The Federal Court has delivered its decision in Pabai v Commonwealth of Australia(No 2) [2025] FCA 796 (Pabai). It ruled that the Commonwealth of Australia does not owe a novel duty of care to take reasonable steps to protect all Torres Strait Islanders from the current and projected impacts of climate change on the Torres Strait Islands.
The Applicants, Mr Pabai Pabai and Mr Guy Paul Kabai, brought a class action on behalf of all Torres Strait Islanders on the basis that the Commonwealth had breached its duty of care to protect them from the impacts of climate change.
Justice Wigney's decision, delivered on 15 July 2025, follows similar reasoning to the Full Federal Court's earlier decision in Minister for the Environment v Sharma [2022] FCAFC 35. It confirms that Australian courts do not consider that the tort of negligence is an appropriate vehicle for challenging government decisions which involve matters of high or core government policy, including those concerning climate change.
The Applicants' case
The Applicants argued that the Commonwealth Government had a duty of care to take reasonable steps to protect Torres Strait Islanders and their traditional way of life from the impacts of climate change. This duty was framed in two ways:
- a duty to set appropriate greenhouse gas emissions reduction
targets, having regard to the best available science (the primary
duty); and
- a duty to implement 'adaption measures' to prevent or minimise the impacts of climate change. This would include providing funding for the construction of seawalls that would protect Torres Strait Islanders from sea level rise and erosion (the alternative duty).
The key issue to be determined by the Federal Court was whether either of these novel duties of care existed under the common law of negligence in Australia.
The Applicants further argued that the Commonwealth had breached these duties, that the breaches caused harm to the Applicants, and that they had suffered loss and damage. The primary form of harm alleged to have been suffered by the Applicants was the loss of fulfilment of Ailan Kastom, being the unique customs, traditions, and beliefs distinctive to Torres Strait Islanders. An important issue to be determined was therefore whether loss of fulfilment of Ailan Kastom was a compensable harm under the common law of negligence.
In addition to the loss of fulfilment of Ailan Kastom, the Applicants also pleaded harm in the form of personal injury and property damage. However, minimal evidence was adduced, and so the Court dismissed these arguments fairly succinctly.
The Federal Court's decision
The Federal Court held that the Commonwealth Government did not owe a duty of care to the Applicants. This was primarily because decisions concerning emissions reduction targets and adaption measures are matters of 'high or core government policy', which are not properly the subject of a common law duty of care.
As was the case in Sharma, the Federal Court held that it would be both inappropriate and impractical for the Court to assess the reasonableness of the Commonwealth's actions in setting and communicating the relevant emissions reduction targets or funding adaption measures. While the Court could – and did – make relevant findings about whether particular emissions targets were compatible with the 'best available science', the Court could not judge whether it was unreasonable for the Commonwealth to set emissions reduction targets by reference to other considerations, such as broader economic, social, and political factors. The Court found that the answer to that question involves value judgments, policy choices, and political judgments, which are matters to be determined by the government, not the courts.
The Federal Court also considered whether the nature of the relationship between Torres Strait Islanders and the Commonwealth attracted a novel duty of care. Importantly, the Applicants sought to distinguish their case from the Full Federal Court's decision in Sharma. The Court in that case had held that the Minister for the Environment does not owe a duty of care to all Australian children to protect them from the physical harms of climate change arising from granting environmental approvals for fossil fuel projects. The Applicants argued that, unlike the broad class in Sharma, Torres Strait Islanders are a small, discrete and unique group of Indigenous Australians who are particularly vulnerable to the effects of climate change. While Justice Wigney accepted this distinction, his Honour held that the Commonwealth did not have a special protective relationship with Torres Strait Islanders that might give rise to a novel duty of care.
While not strictly necessary to do so, Justice Wigney also found that:
- even if the Commonwealth owed, and breached, a duty of care,
the Court could not conclude that any such breach materially
contributed to the harm suffered by Torres Strait Islanders. In
particular, Australia's emissions constitute a relatively small
proportion of global emissions. Any additional emissions that were
a result of the allegedly inadequate, low targets set by Australia
would have caused only an 'extremely small' increase in
global average temperature; and
- the common law of negligence does not currently recognise the loss of fulfilment of Ailan Kastom as a type of compensable harm under the common law of negligence.
However, Justice Wigney agreed with the Applicants on many of the factual contentions underpinning their claims. His Honour found that the emissions reduction targets set by the Commonwealth in 2015, 2020 and 2021 were inconsistent with what the best available science indicated was required for Australia to meet its obligations under the Paris Agreement. Specifically, his Honour held that the 'best available science' clearly required Australia to take steps to reduce its emissions to maintain the global average temperature increase:
- well below 2 degrees Celsius above pre-industrial levels;
and
- as much as possible, to 1.5 degrees Celsius above pre-industrial levels.
Justice Wigney also found that climate change has had, and will continue to have, an 'undeniable impact' on the traditional way of life of Torres Strait Islanders and their ability to practise Ailan Kastom.
Key takeaways
The four key points arising from the decision are:
- Government decisions regarding high or core policy are
not subject to common law duties of care. Following from
Sharma, the Federal Court has confirmed that the common
law of negligence is not an appropriate vehicle to challenge
government decisions relating to core policy, including in relation
to climate change. Justice Wigney emphasised that the
Applicants' case against the Commonwealth failed, not because
there was no factual basis for their claim, but because the law of
negligence in Australia does not provide 'a real or effective
avenue' for obtaining relief in relation to government action
or inaction. This would remain the case unless and until the law
changes by either the incremental development of the common law
through appellate courts or legislation being enacted.
- Proving causation in climate change litigation remains
a difficult hurdle to overcome. The effects of climate
change are cumulative, global, and are not easily attributable to a
single source or jurisdiction. The Applicants conceded that they
were not able to establish causation based on the conventional
'but for' test. Instead, they argued that there were
multiple factors that cumulatively caused the harm suffered by
Torres Strait Islanders, and the additional emissions arising from
the Commonwealth's breach of duty materially contributed to
that harm. Ultimately, Justice Wigney – relying on the
consensus view reached by the experts from all parties –
found that any temperature decrease that may have resulted from
Australia adopting more progressive emissions targets would have
been so small that they could not be measured or observed.
- The decision signals a broader constraint on claims
against the Commonwealth for climate-related cultural
impacts. Justice Wigney expressed considerable sympathy
for the Applicants' contention that loss of fulfilment of
Ailan Kastom should be recognised as a form of compensable
harm. However, he did not consider it open to him to recognise -
apparently for the first time - that participation in, or the
enjoyment or observance of, customs, traditions, and beliefs, can
constitute or comprise rights or interests capable of protection by
law.
- The Federal Court is willing to accept scientific evidence regarding the existence and impact of climate change. This replicates at a federal level the approach that some State courts have already taken, including the Queensland Land Court in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 and Re Sungela Pty Ltd & Anor [2025] QLC 5.
Implications for Australian businesses
1. No immediate expansion of tort-based climate liability
While the Court rejected a novel duty owed by the Commonwealth in this case, the liability of private entities is a dynamic area of law internationally. While some international courts have been prepared to find that private entities have a duty of care to mitigate the impacts of climate change, they have not gone so far as to say that this duty warrants imposing specific emissions reduction targets.
2. Shifting public focus on statutory compliance and ESG risk
The Pabai decision further demonstrates that Australian courts are alive to climate change risks and the availability of science-based data in assessing potential impacts on communities. This recognition further underpins the growing public interest in broader statutory compliance and ESG risks as ever-developing areas of law.
As these climate cases continue to emerge, businesses may anticipate closer regulatory scrutiny of their compliance with evolving climate disclosure and risk frameworks. There is also likely to be closer scrutiny by the public, stakeholders and investors.
3. Heightened focus on First Nations engagement
Though the Applicants were unsuccessful in establishing a claim in negligence, Justice Wigney made a series of factual findings recognising the 'devastating impacts of climate change' on the Torres Strait Islands and Torres Strait Islanders' way of life.
These findings are relevant in the broader context where the Australian Human Rights Commission, supported by the Parliamentary Joint Committee on Human Rights, has proposed strengthening human rights protection in legislation through a federal Human Rights Act, which, if introduced, would then underpin the Commonwealth Government's statutory and policy decisions.
A reluctance to enforce broad climate duties under common law
Australian courts have again demonstrated reluctance to enforce broad climate duties under common law. The Pabai judgment marks a clear reaffirmation that climate-related novel duty claims, even confined to a narrow scope of litigants and with strong moral and cultural force, are not currently recognised by Australian common law. Courts remain wary of importing novel duties of care into the realm of climate policy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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