AUSTRALIA Trends and Developments Contributed by: Amanda Banton, Elliott Smith, Melissa Morgan and Paul Smith, Banton Group
Environmental and Climate Change Litigation Environmental litigation has gained momentum, with cases targeting both governmental and cor- porate entities for environmental harm. The High Court’s ruling in Chief Executive Officer, Abo- riginal Areas Protection Authority v Director of National Parks [2024] HCA 16 determined that the Director of National Parks could be pros- ecuted for damaging sacred sites, emphasising accountability for environmental protection. On the other hand, the dismissal or withdrawal of several novel claims demonstrates the diffi- culties of pursuing environmental and climate change outcomes through the court system. For example, the Australian Conservation Founda- tion (ACF) sought an injunction against Wood- side Energy’s Scarborough gas project, citing potential climate impacts on the Great Barrier Reef. In August 2024, the ACF discontinued the case, citing the high costs and risks associated with litigation. In another blow to environmental- ists, in May 2024, the Federal Court dismissed a challenge to the federal government’s approval processes for coal and gas projects because the relevant legislation did not mandate the Environ- ment Minister to consider the climate change impacts of emissions when approving such pro- jects. In May 2024, the class action by Torres Strait Islander leaders Uncle Pabai Pabai and Uncle Paul Kabai initiated against the Australian gov- ernment went to trial. The plaintiffs allege that the Australian government failed to protect their communities from the adverse effects of climate change. They contended that the government’s insufficient action on climate change violated a duty of care owed to the Torres Strait Island- ers, threatening their homes, culture, and way of life. The outcome of the case looks set to be a pivotal moment in Australian legal history,
potentially setting a precedent for governmental accountability in addressing climate change and
protecting vulnerable communities. Employment and Labour Disputes
Employment litigation has been influenced by evolving workplace dynamics and regulatory changes. In September 2023, the High Court of Australia upheld the Federal Court’s decision that Qantas Airways’ outsourcing of approximately 1,700 ground handling jobs during the COVID-19 pandemic was unlawful. The Federal Court had previously determined that Qantas’s actions were motivated, at least in part, by a desire to prevent employees from engaging in protected industrial action, thereby breaching the Fair Work Act. The High Court’s ruling confirmed that Qantas’s decision to outsource these roles was not solely based on commercial considera- tions but also included unlawful reasons related to employee rights. In October 2024, the Fed- eral Court ordered Qantas to pay AUD170,000 in compensation to three former employees as test cases, with amounts of AUD30,000, AUD40,000, and AUD100,000 respectively for non-economic loss. This decision sets a precedent for compen- sating the remaining affected workers, with total compensation potentially exceeding AUD200 million. Increased Regulatory Investigations Regulatory bodies have intensified investigations into corporate conduct, leading to increased litigation. Key regulators include the Australian Securities and Investments Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC). ASIC intensified its enforcement activities, focusing on several key areas to uphold financial
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