term ‘insolvency law’ is synonymous with ‘bankruptcy law’; the specific use of the two terms varies between jurisdictions. In Australia, the umbrella term ‘insolvency’ is typically confined to corporate insolvency, whereas ‘bankruptcy’ refers to personal insolvency. The Insolvency law section of the report confines itself to considering corporate insolvency law.

for the purposes of the Review was

the participant’s behalf, with a view

Definition of taxation law

litigation and arbitration with a

to providing retirement benefits.

The definition of taxation law used

connection to the shipping industry

In Australia this is superannuation.

for the purposes of the Review was

and its infrastructure.

Internationally, such products

any law imposing a tax or duty.

Definition of superannuation law

are known as pension funds or retirement plans.

Definition of workplace law The definition of workplace law

The definition of superannuation law

for the purposes of the Review was

used for the purposes of the Review

the law relating to the relationship

was financial products in which

of employers and employees (and

funds contributed by participants are

employee-like workers such as

actively invested and managed on

contractors and volunteers).

List of cases 1. Doctors for the Environment

13. Police v Jesse Noakes, Matilda Lane-

(Australia) Incorporated v National

Rose and Emil Davey (Magistrates’

Offshore Petroleum Safety and

Court of Western Australia, Chief

Environmental Management

Magistrate Heath, 10 February

Authority (No 2) [2025] FCA 989

2025)

2. ACCC v Australian Gas Networks Limited [Federal Court] 3. ACCC v Edgewell Personal Care Australia Pty Ltd & Anor [Federal Court] Full Federal Court]

27. 2208790 (Refugee) [2025] ARTA 1375 28. Jubilee Australia v Northern Australia Infrastructure Facility [Federal Court]

Court of Tasmania, Magistrate

29. Queensland Conservation Council

Hartnett, approximately 3 March

v Bowen Basin Coal Pty Ltd

2025)

[Queensland Land Court]

15. Stuart v Minister for Transport [2025] NSWSC 39 16. Thorpe v Magistrates’ Court of

30. The Wilderness Society v National Offshore Petroleum Safety and Environmental Management

5. ASIC v Delta Power & Energy

Victoria [2025] VSC 22

Authority [Federal Court]

(Vales Point) Pty Ltd [Federal

17. Atrum Coal Limited v Alberta

31. Environment Tasmania Inc. v

Court] 6. ASIC v Fiducian Investment Management Services Limited [Federal Court] 7. Denman Aberdeen Muswellbrook

[Arbitral Tribunal] 18. Evolve Power Limited v Alberta [Arbitral Tribunal]

Protection of Human Rights in the Context of Climate Change (Made

Inc v MACH Energy Australia Pty

Tribunal]

Ltd [2025] NSWCA 163 Queensland Inc v Chief Executive, Department of Environment, Tourism, Science and Innovation & Ors [2025] QLC 7 9. Rolleston Coal Holdings Pty Ltd v Environmental Advocacy in Central Queensland Inc [2025] QLC 22

Rapporteur on the Promotion and

of Energy Transition Minerals Ltd v Greenland & Denmark [Arbitral

8. Environmental Advocacy in Central

Woolworths Group [AUSNCP] 32. Complaint to the Special

19. Greenland Minerals, a subsidiary

Scone Healthy Environment Group

20.Aura Energy Limited v Sweden [Arbitral Tribunal] 21. Zeph Investments Pte Limited v Australia (III) [Arbitral Tribunal] 22. Balamara Resources Limited v Poland [Arbitral Tribunal] 23. AVZ Minerals Limited v Democratic Republic of Congo [Arbitral Tribunal] 24. Woodside Energy (Dutch subsidiary)

on behalf of 9 young Australians) 33. Australian Conservation Foundation v Commonwealth [challenge to Minister’s decision to extend Woodside’s North West Shelf Project] [Federal Court] 34. Australian Conservation Foundation v Commonwealth [second challenge to Minister’s decision to extend Woodside’s North West Shelf Project] [Federal Court] 35. Friends of Australian Rock Art v

10. First Constable Eliza Berrington v

v Senegal [Arbitral Tribunal]

Commonwealth [third challenge

Bradley Homewood (Magistrates’

25. Sungela Pty Ltd & Bowen

to Minister’s decision to extend

Court of Victoria, Magistrate Halse,

Investment (Australia) Pty Ltd

Woodside’s North West Shelf

16 May 2025)

v Ellen Roberts (Lock the Gate

Project] [Federal Court]

11. Brown v Hariss [2025] TASSC 32

Alliance) [2025] QLC 5

12. Le Roy v Brisbane City Council

26. Australian Conservation

[2025] QCAT 314

Foundation v Whitehaven Coal

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4. Pabai v Commonwealth [appeal to

14. Police v Patrick Mellor (Magistrates’

[Queensland Land Court]