Torres Strait result highlights court is the wrong venue for political theatre

The decision last week in the Federal Court concerning climate change in the Torres Strait was surely the high-water mark for wasting weeks of high-priced court time.

Justice Michael Wigney (top right) last week handed down his decision on the class action taken by Paul Kabai and Pabai Pabai, have instigated a climate change class action against the Commonwealth Government alleging a threat of inundation of the Torres Strait Islands. Pictures: Talei Elu/Supplied

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When are we going to call time on the use of the courts, especially the Federal Court, for performative politicking?

The decision last week of Justice Michael Wigney in the Federal Court concerning climate change in the Torres Strait was surely the high-water mark for wasting weeks of high-priced court time, months of work by tribes of expensive barristers and solicitors, and over 1000 paragraphs of judgment on what was essentially a hopeless case.

No doubt the aggrieved plaintiffs, Pabai Pabai and Guy Kabai, two Torres Strait Islander elders, received some satisfaction from their day in court, and the environmental bar made out like bandits. But this case should never have been brought, or at minimum should never have made it past first base.

Taxpayers are entitled to ask whether the vast amounts of time and money spent on this case would have been better spent on infrastructure or health needs in the Torres Strait.

To nobody’s surprise, the only beneficiaries from this court theatre were Chris Bowen and his fellow climate crusaders in the Albanese government who achieved a purely symbolic but high-profile, court-ordered caning of previous Coalition governments.

Justice Michael Wigney

Adoring reports in the left-wing media described how the judge found that when the Coalition government “identified and 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 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 impacts”, but this all changed when the government changed in 2022.

This was pro-ALP publicity the government would have regarded as well worth the cost of the case.

What the media reports did not give as much airplay to were the judge’s findings that the case, in which the Torres Strait Islanders alleged the commonwealth was negligent in failing to set and implement appropriate climate targets, failed at every step.

The court found that the applicants “failed to prove any of the essential elements of their case”. They failed to prove the commonwealth owed a duty of care to the islanders, failed to prove that even if the commonwealth was subject to a duty of care that the standard of care was as claimed by the plaintiffs and failed to prove a compensable loss. In other words, a resounding defeat.

It should have been obvious to everyone involved that once the Full Court of the Federal Court had decided Sharma – an earlier case in which a claim that the commonwealth owed a duty of care to prevent or mitigate the effects of climate change was thrown out – the Torres Strait Islands case was a loser.

Chris Bowen

Both in Sharma and the Torres Strait Islands case the court held the law of negligence was not appropriate to test the reasonableness of matters of government policy.

The leading commentary on this issue was the following statement (quoted by Justice Wigney) from High Court chief justice Murray Gleeson in the Graham Barclay Oysters case: “At the centre of the law of negligence is the concept of reasonableness.

“When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction.

“Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost.

“Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature.”

One may well wonder why Justice Wigney continued past this finding.

The charitable answer seems to be judicial prudence. On a number of occasions when Justice Wigney reached one of the many points at which his reasoning would have ended the applicants’ case, he would continue to make findings in case his judgment was appealed.

Justice Wigney concluded by saying the applicants’ case failed “not so much because there was no merit in their factual allegations” but “because the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims”. He continued that “until the law in Australia changes, either by the incremental development or expansion of the common law by appellate courts by the enactment of legislation”, the “only recourse that those in the position of the applicants and other Torres Strait Islanders have is recourse via the ballot box”.

Fans of democracy would say thank God for that. The idea that climate change policy should be determined by judges – even those clever judges in appellate courts – would fill most of us with horror. Look at what a mess judges have made of migration law, not just here but all around the world. At least when politicians get it wrong, we can elect new ones to fix things.

But judges are appointed for life, or at least for fixed terms, and their judgments create permanent precedents which, as cases such as NZYQ show, can be virtually immune to the wishes of the electorate.

Paul Kabai and Pabai Pabai.

The real wonder of this case is that Justice Wigney took the bait to make a vast array of momentous factual findings in a case whose legal prospects were so dim. Making his decision appeal-proof seems a slight foundation on which to base such a hard-hitting attack on Coalition policy.

True it is that he is bound by the submissions made to him, and that both the commonwealth’s lawyers (now instructed by an ALP government) and the applicants’ lawyers were urging him to find, as he did, that “climate change poses an existential threat to the whole of humanity”.

However, it was not just the lawyers for both sides who were nodding ferociously at the concessions made by the commonwealth. After listing the comprehensive concessions made by the commonwealth, Justice Wigney added “the commonwealth was correct to make those concessions”.

Leaving little doubt where he stood on climate-related matters, the judge said the “science of climate change is now broadly accepted and doubted by only those on the very fringes of political and scientific debate”.

Now, maybe the judge is right, but is this really the best use of the Federal Court’s time? Even hopeless cases deserve access to justice, but was this case the right vehicle for both sides and the judge to sit around agreeing ferociously with each other’s submissions, only to culminate in the judge offering trenchant criticism of Coalition climate policies while giving the current government a tick?

Cynics may worry this looks like an expensive stitch-up.