The Federal Government has successfully avoided taking responsibility for protecting young people from climate change. 

The full bench of the Federal Court has overturned an earlier decision in favour of a group of eight children in a class action on behalf of all Australian children, which temporarily established a new common-law duty of care.

The initial judgement agreed that the federal environment minister had a “duty of care” to children when assessing fossil fuel projects, but it was quickly appealed.

Following this week’s overturning of the previous decision, the children can appeal the decision in the High Court. In the meantime, the ruling removes the duty of care that was established by Justice Mordecai Bromberg. 

Chief Justice James Allsop, one of the three judges to hear the appeal, said judges should not determine matters of high public policy (including imposing a duty of care) in his opinion.

He said such a duty would be “incoherent” with existing regulation, and that determining the harm stemming from a specific mine approval was difficult, so the proportionality between that harm and the liability of the minister could not be established.

Justice Jonathan Beach agreed that there is not sufficient closeness between the minister’s actions and any harm arising from the mine.

Justice Michael Wheelahan pointed to the fact the Environment Protection and Biodiversity Conservation Act does not strictly detail a relationship between the minister and those potentially harmed, so the standard of care that would be imposed by such a duty cannot be feasibly established.

“The control of carbon dioxide emissions, and the protection of the public from personal injury caused by the effects of climate change, were not roles that the Commonwealth Parliament conferred on the minister,” he added.

He said he was “not persuaded” that it would be reasonably foreseeable that a mine extension approval would cause personal injury to children, which tort law for negligence requires.

The lawyer who represented the teenagers has vowed to “keep fighting”.

David Barnden - principal lawyer of Equity Generation Lawyers - tweeted “Students to keep fighting after duty decision”.

“The science and predicted impacts of climate change remain the same. Adults should do all they can to create a safe future for our children,” he wrote.

“We will continue to fight for a safe future.”

Lead plaintiff Anjali Sharma says she is “devastated” by the ruling.

“Two years ago, Australia was on fire; today, it’s underwater. Burning coal makes bushfires and floods more catastrophic and more deadly,” she said.

“Something needs to change. Our leaders need to step up and act.“

The group will have to seek special leave to appeal to the High Court.