In early January, EDO Board member Kate Galloway, Associate Professor at Griffith Law School, captured public anguish about the bushfire disaster with a series of tweets considering the legal liability of governments for damage caused by the fires. Here she considers the question in more detail.

Early in the new year, at the height of the bushfire crisis gripping Australia, there was an overwhelming sense that the public had been let down by government. Based on comments by the general public on social media, there seems to have been a perception in the broader community that the government (both state and commonwealth) had been somehow negligent in allowing the environment to get to the state where it would burn so widely and so destructively. The tenor of these sentiments seemed to link the bushfire disaster with the failure to heed the warnings of the former fire chiefs, cuts to land management budgets and of course, failing on climate change mitigation.

While there is a logic in lay terms to thinking the government negligent, there is a lot of legal ground to traverse to do so. Certainly, civil suits such as negligence are starting to take hold around the world as the means by which to hold governments accountable for climate change harms. Not so much in Australia — so far.

A claim in negligence requires the four elements of duty, breach, causation and damage. The first question then becomes: does the state, whether in right of the Commonwealth or the States, owe a duty recognised in civil law terms? Further, what would this duty be, and to whom is it owed?

It might be that the state owes a duty to take action that would protect people, property and the environment from harm — harm that would foreseeably arise if the state fails to take reasonable action. This duty to protect feasibly falls within the remit of the state in a civil society. It is, arguably, the hallmark of good governance.

If the courts would find such a duty, there are additional challenging questions, including how this duty would be fulfilled. Following the Black Saturday Bushfires, victims were awarded $500 million in damages by the power distributer and asset managers. The power distributor had failed to exercise its duty of care because it did not adequately maintain the power lines and, as a consequence, they caused the fires. However, in the current scenario, it is more challenging to identify how government would fulfil its duty. By allocating money? If so, how much? Perhaps by allocating resources — but if so, how and where?

These kinds of actions seem relevant, evidenced by the calls from experienced fire chiefs to take quite targeted responses. Courts are, however, reluctant to tell governments what to do in the day to day planning of affairs. That is not to say that this kind of legal action will fail. However, it will need to be contained and realistic for a court to be willing to lay down just how a government should govern.

There may also be a fruitful inquiry into an overarching duty on government to protect the environment. Beyond negligence, such a duty may arise from implied constitutional obligations (this is a novel argument not yet tested) or it could be found in administrative law. Suffice to say though, that there is no clear liability yet on these grounds.

Regardless of the current state of the law, broad public discourse indicates that people feel that government has a constitutional responsibility to the people and the land; and even that we hold human rights to a healthy environment.

At the moment, however, Australian law does not recognise these rights as a matter of course. [See The right to a healthy environment]. That is not to say that these rights do not exist. But to hold government and other institutions to account for the harm suffered by both people and the environment will require reorientation of the law as it stands. EDO lawyers are a crucial resource in framing viable legal argument to promote the development of the law to hold government to account.

See A state of emergency: EDO is stepping in for more on actions the Environmental Defenders Office is taking to address the climate and biodiversity emergency.