The law and climate: the view of the courts

Transcript: The Law and Climate: The View of the Courts

Bob Carr: Well thank you for joining us. Tonight we're talking about the law and climate about what's happening on climate in front of the courts in Australia. In May this year Justice Bromberg of The Federal Court said that climate change was the greatest intergenerational injustice ever inflicted by one generation of humans on the next and in that judgment he  said the minister had a duty to avoid a degradation in the conditions of life caused by carbon emissions. In Germany this year The Federal Constitutional Court in Karlsruhe declared invalid effectively, the legislation on climate that the Bundestag had enacted and in Holland a similar decision out of the court system invalidated all that the Dutch government had done and said more was required. Tonight to discuss how far this might go. What are the limitations of court action on climate but also how promising it might be.  We have David Barnden the Principal Lawyer of Equity Generation Lawyers, Edwina Kwan a partner of King & Wood Mallesons, and David Morris the CEO of the Environmental Defenders Office in New South Wales and David I'll start with you. I find myself surprised to hear of Australia spoken of as the second busiest jurisdiction in the world when it comes to legal action on climate. I didn't think we'd be anywhere that high up the list. You might shed some light on that for us.

David Morris: Yeah sure and thanks for having me. I think the first thing to note is that we're second by a considerable margin. There's been over a thousand cases that are referred to as climate litigation in North America, in the United States. Australia's had just over 100 pieces of litigation and I would characterise those as primarily first wave climate mitigation. So litigation that's directed towards compliance with environment and planning legislation. These often come in the in the form of a merits review of a particular project. Be that a coal mine or a gas project or in some cases looking at things like flood zones in planning schemes, adaptation to climate change and things local government areas are doing. I think you can attribute it probably, the prevalence of it in Australia, to a number of factors. One is a specialist land and environment court in New South Wales. I think the other is that Australia is, really has been at the forefront of the discussion of climate change at various points in time and I think how elite our lawyers are in some respects. The presence of a strong environmental defender's office over 30 years has seen us bring a lot of cases. The first one was against the Green Bank Power Station and I think that was in 1997. So it precedes our current national environmental legislation, but I don't think the reason is because we have particularly good or strong environmental legislation in this country now. It's a complex area to get into because regulation occurs at a variety of levels and primarily environmental legislation is at a state level, covers a lot of different statutes. But at our federal level we've now got a really outdated piece of legislation, but it does see, I think a considerable amount of climate litigation in the federal court. What we haven't seen Bob, is a lot of second and third wave pieces of climate litigation and David Barnden who's on the call, is responsible I think for pushing the boundaries of those things as well. But really if you think about the second wave being rights-based cases. Both constitutional or human rights based cases. We of rights or rights-based framework in our country. Which is rare, really quite rare in democracies of our kind and quite a lot of the litigation you see in foreign countries is based on either a constitutional or human rights basis. Where we are seeing it is in Queensland which recently enacted human rights legislation and I think what we'll increasingly see is this third wave which is against companies or financial type cases.

Bob Carr: Yeah well David Barnden you had the great honour of winning that case fought over Whitehaven Coal and getting that judgment from Judge Bromberg about the greatest intergenerational. That key phrase from the judge the greatest generational injustice. You represented a group of young people in that case. Just tell us about the essence of that because it struck me. I think it grabbed headlines and struck a lot of people working on the climate agenda that there was something happening in our legal system and it carried the promise of great progress.

David Barnden: Thank you Bob and look it certainly was an honour. It was a big team effort, but above all we were very proud to represent people under the age of 18 who were all involved in full strike for climate actions and they collectively have got out over 300 000 people protesting against the climate policies of the current government. So what we see is a manifestation of what young people are seeking and how they're transferring that into the courts. The case itself was against the Minister for the Environment Susan Lee and we argued that she had a duty of care. E new duty to avoid harming children when deciding whether or not to approve a coal mine extension project. So that was the Vickery extension project by Whitehaven Coal in northern New South Wales and that would be responsible for 100 million tons of carbon emissions over its 20-year lifetime. So a big part of that case was the evidence about climate change. We had a climate scientist who put on evidence around tipping points and that was really important for the judge to get a sense that every mine can take us to disaster potentially and as we go above two degrees and further, the more likely that will happen. So that was a very important piece of evidence and Justice Bromberg did decide in our favour on a number of things including the control that the minister had over whether or not the project could go ahead. So there is now in law in Australia. A duty that the minister owes everyone under the age of 18 in Australia to avoid causing them harm when deciding whether or not to approve coal mines.

Bob Carr: Edwina, I'll bring you in here. You might comment on what that means for corporates if I were on the board of a major corporation or running it as a chief executive. What would I need to know about this Sharma case that might be relevant to what I should be telling shareholders and to how I should be, how I might be, directing the operations of the company.

Edwina Kwan: Thanks Bob and thanks for having me. Look David Barnden and I was obviously involved in this case and it has been hugely significant around Australia for both corporates and government parties alike. I think everybody sort of set up and paid attention when the judgment came down. That was I think, largely because the way in which that duty of care was framed and so in that particular case and David can also obviously speak better to it than I can but it was in the context of the statutory duty that the minister had but the language around the duty of care in relation to sort of similar common law negligence type cases was quite pointed in the way that Justice Bromberg framed that duty. It was very broad reaching and wide-ranging arising in relation to emissions of carbon dioxide into the earth's atmosphere. I think if you're a corporate board member and certainly we have obviously a huge number of corporate clients that are interested in the ramifications of this decision. I think, it's the duty is quite clear in respect of fossil fuel projects, but because of the way in which Justice Bromberg framed that duty to be any emissions of carbon dioxide into the earth's atmosphere. It wasn't necessarily specific to fossil fuel projects so other projects requiring this EPBC approval that may also have some carbon emissions like in manufacturing or mining or other energy projects. I think it's foreseeable that there may be other claims like this raised in the future and run and similar arguments run in the future, and I think also justice Bromberg's language was just so forceful and strong and indicates that Australia's judiciary's sort of willing to be really vocal on matters and that's sort of playing a huge role in shaping the landscape around climate risk for businesses. And it’s happening really quickly and so our clients are certainly voluntarily now, putting measures in place to sort of circumvent this risk that's been quite firmly vocalised by Justice Bromberg.

Bob Carr: What sort of measures. Can you give us a couple of examples?

Edwina Kwan: Well look, I mean it's no secret that there's a lot of divestment from fossil fuels. More interest in other minerals. Whether or not they're less carbon emitting. In terms of lithium etcetera.

Bob Carr: That sounds like a big hp approach.

Edwina Kwan: Well that's obviously a widely publicised one. Lots of, not even in the fossil fuel sector, but other clients are setting quite clear emissions targets and obviously we can talk to disclosure around those targets later. I think also other clients are interested in their supply chain and emissions resulting from that climate change risk around that carbon footprint in terms of where their supply chain is and where it's going.

Bob Carr: David Morris, does it strike you as interesting that there was an argument about the science of climate in this in this court case and that the government didn't contest it? So the science of climate was an assumed position as far as this case ran.

David Morris: Yeah look, I mean I'm not surprised by it Bob because I think it's very difficult now for whoever a respondent or a defendant might be, to try and argue with the position put by whether it's Professor Will Stefan or whether it's Professor Penny Sackett. It's not credible to really be arguing with the fundamentals of the science. They're born out in the latest sixth assessment report by the IPCC. I think the importance is that this is a place where that matters. As to be quite distinct from say, the political narrative in this country where those kind of scientific facts are really become political footballs or get ignored entirely. What we see is I think judges now and you know in the in the Whitehaven case, in the Vickery case, in the bushfire survivors case. Which we had before the Land and Environment Court and judgment is being handed down tomorrow. I might add we had about a day's evidence being put forward by former Chief Scientist of Australia Penny Sackett. You're getting members of our judiciary exposed to these really very very alarming facts about what's happening in our climate system and what is likely to be the consequence of that, and you know in the in respect of young people you get an appreciation for just how serious this is for younger generations who don't have a political voice in this country either. And so the courts become this great place where science, where facts, matter. I think that's why you'll increasingly see people bringing things before the court because it's a forum where evidence rules rather than vested interests or spin political narrative.

Bob Carr: You mentioned the bushfire survivors case. Just tell us about that so we're ready for the news out of the court tomorrow.

David Morris: Yeah, sure. So 9:30 tomorrow morning the Chief Judge of the Land and Environment Court is handing down the decision in that case. The Environmental Defender's Office who I work for, is running that case on behalf of the bushfire survivors for climate action. Without going into kind of the legalese of it, we say that the legislative framework that establishes the New South Wales environment protection authority and sets out what it has to do. We say it mandates it to play a role in the regulation and policy setting in respect of greenhouse gases in New South Wales. They don't have a policy with respect to greenhouse gas emissions, and we say really they can't fulfill their mandate to protect the people and environment of New South Wales if they're ignoring the greatest threat to it. So we're asking the court to make a positive finding that the EPA in New South Wales does have a positive statutory duty which it's breaching to regulate greenhouse gas emissions in New South Wales.

Bob Carr: Edwina could you just address the difference between first wave, second, and third wave actions in the court system on climate?

Edwina Kwan: Sure Bob. I mean I think David might be a better place to speak to those than me. But I think there's a there's a difference between some of the actions that have been brought in other jurisdictions and the actions that had been brought here in Australia. Obviously there was that Shell case which was brought in the Netherlands where The Hague basically came to a decision that Royal Dutch Shell had to reduce its carbon dioxide emissions by 45 percent compared to 2019 levels and Shell had already committed to net zero emissions by 2050. The court in that particular case found those plans to be inadequate and ruled that Shell had to drastically reduce its emissions again. So there's been those types of cases. There's been shareholder activism cases in Australia. There's been cases more recently like the Whitehaven case in relation to this statutory duty of care. We haven't seen cases in relation to you know we don't have a bill of rights here in Australia so we haven't seen those types of cases here. But certainly the way in which the wording around justice from Bromberg's decision in the Whitehaven case in relation to this duty. It may be that there are similar cases brought more in the law. I mean maybe David has some better you know ,more comments on those types of cases.

Bob Carr: Well by the way to the other David. Before we talk to David Morris again. To David Barnden,

you've got the Bromberg case. The Sharma case is on appeal and what sort of what sort of argument is going to be heard in the court system that might threaten the survivability of those brave words by Justice Bromberg?

David Barnden: So the hearing for the kind of appeal part of this action is taking place from the 18th of October. Before the full bench. The notice of appeal is quite broad. It includes a range of appeal points. Notably points on findings of fact as well and so this is how Justice Bromberg has interpreted or translated or just understood the expert evidence. So it is a very fine point to raise especially in circumstances where the minister did not put on any of her own evidence around climate change. It's interesting that the only evidence that the minister did put on was the Paris agreement and so that that was used by the minister in a way to say that look, climate change is a collective action problem. It's not my problem. There was a sense that the minister, and you know we see this quite commonly in government decision making, that nobody really wants to take responsibility. In the trial, Justice Bromberg asked rhetorically you know, who then is going to look after the children. It's an important question.

David Morris: If I could add to that, I think it is a really important point because it builds on, I think the commentary of Chief Justice Preston in Rocky Hill. Where he talked about the concept of multiple local actions. Climate change is a multiple point source problem. A multi-faceted problem, and that you can't fix it with one action. You have to fix it with many actions and that means coming down to the individual project level. The absence of an overarching climate based framework at a national level which might translate our international commitments into domestic law, means we really don't have a nexus between what we've committed to there. Which is to try and maintain global temperature rise to 1.5 degrees and I would make that distinction between what we've committed to as a goal in out nationally determined contribution. Which doesn't meet the goal. It's like saying I want to go to the Olympics, but keen to train twice or three times a week. In that absence, I think you're finding courts saying, well this matters at a local level. This matters. It matters for children. It matters for local communities. They're going to be impacted by climate change.

David Barnden: Yeah, that's right. Maybe just one more comment on the Sharma case. You know this is a development of tort law which is well established over, you know, hundreds of years. And there is an inbuilt way that the common law handles developments in society and new risks. And so, it goes down to harm and the harm that is expected to be visited upon these children later on and it's foreseeable. It's, you know, everyone can anticipate it and it goes to the control that the minister has. So these are really important points that Justice Bromberg brought out in his judgment. So we do see this individual responsibility of people in power who are in a special relationship to children. As Dave Morris says, these are children who can't vote. They can't run for office and so they're certainly at a political disadvantage in that respect.

 

 

Bob Carr: This is to the panel. Any one of you who wants to have us have a stab at it. But these big decisions out of the German Constitutional Court and the Dutch court, really invalidating national contributions and saying you've got to do better. What was your view given Australian experience. What was your view when you read the Dutch decision or the German decision? Edwina, do you want to make a stab at that first?

Edwina Kwan: Yeah, sure. So obviously the German constitutional case related to a group of German youths who challenge the climate protection act in Germany as unconstitutional because they said it didn't really go far enough in terms of setting targets etcetera. The German court agreed and quite quickly. I think in a matter of months, that law was rewritten by parliament. The Dutch court, the Uganda case against the Dutch government citizens had established that their legal duty to prevent dangerous climate change. And in that particular case, the district court of The Hague ruled the government must cut its greenhouse emissions by at least 25 by the end of 2020 compared to 1990 levels. And that ruling required the government to immediately take more effective action on climate change and it was upheld on appeal. I think those two cases obviously happened in civil law jurisdictions within the EU. And it's a slightly different legal landscape here in Australia, but that's not to say that there hasn't been interest, or you know, talk of running similar cases here. But I guess it would be that the Commonwealth's climate mitigation targets are either negligent or fall short of its obligations. Which you can conceivably see somebody running a similar case here. But you know, I think you know there's been talk among circles that are claiming negligence against the commonwealth government for insufficient action on climate change. You know, would have some prospect of success but I mean I haven't looked into it in further detail.

Bob Carr: How do how do decisions by European courts in these two cases get threaded into the Australian legal world? I mean can we assume that a judge of say, the New South Wales Land and Environment Court, would familiarise themselves with those Dutch and German decisions? Those decisions being so broad-based and challenging as they are?

David Morris: I'm happy to have a stab at that Bob. I think you could take it certainly as a given that the judges of the New South Wales Land and Environment Court are very familiar with these things. I know that what many of the judges of that court have written outside of their judicial role papers about climate litigation occurring around the world, it's clearly something that they take a keen interest in. Particularly given so much of Australia's climate litigation has occurred in that court and I think it's influential. I think that the absence of rights-based framework make climate litigation in this country look different, but as Dave Barnden said, our common law whatever aspect of it you might be looking at, is built to respond to contemporary notions of justice. And I think when you look at our legal framework, there's a total absence of contemporary notions of justice in the way that our governments are responding to the climate emergency. Our legislative frameworks, and I would say this across Australia, are not built to deal with this problem. And so you will see courts responding to the evidence that's put before them about what the common law might demand of them to adhere to contemporary notions of justice. It's like the Harvard professors said courts won't be affected by the weather of the day, but they ought to be influenced by the climate of the era.

Bob Carr: Yeah and let's go back a few years to the opinion of Noel Hutley. About the responsibilities of the private sector on climate and the impact that had. Which one of you would want to make a start at just unpicking the Hutley opinion, and the contribution it's made to shifting corporate views of their responsibilities on climate.

Edwina Kwan: I guess I can have a have a go at that given my background. So he's obviously not, Hutley’s obviously written an opinion and since updated it more recently on director's duties relating to climate change risk and disclosure. I think he said something along the lines of there's a profound and accelerating in the way that Australian regulators and the public perceive climate risk and that these matters considerably elevated the standard of care that would be expected of a reasonable director. That's certainly been influential, those comments, and there have now been statements and guidance by regulators who are increasingly acknowledging the foreseeability of climate-related financial risks. And also the need for companies to address those risks through governance and disclosure practices. So, for example, the Reserve Bank, the RBA, has described climate risk is likely to have first order economic effects. ASIC has published a number of recommendations and observations in February of this year about directors and officers having to understand and continually reassess existing and emergency emerging risks applicable to climate change. Including both short and long term risks. APRA has also characterised climate change as a systemic risk that could have a material impact on future financial positions and performance of entities. And look, so I think that although there's no judicial findings as yet, and correct me if I’m wrong, anywhere on the panel in terms of board directors duties in relation to climate change risk. I think that we're certainly seeing companies and board members and directors. They're increasingly aware of this risk in terms of not only causes of action, but any regulatory risk that may be regulated. Reactions that may be coming along the line and they're certainly taking that into account in you know, operations, long-term strategy, disclosure risk etcetera.

Bob Carr: Edwina, if you're asked to join the board of the public company, what would be the questions you'd be asking a company you knew little about? What would be the questions you might be asking them on

climate given all your knowledge of the Hutley opinion of 2016 and the wealth of references you've just made? What would you be asking them about their position on climate?

Edwina Kwan: I mean I think first and foremost you'd be wanting to know that any position they've taken on climate, they can actually back up and they have a plan in place. So I think one of the key issues that we've seen is that you know,  companies are making lots of statements which are known, can be known as green washing by you know committing to these targets yet they have no way that they can actually implement those changes.

Bob Carr: So they might have targets for 2015 but they've got no plan for 2030.

Edwina Kwan: Well, quite. So I think, you know, you just need to be you know really, really conscious of what you are committing to with a realistic lens. I think the standard of care expected by a reasonable director has elevated as a result of this public perception and also you know what's been said in the courts etcetera. And so you know you actually do have to take reasonable steps and you actually have to be taking positive action and being and be able to back that up.

Bob Carr: Yeah and either of the Davids want to add to that? If either of you were being invited onto a board, what would be the most urgent questions you'd put on doing the right thing on climate?

David Barnden: Yeah I think the point about action is a good one and so there's clearly a requirement to get the information in and to be aware of material risks to companies and to have that information to make the appropriate decisions. But I'd be actually interested in Edwina's view on what actions beyond disclosure, where we're seeing, in terms of pivoting away from risky investments. In terms of write-downs of assets like we saw VHP did do last week with respect to the Mount Arthur mine. So yeah, I'm just sort of wondering if I could put that back to Edwina?

Edwina Kwan: Yeah, sure. I mean so we actually did a report surveying ASX 50 companies and their responses to climate change risk disclosure like King & Wood Mallesons says recently sort of put that out. Some of the key takeaways from that in terms of what people are actually, what those companies are doing, and there's obviously voluntary reporting etcetera which is what you've mentioned David. So there's voluntary reporting disclosure in terms of climate change risk. A lot of scenario analysis and you know assessing implications, targets, and commitments. Linking executive remuneration to climate change which is more in the action-oriented sort of bucket in terms of you know, linking directors, you know packages, you know financial packages in terms of what they're doing on climate change. Basically you know holding them to account on that front. We're seeing higher levels of support for climate change resolutions at AGMs etcetera. But you know, we're hoping that there will be kind of more action-oriented steps in you know going forward.  But I think also just you know, having a meaningful plan in place and actually setting sort of you know ways in which to achieve those targets is something that you know is key for all of that. It you're in etcetera. Divestment of you know fuel fossil fuels etcetera. You know there's also increased sort of issues in terms of climate change risk and linking it to other sort of ESG types risks like modern slavery etcetera.  And so there's been you know, we see that sort of come together in terms of compliance and risk assessment sort of across the board there. But that's just some of the stuff we're seeing.

Bob Carr: Yes what significance did the commonwealth bank case of 2000 and 2017 have. David you were involved in that case, David Barnden. You're involved in that case. It seems to have been to my non-legal mind, seems to have been a seminal case in the matters we're talking about. Could you just explain to us why it was so significant?

David Barnden: Yeah and look there is a relationship in the recognition of climate change as a material financial risk. Or a type of risk that does trigger these directors duties and requirements to understand the risk. And so that that case was brought by two long-term shareholders in cba who said that in order for them to understand the prospects of the company going forward, they said that the company needed to disclose climate as a material financial risk and what it was going to do about it. There was a sub claim in that which said in order for investors to fully understand the prospects of the company, they needed to understand its position with respect to financing or not,  the Adani Carmichael mine. And about a week after that case was filed, there was a statement by cba which said in fact it wouldn't be financing that mine. And so from the bank's perspective, it did make those disclosures shortly after that case was filed and it appeared to start a cultural change in the bank. Whereby once it was recognised at board level, they need to go about understanding what that risk is and what it means to its investments. There was a whole bunch of work done on how climate change would impact its mortgage portfolio and we see CBA make reference to Paris alignment in some of its climate change policies as well. So that was the first time that that we saw climate change appear in an annual report for a financial institution and it's really become standard practice now to do that. The regulators have made commentary on it and it was a seminal case which these shareholders brought and you know congratulations to them.

Bob Carr: Yeah. David Morris have you got a comment on the significance of the CBA case and how that shifted expectations of the corporate sector?

David Morris: Only probably to echo what Edwina and David have said in terms of the spotlight It's shown on the way in which large public companies or public companies generally were disclosing these material financial risks to potential investors in their company. I think you know their Hutley opinion builds on that as well in terms of what they think reasonable directors of these types of companies ought do in explaining these risks. The former chairman of the British Bank whose name I’m going to forget. Mark Carney is that right? Someone nod at me. You know their task force on climate disclosures or albeit a voluntary framework now sets out a comprehensive way in which companies ought be disclosing to the market their climate change risk exposure.  I think you're now seeing a lot of voluntary uptake of that but I think you still see within public companies in Australia, a lot of companies falling short of that TCDF framework reporting. Albeit perhaps not so much in some of our much larger ASX600 listed companies.

Bob Carr: Well that would seem to make all the more important, forthcoming legal actions and there's one coming up on the Narrabri gas fuels in New South Wales. Which of you would want to address that?

David Morris: Uh look, it's before the court I’m very happy to speak to it Bob.  Yeah we're running that on behalf of the Mallalay Gas and Pipeline Accord. That's a group of regional land owners who lived in and around the town of Narrabri. They're obviously very concerned about this prospect of a major gas and industrial development in that part of New South Wales and they're concerned about the impact on climate that this gas project would have.

Bob Carr: Yeah and Edwina, just surveying the legal landscape. What do you see coming up? What might be the next case that is going to tilt or balance through the legal system when it comes to the assessment of climate?

Edwina Kwan: I think just from my background, you know the CBA case was quite interesting in terms of, it was you know arguably the first in the world where a claimant had pursued a blank bank over failing to report climate change risks. As David Morris said, it was in line with Hutley’s opinion that you know banks who lend to major fossil fuel businesses are exposed if they don't adequately disclose climate change risks. And I think you know in terms of disclosure from company directors and boards, we haven't had any judicial opinions around that yet and it may be that we see a case where you know a board or an individual director is called to account. In terms of what you know exposure it has in terms of disclosing climate change risk in the future. There hasn't sort of been any judicial precedent that I’m aware of on that matter yet so that would be something that I would see as interesting if that was to develop

Bob Carr: And David Barnden, just surveying the landscape and living aside the important appeal to be heard in October. What do you see on the landscape to push the boundaries of the law and climate you know in the Australian jurisdiction?

David Barnden: Look I thought Noel Hutley's updated advice from April 2021 on director's duties was very interesting in that he referred to, as Edwina touched on earlier, net zero commitments and the steps that a company would undertake to implement those net zero commitments. And whether or not companies and directors were doing their job to make sure that shareholders and other investors were protected and the company was well managed. So that seems quite interesting to me.

Bob Carr: And David Morris, final word from you surveying the landscape.

David Morris: Yeah I mean obviously I think we're all fascinated to see the outcome of the appeal that Dave Barnden’s outfit is running before the full bench. I think one of the fascinating things about that concept of a duty and the fact that it was based within the statutory framework of the commonwealth law. The EPBAC act. But if you look across the Australian landscape, there's lots of other pieces of legislation with similar statutory frameworks. Concepts of ecologically sustainable development, that may see you know lots of other projects be sort of considered in light of that case and in light of those types of duties. So I think that's fascinating. I think we've now got three jurisdictions in Australia with human rights legislation and there's a case currently in the Queensland Land Court which questions whether the Galilee coal project is one of Clive Palmer's project, infringes on recognised human rights in Queensland. Whether the approval of that mine would infringe on those human rights. I think that's going to be an area of increasing scrutiny by the courts. You'll continue to see lots of project-based litigation and perhaps if I can return to Narrabri, in that case one of our grounds is that it was legally unreasonable for the independent planning commission in New South Wales to impose a scope 3 condition on that project. I'll go higher level than that and say the concept of legal unreasonable is usually for a lawyer, not a place you want to be. It's kind of a position of last resort but I think increasingly we're getting to the point where you might well ask, is the approval of this new fossil fuel project in the face of climate science still a reasonable position that is open to a government. Open to a decision maker. We're going to get there at some point and I would suggest that the evidence says that approval of new projects isn't reasonable. But we'll see a case I think that starts interrogating the reasonableness of these decisions at some point.

Bob Carr: In view of things like the International Energy Agency and its conclusions or whatever comes out of the Glasgow conference.

David Morris: And in view of the consequences of 1.5 degrees of warming and beyond. I mean that the fact that we will lose large portions of our greatest natural treasure and there's lots of things in Australia that could compete for that honour but I think the Great Barrier Reef is widely regarded as one of the greatest natural assets in the world. At two degrees there's not very much of that natural asset left. What kind of government is not acting in such a way as to preserve that property or that natural asset on behalf of all Australians, the world, future generations.

Bob Carr: And as the three of you have confirmed tonight, courts are listening to, courts are hosting arguments, about the science of climate. And in this decision, the Sharma decision, saying intergenerational unfairness counts in things that the legal system says the greatest intergenerational injustice is that of what's happening to climate. Well the three of you, thank you very much for joining this discussion tonight. I know that there's very deep interest in it. As part of this series we've got the chief judge of the New South Wales Land and Environment Court addressing us next month. We're going to have further events that explore this because a surprising amount is happening in the Australian jurisdiction. So to Edwina Kwan, David Morris and David Barnden, thank you for giving us your time.

Edwina Kwan: Thank you.

David Morris: Thanks Bob.

Bob Carr: Thanks again.

Edwina Kwan: Bye.