Turning the tides: Pabai decision reshapes climate change litigation in Australia

The Federal Court of Australia has handed down its highly anticipated judgment in the case of Pabai v Commonwealth of Australia (No 2),¹ ruling that the Commonwealth does not owe a duty of care to the people of the Torres Strait Islands to protect them from the effects of climate change.

While this decision appears to rule out negligence as a cause of action for climate change litigation aimed at driving reform, the Court made notable factual findings about the impacts of climate change and the adequacy of the Commonwealth’s response, leaving the door open for further legal challenges.

Background

The Applicants, Pabai Pabai and Guy Paul Pabai, commenced negligence proceedings against the Commonwealth, both on their own behalf and on behalf of all persons who, at any time from around 1985 onward, are of Torres Strait Islander descent and have suffered loss and damage due to the Commonwealth’s failure to protect Torres Strait Islanders from the impacts of climate change.

These proceedings followed the decision in Minister for the Environment v Sharma (No 2),² which previously established that the Commonwealth does not owe a duty of care to protect Australian children from the impacts of climate change.

However, there were key distinctions between Sharma and Pabai. In Pabai, the group allegedly owed a duty of care was smaller and more clearly defined (being people of Torres Strait Islander descent), and the effects of climate change are being felt by this group now - meaning the alleged harm is not a distant or unforeseeable future risk.

The arguments advanced

The Applicants contended that:

• the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them, their traditional way of life, and the marine environment in and around the Torres Strait Islands from current and future climate change impacts;
• the Commonwealth has breached, and continues to breach, this duty due to insufficient greenhouse gas emissions reduction targets, which were set without regard to the best available science;
• this breach has caused the Applicants to suffer harm from the impacts of climate change; and
• the Applicants have suffered loss and damage, including the loss of fulfilment of Ailan Kastom, the body of customs, traditions, and beliefs unique to Torres Strait Islanders.

The Commonwealth argued that it did not owe a duty of care to the Torres Strait Islanders. Drawing on findings in Sharma, the Commonwealth maintained that the proceedings improperly invited the Court to assess high or core government policy decisions, which are inherently shaped by economic, social, and political considerations, through the lens of negligence. Alternatively, if a duty did exist, it had not been breached as the alleged harm was not reasonably foreseeable, and that the Commonwealth lacked sufficient control over the relevant risk of harm.

The Federal Court’s decision

Ultimately, the Federal Court ruled that the Applicants had failed to establish their primary case against the Commonwealth for the following key reasons:

1. No duty of care owed: The Commonwealth did not owe Torres Strait Islanders a duty of care. It is a well-established principle that decisions involving high-level or core government policy are not subject to common law duties of care. The reasonableness of such decisions is a matter for the political process, not the courts.
2. Standard of care met: Even if a duty of care had existed, the standard of care did not require the Commonwealth to set targets based only on the best available science. It was not unreasonable for the Commonwealth to consider economic, social, and political factors as well as the best available science when setting emissions reduction targets.
3. Insufficient causation: Even if a duty existed and was breached, the evidence did not support a finding that the breach materially contributed to the harm suffered by Torres Strait Islanders, as Australia's emissions make up only a relatively small share of global greenhouse gas emissions.
4. No compensable harm: The common law of negligence in Australia does not currently recognise the loss of fulfilment of Ailan Kastom as a compensable form of harm, and it was not open to a single judge of the Federal Court to recognise a novel category of compensable damage.

While the Applicants were unsuccessful in establishing their negligence claim, the Court accepted many of their factual allegations. It found that when the Commonwealth set Australia’s greenhouse gas emissions reduction targets in 2015, 2020, and 2021, it failed to engage with or give “any real or genuine consideration” to what was required to significantly reduce emissions and moderate global warming, in accordance with the best available science and as enshrined in the Paris Agreement.

The Commonwealth did not dispute the climate science relied on by the Applicants or that climate change poses serious threats to the environment, the Australian community, and the world at large. However, it contended that its targets were reasonable in light of economic, social, political, and practical factors.

Implications

• Following Sharma, this decision solidifies that negligence is an unsuitable legal avenue for challenging government action (or inaction) on climate change, as high or core policy decisions are not subject to common law duties of care.
• The Court is open to accepting scientific evidence as to the existence and effects of climate change, as well as the particular vulnerability of groups like the Torres Strait Islanders.
• While this may be a setback for climate change litigants, the judgment leaves room for the development of the common law by appellate courts and highlights the potential for legislative reform to address climate change impacts more effectively.

The decision underscores the current limitations of negligence law in addressing climate change, while signalling that the Courts remain receptive to scientific evidence and the unique vulnerabilities of affected communities.

¹ [2025] FCA 796.
² [2022] FCAFC 65.