The Wilderness Society v NOPSEMA and Santos

About

Federal Court of Australia | NSD1342/2025

On 1 August 2025, The Wilderness Society filed a judicial review application in the Federal Court of Australia, challenging a decision of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to accept an Environment Plan submitted by Santos WA Northwest Pty Ltd (Santos).  

The Wilderness Society is an independent, community-based, not-for-profit environmental advocacy organisation with a long-standing interest in the conservation of Australia’s coastlines and oceans. 

Background to the claim

Under Australian law, a company must submit an Environment Plan before undertaking offshore petroleum activities, like oil and gas production and decommissioning.  NOPSEMA must assess and approve an Environment Plan before the company carries out the activities in the plan.  

The Environment Plan relevant to this case relates to Santos’ Reindeer gas field situated off the north west coast of Western Australia.

On 24 April 2025, Santos submitted to NOPSEMA a revised Environment Plan for the Reindeer field.  The Reindeer field is approaching the end of its economically viable production life and Santos expects it to cease production in mid-2025.  Accordingly, the Environment Plan outlines how Santos intends to manage the Reindeer field site during the post-production phase, including the preservation of infrastructure until a decision is made about decommissioning or re-purposing. 

Decommissioning involves the removal of infrastructure from the offshore area that was previously used to support oil and gas operations.  The Australian government estimates that oil and gas companies will spend $60B on decommissioning offshore infrastructure in the next 30-50 years.

On 8 May 2025, NOPSEMA accepted Santos’ Environment Plan.  In NOPSEMA’s Statement of Reasons for accepting the Environment Plan, NOPSEMA indicated that it was reasonably satisfied that Santos was compliant with section 571(2) of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth).  That section requires titleholders to maintain adequate financial assurance to meet certain costs, expenses and liabilities. 

What the claim alleges

The Wilderness Society argues that:

  1. NOPSEMA’s assessment of whether Santos was compliant with section 571(2) did not include an assessment of whether Santos had maintained adequate financial assurance to cover decommissioning costs;
  2. NOPSEMA took this approach because it misconstrued section 571(2) by not considering the costs, expenses and liabilities relating to decommissioning activities;
  3. As a result, the decision to accept the Environment Plan was legally flawed.

The scope of section 571(2) has never been considered by a Court.  The Wilderness Society will argue that s 571(2) requires Santos to maintain financial assurance to cover the costs of decommissioning its offshore infrastructure.  

This case will set a precedent, clarifying whether oil and gas companies must demonstrate that they have the means to pay for the decommissioning of offshore infrastructure.  

Remedy sought

The Wilderness Society is asking the Court to quash NOPSEMA’s decision to accept the Environment Plan. 

The Wilderness Society is also asking the Court to stop NOPSEMA and Santos from acting on this decision to accept the Environmental Plan.

First case management hearing

On 23 September 2025, the first case management hearing was held. 

The Wilderness Society successfully sought the production of most documents before NOPSEMA when it approved the Environment Plan. The Court did not accept Santos’ request for the Wilderness Society to file a statement of claim. 

The Court made orders listing the matter for final hearing on 7 and 8 April 2026 and otherwise timetabling the filing of submissions and other steps to prepare for the hearing. The orders can be viewed here.

The Wilderness Society is represented by Equity Generation Lawyers.

Diana Beere v National Australia Bank

About

Federal Court of Australia | NSD715/2024

In response to media enquiries about this matter we provide the following background.

About the claim

Diana Beere, long-term shareholder in the National Australia Bank Limited (NAB), filed an application in the Federal Court of Australia on 5 June 2024, seeking access to internal company documents under section 247A of the Corporations Act 2001 (Cth) (Corporations Act).

Ms Beere sought access to documents held by NAB in relation to the bank’s reported corporate loan financing to the following companies that have or are proposing new thermal coal projects:

  • New Hope Ltd,
  • Whitehaven Coal Ltd.

Documents were sought in the context of NAB’s commitment to no longer finance new thermal coal projects. The commitment was first announced in late 2017.

In addition, Ms Beere’s concerns extend to NAB’s potential contribution to adverse human rights impacts arising from its reported financing of:

  • the Coastal GasLink gas pipeline project in Canada by way of a project finance loan,
  • Santos Limited and its Barossa gas project near the Tiwi Islands, by way of a corporate loan facility that was rolled over from an acquisition loan for the Barossa project.

Internal NAB documents were sought arising from concerns that the bank did not adequately carry out human rights due diligence on the projects in accordance with its human rights policy. 

The request to inspect the books

An application made under section 247A of the Corporations Act allows members (shareholders) of a company to apply to the Court to make an order authorising the shareholder to inspect the books of the company.

Ms Beere and NAB corresponded about her concerns from April 2022. Prior to filing Ms Beere obtained a number of documents from NAB under a confidentiality deed. Ms Beere understood at the time of filing that NAB required a court order, or its clients’ consent, to provide her a number of remaining documents.

Ms Beere sought relevant board and committee packs, loan and project assessments, and loan documents. In the case of the Coastal GasLink pipeline, amongst other things, Ms Beere sought access to independent third party assessments on the project’s compliance with human rights requirements under the Equator Principles.

Progress

A hearing of the application was scheduled for 25 November 2024 but days earlier the remaining documents sought were provided to Ms Beere by NAB. As a result, the hearing was vacated.

The parties provided written submissions to the Court on costs. On 20 December 2024 the Court ordered NAB to pay Ms Beere’s legal costs and the proceeding was dismissed. 

The legal team

Diana Beere was represented by Equity Generation Lawyers.

Alice Zheng was the plaintiff’s counsel.

Parents for Climate v EnergyAustralia (Offsets Greenwashing)

About

Federal Court of Australia l NSD833/2023

Thursday morning, 15 May 2025: After nearly two years of litigation, the parties have settled a case where our client, Parents for Climate, alleged that EnergyAustralia’s marketing of its ‘Go Neutral’ carbon offsetting product was misleading or deceptive. Settlement was reached as the final hearing was about to commence.

The settlement statement can be accessed here or by clicking on the “Settlement Statement” tab above.

EnergyAustralia agreed to send an email addressing the settlement to current and former customers of the Go Neutral product. The email can be accessed by clicking on the “Email to Customers” tab above.

EnergyAustralia – Australia’s third largest domestic emitter and the largest participant in the government’s Climate Active carbon neutral certification scheme – has now acknowledged Parents for Climate’s key factual argument: that “offsets do not prevent or undo the harms caused by burning fossil fuels”.

EnergyAustralia has admitted that, even with carbon offsetting, burning fossil fuels still contributes to climate change. It has apologised to its customers “who felt that the way it marketed its Go Neutral products was unclear”.

EnergyAustralia no longer offers the Go Neutral products to new customers and has removed all marketing in relation to this product from its website. It has acknowledged that “Carbon offsets should not be used to delay or diminish the important work that needs to be done to actively decarbonise.”

Nic Seton, CEO of Parents for Climate said “We welcome the acknowledgement and agreement from EnergyAustralia. Not only does it send a powerful message that the era of unchecked greenwashing is over, but it’s incredibly reassuring to see the commitment from one of the largest energy retailers in the country to want to do better for their customers and the climate.,

“At Parents for Climate, we consider the approach and conduct that was taken by the company to be greenwashing. Climate claims must be backed by real action – not marketing spin. Today, EnergyAustralia’s statement makes clear that offsets should not be used as a license to pollute. It is no longer tenable to market polluting products as “carbon neutral” and lead customers to believe that by signing up they are doing good for the planet. ”

David Hertzberg, Principal Lawyer at Equity Generation Lawyers, said: “This was the first case in Australia targeting the marketing of consumer products as ‘carbon neutral’. And today’s outcome is a watershed moment in greenwashing litigation in Australia.”

“EnergyAustralia’s statement makes clear that “carbon neutral” products based on “offsetting” still contribute to climate change.”

“Companies need to seriously consider whether the environmental claims they make stack up – particularly, as this case shows, when claiming that their polluting products are “carbon neutral”.”

“It took a lot of courage for Parents for Climate to stand up and take legal action against EnergyAustralia. And that courage has paid off.”

A link to our client’s, Parents for Climate’s, press release can be accessed here.

About the case

On 9 August 2023, Equity Generation Lawyers represented Parents for Climate in filing a landmark action challenging allegedly misleading statements made by EnergyAustralia about its “carbon neutral” energy products.

Parents for Climate is a climate advocacy organisation that works for parents, carers and families who want to create a safer future for their children.

The action was filed in the Federal Court of Australia. The pleadings are available for download at the end of this page.

Background

EnergyAustralia produces and sells electricity and is Australia’s third largest domestic greenhouse gas emitter, producing 16.2 million tonnes of CO2 equivalent in 2021/22 and 17.4 million tonnes of CO2 equivalent in 2022/23.

EnergyAustralia offered “Go Neutral Electricity” and “Go Neutral Gas” products.  “Go Neutral” customers purchase energy which is mainly sourced from burning fossil fuels and EnergyAustralia promises to purchase carbon credits to “offset” the associated emissions.

The “Go Neutral” products require consumers to opt-in but there is no additional cost to the consumer.

EnergyAustralia on its website claimed that:

  1. “Go Neutral” electricity and gas is “carbon neutral”;
  2. Emissions created by “Go Neutral” electricity and gas are “cancelled out” or “negated”;
  3. By opting into “Go Neutral” products, consumers “have a positive impact on the environment”.

EnergyAustralia has now ceased to offer the “Go Neutral” product to new customers, and has removed the “Go Neutral” page from its website.

What the claim alleged

Parents for Climate argued that EnergyAustralia’s marketing of its “Go Neutral” products amounted to misleading or deceptive conduct contrary to section 18 of the Australian Consumer Law.

Parents for Climate argued that carbon offsets do not “cancel out” or “neutralise” the emissions generated by “Go Neutral” energy, and that using “Go Neutral” energy does not have a positive impact on the environment. This is because, in summary:

  1. Paying someone else to avoid generating emissions (known as an “avoidance” credit)  does not undo the impact of the emissions generated from “Go Neutral” energy. This is because avoidance credits do not involve removing any CO2 from the atmosphere, and there is inherent uncertainty in whether avoidance credits have achieved what they claim to achieve. Almost 99% of EnergyAustralia’s carbon credits are avoidance credits;
  2. To provide any benefit to the climate or the environment, the carbon credit must add climate benefits that would not otherwise have occurred without the carbon credit project (known as “additionality”). Otherwise, purporting to “offset” GHG emissions by purchasing carbon credits which lack additionality ultimately results in further increases in the atmospheric concentration of GHGs. Parents for Climate argued that the avoidance credits purchased by EnergyAustralia lacked additionality;
  3. Paying someone else to flare methane (which is a type of “avoidance” credits) not only suffers from the same problems that all avoidance credits have, it results in a significant additional increase in the concentration of greenhouse gases because there is a lack of equivalence between short-lived methane and effectively permanent CO2 emissions;
  4. Paying someone else to remove carbon emissions from the atmosphere (known as a “removal” credit) does not cancel out or negate the emissions generated from “Go Neutral” energy because the carbon removal projects EnergyAustralia buys are short-lived and not permanent; 
  5. The emissions from “Go Neutral” ultimately result in an increase in the concentration of greenhouse gases in the atmosphere, which exacerbates climate change and global warming.

Parents for Climate filed climate science evidence from Professor David Karoly and carbon markets evidence from Dr Danny Cullenward.

EnergyAustralia’s Defence

In its Defence, EnergyAustralia denied that it made the alleged representations on its website and denied that the representations were misleading or deceptive (if they were made).

It also said that the statements in its website would have been understood as expressions of EnergyAustralia’s opinion rather than as statements of fact.  

Parents for Climate, in its Reply, maintained that the statements on EnergyAustralia’s website would have been understood as statements of objective fact. Parents for Climate further argued that, even if the statements would have been understood as expressions of opinion: 

  1. EnergyAustralia’s opinion was not based on reasonable grounds;
  2. EnergyAustralia misstated the facts on which the opinion was based; and
  3. The statements were made in circumstances where, to EnergyAustralia’s knowledge, customers had a poor understanding of the term “carbon neutral” and the expression of any opinion on this topic had a tendency to lead those customers into error.

Remedy sought

Parents for Climate sought a declaration that EnergyAustralia has misled its customers since 2019 about the greenhouse gas emissions associated with their electricity and gas usage. 

Parents for Climate also sought an order that EnergyAustralia be restrained from making “carbon neutral” or similar statements to describe the “Go Neutral” product, and that it issue a corrective statement to its customers. 

Pleadings

You may download copies of the pleadings below:

Further Amended Statement of Claim

Amended Defence

Amended Reply

Parents for Climate’s Legal Team

Parents for Climate was represented by Equity Generation Lawyers.

Parents for Climate‘s counsel were Robert Dick SC and Jerome Entwisle. 

Settlement Statement

Go Neutral Litigation – EnergyAustralia acknowledges issues with “offsetting” and moves away from carbon offsets for its residential customer products

19 May 2025

In July 2023, the advocacy organisation Parents for Climate launched legal action against EnergyAustralia in the Federal Court of Australia alleging that EnergyAustralia’s marketing of its Go Neutral carbon offset product amounted to misleading or deceptive conduct contrary to the Australian Consumer Law.   

Today, EnergyAustralia acknowledges that carbon offsetting is not the most effective way to assist customers to reduce their emissions and apologises to any customer who felt that the way it marketed its Go Neutral products was unclear.  EnergyAustralia has now shifted its focus to direct emissions reductions. 

Greenhouse gases are harmful to the environment and contribute to climate change. While offsets can help people to invest in worthwhile projects that may reduce greenhouse gas emissions elsewhere, offsets do not prevent or undo the harms caused by burning fossil fuels for a customer’s energy use. Even with carbon offsetting, the emissions released from burning fossil fuels for a customer’s energy use still contribute to climate change. 

EnergyAustralia and Parents for Climate have agreed to settle the legal action and to the publication of this statement. 

Withdrawal of EnergyAustralia’s Go Neutral product 

EnergyAustralia launched its Go Neutral product in 2016 with the objective of providing customers with a way to offset emissions generated by their electricity or gas consumption. However, where a residential customer opted in to the Go Neutral product, their electricity or gas use was still sourced predominantly from fossil fuels. Burning fossil fuels creates greenhouse gas emissions that are not prevented or undone by carbon offsets. This could have been made clearer to customers. 

EnergyAustralia acknowledges the importance of consumers understanding the climate impact of products and services offered to them and that offsets are not the most effective means of reducing greenhouse gas emissions. There are legitimate concerns about organisations:

  • using offsets instead of reducing their own emissions;
  • using offset projects that do not permanently remove carbon from the atmosphere;
  • supporting offset projects where climate benefits are uncertain or would happen anyway; and
  • using carbon neutrality marketing claims based on the use of carbon offsets, which may cause some consumers to think there is no environmental impact from a product or service offered by a business.

Some carbon offsets claim to remove carbon dioxide from the atmosphere by planting trees or forest regeneration.  However, EnergyAustralia today accepts the scientific consensus that these “offsets” do not indefinitely  remove greenhouse gas emissions from burning fossil fuels, because carbon is stored in plants for a substantially shorter time than those emissions remain in the atmosphere.  Storing carbon in plants is not equivalent to keeping it stored in fossil fuels (by not burning those fossil fuels in the first place). 

While high quality carbon offsets may play a role for hard to abate residual emissions, it is important for organisations to provide clear and transparent information to consumers on where and how offsets have been used and what those offsets can achieve. 

EnergyAustralia’s Chief Customer Officer, Kate Gibson said a decision was taken to withdraw the Go Neutral product from market in July 2024. 

“In recent years, questions have begun to emerge about the benefits of carbon offsets, including those offered as part of certified Government programs such as Climate Active and whether they are having the impact intended,” said Ms Gibson.  

“While EnergyAustralia participated in the Climate Active certified carbon offset program in good faith, today EnergyAustralia accepts that there is legitimate public concern about the efficacy of these programs. 

“Carbon offsets should not be used to delay or diminish the important work that needs to be done to actively decarbonise. EnergyAustralia is now focused on more effective ways of helping its customers to directly reduce the emissions associated with their energy use.” 

EnergyAustralia’s future focus 

EnergyAustralia’s future focus is firmly on direct decarbonisation initiatives. 

EnergyAustralia no longer offers its Go Neutral products to new residential customers and is phasing the product out for existing residential customers during 2025. Instead, EnergyAustralia’s Climate Action Transition Plan first launched in 2023 is focused on taking steps to offer products and services that lead to direct decarbonisation. As one of Australia’s largest energy companies, EnergyAustralia recognises the crucial role it plays in decarbonisation initiatives and managing the impacts of these initiatives on customers and the Australian community.  

EnergyAustralia has made a commitment to net-zero greenhouse gas emissions for its generation operations by 2050 and is on track to reduce those emissions by over 60% in 2028 compared to its 2019 baseline. EnergyAustralia intends to achieve this by reducing its reliance on coal generation including through the closure of its Yallourn coal-fired Power station before 2030 and the closure of its Mt Piper coal fired power station before 2040.  EnergyAustralia aims to expand the amount of renewable energy in its portfolio and is investing in technologies like grid scale batteries and pumped hydro to allow more renewable energy into the system.

EnergyAustralia also sees the reduction in emissions created by the consumption of energy by its customers as a key focus area for its future operations. This was outlined in 2024 in its Climate Transition Action Plan. EnergyAustralia is providing options for customers to directly decarbonise including:   

  • high quality rooftop solar installations and battery products sold through our EA Solar business;
  • EnergyAustralia’s Battery Ease, which allows eligible customers to participate in EnergyAustralia’s Virtual Power Plant through a bring-your-own battery arrangement; and
  • EnergyAustralia’s Community Battery Ease, which allows eligible customers in 13 NSW postcodes to participate in a lower cost energy plan that EnergyAustralia can offer as a result of the reduced cost to deliver energy to their homes through Community Battery initiatives.

EnergyAustralia is actively seeking to expand its virtual power plant and community battery offerings, commencing initiatives that provide opportunities to store and use more energy at times where renewables are more prevalent in the system. It is also seeking to launch electric vehicle offerings for customers. 

Engagement between Parents for Climate and EnergyAustralia 

EnergyAustralia recognises the important role that climate advocacy groups play in representing the interests of the Australian community. It proposes to continue to engage constructively with Parents for Climate and other community groups as it navigates the energy transition. 

Email to Customers

As part of the settlement, on or around 21 May 2025, EnergyAustralia sent the below email to current and former customers of the Go Neutral product.

Subject: Important message: Go Neutral Litigation – EnergyAustralia acknowledges issues with “offsetting” and moves away from its carbon offset product for its gas and electricity retail plans

Text:

Dear [name]

You’ve received this email because you are a current customer of EnergyAustralia’s and have participated in our Go Neutral program. As we previously advised you, we no longer offer our Go Neutral product and do not intend to offer the product in future.

In July 2023, the advocacy organisation Parents for Climate launched legal action against EnergyAustralia in the Federal Court of Australia alleging that EnergyAustralia’s marketing of its Go Neutral carbon offset product amounted to misleading or deceptive conduct contrary to the Australian Consumer Law.

EnergyAustralia and Parents for Climate have agreed to settle the litigation and as part of that settlement EnergyAustralia has agreed to publish a public statement. The public statement is attached to this email and published on our website.

We acknowledge that carbon offsetting is not the most effective way to assist customers to reduce their emissions and we apologise to any customer who felt that the way we marketed our Go Neutral products was unclear. EnergyAustralia has now shifted its focus to direct emissions reductions.

Greenhouse gases are harmful to the environment and contribute to climate change. While offsets can help people to invest in worthwhile projects that may reduce greenhouse gas emissions elsewhere, offsets do not prevent or undo the harms caused by burning fossil fuels for a customer’s energy use. Even with carbon offsetting, the emissions released from burning fossil fuels for a customer’s energy use still contribute to climate change.

We see this as an opportunity for us to continue to take a leadership role in the renewable energy transition and recognise the important role that climate advocacy groups play in representing the climate interests of the Australian community.

EnergyAustralia’s future focus is firmly on direct carbonisation initiatives including the closure of its Yallourn and Mt Piper coal-fired plants.

Yours sincerely

Kate Gibson

Chief Customer Officer

Media

Why the carbon offset ‘swear jar’ needs an overhaul, Canberra Times, 24 May 2025

‘Carbon neutral’ is dead. Here’s what the next greenwashing battleground will look like, Crikey, 23 May 2025

EnergyAustralia apologises over offsets after greenwashing lawsuit, Sydney Morning Herald, 19 May 2025

EnergyAustralia Apologizes to Customers After Greenwashing Case, Bloomberg, 19 May 2025

Energy Australia apologises to 400,000 customers and settles greenwashing legal action, The Guardian, 19 May 2025

EnergyAustralia apologises over claims of ‘greenwashing’ with Go Neutral products, ABC News, 19 May 2025

EnergyAustralia accused of misleading customers over ‘carbon-neutral’ bills, The Age, 14 May 2025

Energy Australia is in court accused of greenwashing. What is the case about and why is it significant?, The Guardian, 14 May 2025

Parent group challenges energy giant over carbon claims, Canberra Times, 14 May 2025

Beginning of the end for carbon offsets? Parents take energy giant to court, Renew Economy, 22 April 2025

Australians are being misled by ‘dodgy’ offsets, say Fortescue, Sydney Morning Herald, 13 February 2025

Australians are being misled by ‘dodgy’ offsets, say Fortescue, Sydney Morning Herald, 12 February 2025

One hundred ‘carbon-neutral’ corporates quit government scheme over integrity concerns, Sydney Morning Herald, 7 February 2025

EnergyAustralia drops Go Neutral home energy product for new customers ahead of landmark court case, Daily Telegraph, 20 September 2024

EnergyAustralia’s greenwashing court battle heads to 2025 trial, Capital Brief, 19 June 2024

Fact or opinion? The dispute in EnergyAustralia’s greenwashing court battle, Capital Brief, 22 November 2023

Greenwashed? Australian parents take energy giant to court, LSJ Online, 18 September, 2023

Climate action group sues major energy provider, Utility Magazine, 10 August, 2023

EnergyAustralia to face legal action for alleged greenwashing, Lawyers Weekly, 10 August, 2023

Major energy provider under fire for greenwashing, Energy Magazine, 10 August, 2023

EnergyAustralia accused of false carbon neutral claims, The Canberra Times, 9 August 2023

Australian parents sue EnergyAustralia over ‘carbon neutral’ claims, Lawyerly, 9 August, 2023

EnergyAustralia accused of false carbon neutral claims, The West Australian, 9 August, 2023

Jubilee v Export Finance Australia & NAIF

About

Federal Court of Australia | NSD724/2023

Equity Generation Lawyers represents Jubilee Australia, a human rights and environmental organisation, in a Federal Court of Australia action seeking to compel Federal government agencies that subsidise fossil fuel projects to disclose the full environmental effects of those activities.

The claim was filed on 18 July 2023.

Who the claim is against

The claim was filed against Australia’s export credit agency, Export Finance Australia (EFA), and the Northern Australia Infrastructure Facility (NAIF), a A$7bn fund for infrastructure in northern Australia.

Prior to filing both EFA and NAIF provided taxpayer-subsidised financial support to fossil fuel projects that, without subsidised funding, may not have gone ahead.

The claim names the Chairperson of each agency as a representative for the relevant Board who, in turn, must ensure the reporting requirements below are met.

What the claim alleges

The action alleges certain contraventions of section 516A(6) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) that require government agencies and departments to include the following information in their annual reports:

  1. How their activities accord with the principles of ecologically sustainable development – including the precautionary principle and the principle of intergenerational equity;
  2. The effect of their activities on the environment;
  3. The measures they are taking to minimise the impact of their activities on the environment;
  4. The mechanisms for reviewing and increasing the effectiveness of measures to minimise the impact of the activities on the environment.

The definition of activities includes developing and implementing policies, plans, programs and legislation.

Jubilee Australia alleged that EFA and NAIF failed to adequately disclose the information above in its last three annual reports, including failing to disclose the true effect of its financing activities on the environment. Since the claim was filed, EFA and NAIF have published annual reports for the 2022/2023 and 2023/2024 financial years.

The process

The first case management hearing took place on 12 December 2023. Subsequent orders were made that set out a timetable for Jubilee Australia to apply for leave to amend the pleadings and consider the possibility of the respondents opposing the new pleadings.

Jubilee Australia elected to discontinue proceedings against EFA and its former Chair because it considered EFA’s 2022/2023 annual report demonstrated overall compliance with its legal obligations to disclose the impacts on the environment of its activities, including its financing activities. You can see Jubilee’s statement on the resolution of the proceeding here.

Since May 2024, Jubilee and NAIF have engaged in correspondence, and in October 2024, NAIF published a further annual report. Because the contents of NAIF’s 2023/24 annual report disclosed the environmental impacts of the projects it funded the matter was resolved in January 2025.

Jubilee Australia’s legal representatives

Ron Merkel SC and Natasha Hammond were counsel for Jubilee Australia. 

Re AGL Energy Limited

About

Re AGL Energy Limited | Supreme Court of New South Wales | [2022] NSWSC 576

Equity Generation Lawyers, a specialist climate risk firm, represented Joshua Ross, a high value shareholder in AGL Energy Limited, in relation to an intervention into New South Wales Supreme Court proceedings on the application by the company to approve scheme materials for a proposed demerger.  

About the intervention

The board of AGL Energy Limited, Australia’s biggest greenhouse gas emitter, announced in 2021 that they intended to pursue a demerger creating two separate entities, AGL Australia Limited (a retailer) and Accel Energy Limited (a generator). 

The proposed demerger was being pursued by way of a scheme of arrangement under the Corporations Act 2001 (Cth), which required Court approval at two stages, along with a shareholder vote. 

Initially, the Court must approve the materials that AGL puts to shareholders for the vote and to convene the scheme meeting where the vote takes place. 

Shareholders are typically unable to access the materials prior to the ‘first hearing’ of the application. In the circumstances, without having access to the materials, our client was concerned that those materials may not adequately address risks associated with the demerger.

On 5 May 2022, at a hearing of the Supreme Court of New South Wales before Justice Black, we sought leave to be heard in the Court’s hearing of the application, including on the basis that the proposed demerger was not in the best interests of shareholders. 

Leave was granted and AGL tendered the scheme materials and was required to provide the materials to our client to review. 

The Court made orders to publish the scheme booklet unamended however it ordered that the videos that AGL proposed to publish on the demerger were to be amended to disclose the risks and disadvantages of the demerger.  

The Court’s decision can be found here.

Withdrawal of the demerger

On 30 May 2022 AGL announced that they were withdrawing the demerger proposal. The announcement can be found here.

This followed successful campaigning by several significant shareholders who opposed the demerger on the basis that the proposed energy generation arm intended to continue running its fossil fuel assets well into the 2040s.

The shareholders had, in 2021, supported a resolution on the disclosure of Paris-aligned goals and targets for the proposed demerger. Despite this, the Scheme Booklet noted that neither of the demerged entities would be Paris aligned.

Legal representation

Joshua Ross was represented by Equity Generation Lawyers and Mr Jerome Entwisle of Banco Chambers. 

Media

“The intervention of Joshua Ross … livened up an otherwise routine NSW Supreme Court proceeding called to approve the release of AGL’s scheme booklet for the demerger.”

AGL shareholder backed by Atlassian protests demerger risks in court, Lucas Baird and Hannah Wootton, AFR, 5 May 2022

“Mr Ross argued that the scheme booklet did not adequately recognise that Accel was heading for a “financial cliff” soon after 2030, based on expectations surrounding the decline of coal-fired power generation and moves by larger corporate customers to seek cleaner energy supplies.”

AGL has five weeks to win shareholders over to its demerger, Angela Macdonald-Smith, AFR, 6 May 2022

“… the market has turned against fossil fuels. There is declining long-term shareholder value in coal-fired power stations. Banks are reportedly reluctant to lend to AGL given its ownership of coal and gas generators. However, it would seem logical for them to be willing to finance renewable energy investments.”

Australia’s biggest carbon emitter buckles before Mike Cannon-Brookes – so what now for AGL’s other shareholders?, Mark Humphery-Jenner, The Conversation, 30 May, 2022

Abrahams v Commonwealth Bank of Australia (2021)

About

Federal Court of Australia | NSD864/2021

As a result of media enquiries on this matter we provide the information below.

Background

In 2019, the Commonwealth Bank of Australia (CBA) announced publicly its Environmental and Social Framework, which included the following commitment:

“We ensure our business lending policies support the responsible transition to a net zero emissions economy by 2050, by … only providing Banking and Financing activity to New oil, gas or metallurgical coal projects if supported by an assessment of the environmental, social and economic impacts of such activity, and if in line with the goals of the Paris Agreement.”

Our clients, Guy and Kim Abrahams (as trustees for the Abrahams Family Trust), are long-term shareholders in CBA. They became concerned about the veracity of this commitment, after discovering that CBA appeared to be involved in the financing of seven new oil and gas projects as follows:

  • providing over US$50 million in September 2019 for a US$545m facility for the development and construction of the new Permian Highway Pipeline, a 692 km gas pipeline that is now complete, transporting 2.1 billion cubic feet per day of natural gas across Texas in the USA;
  • as one of the “lead arrangers” in a lending syndicate providing US$1.05 billion debt financing for Gaslog Ltd’s seven new LNG vessels in December 2019;
  • as an “arranger” for providing US$629 million in financing for FLEX LNG Ltd’s new LNG vessels in February 2020;
  • contributing A$10m to a A$693 million loan in April 2020 to Energy Infrastructure Investments to fund capex of the Tipton West coal seam gas project in Queensland;
  • contributing US$48.5 million to a US$713 million loan facility, in September 2020, to Euronav NV for four new “very large crude carriers”;
  • as a “mandated lead arranger” providing US$50 million to ASX listed Santos Limited for a US$750m bridging loan that backed Santos’ acquisition of the undeveloped Barossa Gas Field off northern Australia in October 2020;
  • as one of seven bank “arrangers” collectively providing a US$550m revolving credit facility, or “Reserves Based Lending Facility”, in December 2020 to Siccar Point Energy E&P Limited, whose development plans include the new Cambo oil field in waters off the Shetland Islands, Scotland.

The Claim

On 26 August 2021, our clients filed an application in the Federal Court of Australia seeking access to internal company documents under section 247A of the Corporations Act 2001 (Cth) (Corporations Act). 

Documents were sought in relation to each of the seven projects in the context of CBA’s 2019 Environmental and Social Framework (E&S Framework) and Environmental and Social Policy (E&S Policy), in particular CBA documents created for the purposes of:

  • carrying out an assessment of the environmental, social and economic impacts of the projects; 
  • carrying out an assessment of whether the projects are in line with the goals of the Paris Agreement; and
  • discharging any obligation or responsibility that any CBA unit, division or employee has under CBA’s internal E&S Policy.

The plaintiffs also sought documents regarding the adoption or implementation of CBA’s revised climate change commitments. CBA’s revised commitments were published on 11 August 2021.

The Originating Process dated 26 August 2021 can be viewed here.

The request to inspect the books

Section 247A of the Corporations Act allows members (shareholders) of a company to apply to the Court to make an order authorising the shareholders to inspect the books of the company. 

Good faith and proper purpose

On 4 November 2021, the matter was listed for a case management hearing before Justice Cheeseman of the Federal Court of Australia. At the hearing, the plaintiffs’ counsel was asked to make short oral submissions to the Court by reference to the evidence as to whether the plaintiffs’ application for inspection was being made in good faith and for a proper purpose. The Court was satisfied on the basis of a limited admission by CBA and the evidence before the Court that the plaintiffs were acting in good faith and that the inspection they seek is to be made for a proper purpose in accordance with s 247A of the Corporations Act (Cth). 

Procedural history

The court made orders by consent on 4 November 2021 that CBA produce documents to the plaintiffs for inspection by 10 February 2022

The documents included those relevant to CBA’s assessment of the environmental, social and economic impacts of the seven oil and gas projects and documents on the implementation of CBA’s commitment not to finance new oil or gas projects unless they were in line with the goals of the Paris Agreement. The Court ordered the production of relevant Board documents and documents that related to CBA’s August 2021 amended policy that limited its commitment on new oil and gas projects to only project finance. The consent orders contemplated redactions by CBA with respect to certain types of information and the ability for the shareholders to apply to the Court to access such redacted information.

On 8 July 2022, the shareholders applied to the Court to remove redactions from certain documents.

On 1 November 2022 the Court ordered by consent that CBA provide specified documents to the Abrahams.

The application for further information was then dismissed by consent on 22 December 2022.

Finalisation of the proceedings

The proceedings have now been finalised on the basis that:

  1. The Abrahams may use certain documents received from CBA for the purpose of further litigation against CBA; and
  2. The Abrahams may use certain documents received from CBA for the purpose of providing those documents to APRA and ASIC.

The final orders dated 13 April 2023 can be accessed here.

The legal representatives

Guy and Kim Abrahams, as trustees for the Abrahams Family Trust, were represented by Equity Generation Lawyers. 

Scott Nixon SC and Alice Zheng were the plaintiffs’ counsel.

Christopher Vanderstock & Kathleen Davies v State of Victoria

About

High Court of Australia | M61/2021 

Equity Generation Lawyers represents Christopher Vanderstock and Kathleen Davies in a High Court of Australia action challenging the constitutional validity of the Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) (ZLEV Act). 

Chris is a nursing manager living with his family in the suburbs of Melbourne – he drives a fully electric plug in vehicle. Kath is an engineering consultant also living in the Melbourne suburbs – she and her family drive a hybrid electric vehicle. From 1 July 2021, Chris, Kath, and other Victorian electric vehicle drivers are required by the ZLEV Act to maintain a log of the use of their vehicles and pay an annual charge to the Victorian Government based on the number of kilometres driven in the preceding 12 months.

About the claim 

Chris and Kath brought a claim in the High Court of Australia against the State of Victoria to challenge the ZLEV Act. They argued that the State of Victoria lacks the constitutional authority to impose such a charge. The basis of their claim was section 90 of the Commonwealth Constitution, which reserves the exclusive power to levy duties of excise for the Commonwealth. The claim was filed in the Melbourne Registry of the High Court of Australia on 16 September 2021. 

The Commonwealth Attorney General intervened in the proceeding in support of our clients’ position on 8 July 2022. The Australian Trucking Association has filed submissions as an amicus curiae or friend of the court in support of our clients’ case.

The Attorneys-General of South Australia, Western Australia, Queensland, New South Wales, Tasmania, the Northern Territory, and the Australian Capital Territory have intervened in the proceedings in support of the State of Victoria’s position.

The High Court’s website for the matter, which contains links to the parties’ submissions and other information, is here.

Hearing

The case was heard by a full bench of the High Court in Canberra on 14, 15 and 16 February 2023. The transcripts of oral argument before the Court are available on the High Court’s case webpage.

Judgment

On 18 October 2023, the High Court found in favour of our clients and the Commonwealth and held that the State of Victoria’s Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic) is unconstitutional. This means that Victoria’s ZLEV charge is invalid. The High Court’s judgment can be found here. 

The plaintiffs’ legal representative

Mr Vanderstock and Ms Davies are represented by Equity Generation Lawyers.

Ron Merkel KC, Craig Lenehan SC, Frances Gordon, and Thomas Wood are the plaintiffs’ counsel.

Christopher (Chris) Vanderstock is a father and nursing manager who lives in the suburbs of Melbourne with his partner and children. He is the owner of a fully electric car and runs a YouTube Channel to educate and inform Australians on all things EV, solar power, battery storage, and other emerging technologies.

Kathleen (Kath) Davies is a mother and engineering consultant who lives with her family in the suburbs of Melbourne. She is passionate about the environment and bought her first electric vehicle in 2012 to reduce her family’s dependence on fossil fuels. Kath has also been a participant in numerous climate initiatives such as Shift Australia and Climate Engineers’ declaration of a climate emergency.

Media

“The blockbuster case, which started in Canberra on Tuesday, affects about 15,000 car owners and involves every state and territory, will determine how EVs are taxed and what level of government can collect revenue from their use..”

Blockbuster High Court case tests validity of electric vehicle tax – The Australian Financial Review

“Lawyer David Hertzberg says the landmark case will have implications for the division of power between the commonwealth and the states”

High court charged with deciding if Victoria has the power to tax electric vehicles – The Guardian

“By making electric vehicles more expensive, this tax disincentivises Victorians from making the switch to cleaner cars that cut emissions and improve air quality. In short, it’s bad for the climate, it’s bad for Victorians, and it may be unconstitutional” said Jack McLean.

Stoush over electric vehicle tax nears Australian high court hearing – The Guardian

The Albanese government has joined a legal bid to strike down Victoria’s controversial electric vehicle tax, opening up a fight with states over who will control billions of dollars in revenue collected from motorists. … [Vanderstock and Davies’] lawyer, Jack McLean, said the pair welcomed the Commonwealth’s intervention.

Albanese government seeks to pull plug on Victoria’s electric vehicle tax – The Age

Transport is Victoria’s second-biggest contributor to greenhouse gas emissions, after its ageing coal-fired power plants, and these emissions are still rising. Cars are responsible for half of these transport emissions. … although Victoria has joined other global jurisdictions by setting a target of reaching net zero emissions by 2050, this is unlikely to happen if the state’s transport emissions continue to increase. … 

High court challenge to Victoria’s electric vehicle tax – Sydney Morning Herald

Attorney-General Mark Dreyfus filed an intervention in the High Court in support of two motorists challenging the electric vehicle tax. … The outcome of the case will determine how other states and territories implement their taxes relating to electric vehicles.

Federal government challenges Victoria’s electric vehicle tax – Sky News

“The Andrews government is imposing a rushed tax cash grab on EVs that will see Australia and Victoria left behind,” Mr McLean told The New Daily. “It makes EVs less affordable. It ends up being about a $5000 tax over the life of a car

‘Cash grab’: Victorian drivers mount High Court challenge over electric vehicle tax – The New Daily

The system, which relies on drivers sending in photos of odometers and in some cases estimates distances driven, has been dubbed the “worst EV policy in the world” and has seen drivers complaining about wildly inaccurate charges. A letter sent to the supporters by Equity Generation, the lawyers representing Vanderstock and Davies, confirms that the federal government will support the defendants.

Albanese government backs legal challenge to Victoria EV tax – The Driven

“Instead of taxing clean technologies, the Victorian government should be concentrating on getting dirty cars off the road,” Mr Vanderstock said.

High court challenge to Victoria’s electric vehicle tax – Sydney Morning Herald

Two Victorian EV drivers are challenging the state’s road tax in the High Court, on the basis the constitution gives the Commonwealth the exclusive power to impose such a levy.

Hybrid drivers demand an end to Victoria’s ‘double tax’ – The Age

Victoria is the only state in Australia – and the world – to introduce a road user tax that applies to electric vehicles only. 

EV drivers lodge High Court challenge to Victoria’s electric road tax – The Driven

Sharma v Minister for Environment

About

The Appeal | Minister for the Environment v Sharma & Others | Full Court of the Federal Court of Australia | VID389/2021

The Minister’s appeal was heard by the Full Court of the Federal Court of Australia from 18-20 October 2021.

In its judgment delivered 15 March 2022, the Full Court reversed the trial judge’s decision and found that the Minister does not have a duty of care to avoid causing climate harm to young Australians. The Full Court’s judgment is available here. A summary is here. The Full Court’s judgment as to costs is here. 

A statement by our clients on their decision not to appeal to the High Court of Australia is available here. 

A statement by EGL on the abuse of our client Anjali Sharma is available here.

The catastrophic climate impacts from mining and burning coal have not changed. The evidence accepted by the court concluded that every coal mine matters. The emissions from one coal mine can trigger tipping points causing extensive harm to people and the environment. 

Minister Sussan Ley MP approved the Vickery Extension Project on 16 September 2021.

The Trial | Sharma & Others v Minister for the Environment | Federal Court of Australia | VID607/202

The Federal Court of Australia has found that the Minister for the Environment has a duty of care to avoid causing injury to young people while exercising her powers to approve a new coal project.

The class action was brought by high school students Ambrose, Anj, Ava, Bella, Izzy, Laura, Luca, Tom and Veronica, and on behalf of young people in Australia and around the globe.

In the May judgment, Justice Bromberg found at [293]:

It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.

The July judgment contains a declaration that:

The [Minister for the Environment] has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649, to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.

The case would not have been possible without the students’ litigation representative, Sister Marie Brigid Arthur, to whom we are dearly grateful.

Noel Hutley SC, Emrys Nekvapil, Katherine Brazenor, Stephanie C B Brenker and Nicholas Petrie adroitly represented the students at the bar table.

Expert witnesses for the students were Professor Will Steffen, Professor Tony Capon, Dr Ramona Meyricke and Dr Karl Mallon, whose report can be accessed here.

Former State and Territory fire chiefs and senior emergency services personnel, Ewan Waller, Steven Warrington (AFSM), Major General (Retd) Peter Dunn (AO) and Gregory Mullins (AO, AOFSM) kindly put on evidence for the students.

Jack McLean co-ordinated the matter at Equity Generation Lawyers with critical support from James Higgins and Varsha Yajman. Ling McGregor and Clare Schuster provided crucial contributions throughout the proceedings. Guidance was provided by David Barnden.

For interviews, contact James Lorenz on 0400 376 021 or james@pr-arc.com, or Dylan Quinnell on 0450 668 350 or dylan.quinnell@climatemediacentre.org.au.

What is the case about?

The climate crisis is accelerating across the world, fuelling rising temperatures and extreme weather events such as catastrophic bushfires, floods, and droughts. Burning coal is the single largest contributor to this crisis and Australia is the world’s largest coal exporter. To make it worse, we know that young people and children are particularly vulnerable to the impacts of climate change.

In September 2020, eight young people from around Australia, represented by Equity Generation Lawyers, and with the assistance of 86 year-old litigation guardian Sister Brigid Arthur, brought a class action against the Federal Minister for the Environment alleging that the Minister has a duty to avoid causing future harm related to the carbon emissions that would result from the approval of a proposed coal mine extension project in the state of New South Wales known as the Vickery Extension Project. If approved, the coal burned from the Vickery Extension Project will result in 100 million tonnes of carbon emissions over the next 25 years, further fuelling the climate crisis. Our clients argued that approving the mine would breach the alleged duty.

Key milestones in the case

  • 8 September 2020: the case was filed against the Commonwealth Minister for the Environment. The main public documents are the applicants’ Amended Concise Statement and the Amended Originating Application.
  • 29 October 2020: the Minister filed her Concise Statement in Response, effectively a defence.
  • December 2020: the applicants finalised their evidence. The Minister did not file any evidence.
  • 8 February 2021: the proponent of the Vickery Extension Project, Vickery Coal Pty Ltd, a wholly owned subsidiary of ASX listed Whitehaven Coal Limited, was joined as a respondent in the proceedings for the limited purpose of participating in relation to the applicants’ application for an interlocutory injunction.
  • 2-5 March 2021: a four day trial was held in front of Justice Bromberg at the Federal Court in Melbourne.
  • 27 May 2021: Justice Bromberg published his May judgment setting out his reasoning in finding a duty of care. His Honour asks the parties to make further submissions on a number of points of law in relation to the formulation of the duty, the representative nature of the proceedings, and legal costs.
  • 8 July 2021: Justice Bromberg published his July judgment, which included the declaration of the Ministers duty and orders for the Minister to pay the applicants’ legal costs.

About the students

The school students who brought the case are passionate about climate justice. They come from all around Australia and were all involved in organising for School Strike 4 Climate. The students brought their claim with the assistance of their litigation guardian, Sister Brigid Arthur.

The students showed us that every young person has the power to make a difference.

Media

“It was immediately obvious that this was groundbreaking. This is Mabo for the climate,” said Dr Chris McGrath.

Planetary Defence, Kieran Pender, The Monthly, July 2021

[I]n ordering the government to take “reasonable care to avoid personal injury to the children,” it recognized climate change as an “intergenerational crime,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University and a lawyer who represents several U.S. cities and states suing fossil fuel companies.

Big Setbacks Propel Oil Giants Toward a ‘Tipping Point’, Somini Sengupta, New York Times, 29 May 2021

This is the first time a court of law, anywhere in the world has recognised that a government minister has a duty of care to protect young people from the catastrophic harms of climate change.

Ava Princi in Politicians have duty of care to protect children from climate harm, court finds, Nick O’Malley, SMH, 27 May 2021

This is an amazing decision … an amazing recognition that people in power must not harm younger people by their decisions.

David Barnden in Greta Thunberg hails Australian court ruling as ‘a huge win for the whole climate movement’, SBS, 28 May 2021

[The] duty… entitles the children, or more properly people acting on their behalf, to sue the minister for negligence should they believe that those interests have not been adequately taken into account.

‘Duty of care’ coal ruling undermines democracy, Henry Ergas, The Australian, 4 June 2021

…the decision could have widespread ramifications not just for the Environment Minister, but for companies and other ministers.

Australian teenagers’ climate change class action case opens ‘big crack in the wall’, Michael Slezak Penny Timms, ABC, 27 May 2021

The case resulted in a landmark ruling last week that the country’s environment minister has [a] duty of care … to children to consider the harm caused by climate change.

“Australia’s Greta Thunberg” steps up climate change activism, Melanie Burton, Reuters, 1 June 2021

[T]he Court accepted climate change is real and it is “reasonably foreseeable” that climate change will cause future harms to Australia’s children. As a result of increased temperatures and more severe natural disasters, it was accepted that children would suffer from heatwaves, injuries or death from bushfires, and injuries from other natural disasters.

The Federal Court’s climate change ruling shows power of young people in holding our leaders to account, Annika Reynolds, Women’s Agenda, 27 May 2021

A class action launched on behalf of young people everywhere seeks … to stop the Australian Government approving an extension to Whitehaven’s Vickery coal mine, arguing it will harm young people by exacerbating climate change. …it could break new legal ground with widespread ramifications, causing problems for any new coal mine in Australia — and possibly any fossil fuel project — if it is successful.

Class action to stop planned coal mine extension filed by climate action-focused Australian teenagers, Michael Slezak & Penny Timms, ABC News, 9 September 2020

The class action, prepared by Victorian firm Equity Generation Lawyers, seeks to invoke the minister’s common law duty of care to protect younger people against climate change.

Kids, nun take Ley to court over coal mine, Gus McCubbing, 7News, 27 October 2022

Saying the environment minister owes the young plaintiffs a duty of care is a novel approach. In [the Applicants’] view, signing off on a new coal project will breach that duty. Such an approach to a climate change case has not been tested before in Australia and would chart new territory if successful.

These Aussie teens have launched a landmark climate case against the government. Win or lose, it’ll make a difference, Laura Schuijers, The Conversation, 10 September 2020

A class action has been launched on behalf of young people across the world in an attempt to stop the federal government approving an extension to a coal mine in northwest NSW. The injunction, an Australian-first and filed in the Federal Court on Tuesday, argues expanding Whitehaven’s Vickery mine near Gunnedah will harm young people across the world by making climate change worse.

Eight teenagers have launched legal action to stop the expansion of a NSW coal mine, Evan Young, SBS, 9 September 2020

The eight young Australians have all been involved in “School Strike For Climate”, which was initiated by student activist Greta Thunberg in 2018 demanding that world leaders adopt urgent measures to stop an environmental catastrophe.

Australia students launch class action to prevent coal mine approval, Swati Pandey, Reuters, 16 September 2020

Our government is still approving these mines knowing they are a direct cause of rising temperatures, increasing CO2 levels, extreme nature events, ecosystems disappearing and food and water shortages. It is time to put our futures before fossil fuels and profits.

Bella Burgemeister in These Teens (And A Nun) Are Taking The Government To Court Over Climate Change, Rachael Conaghan, Junkee, 9 September 2020

Every consecutive summer is labelled ‘the worst summer this country has ever faced’, and yet instead of addressing this crisis more mines are being given the green light … this has to stop and I am proud to be doing something to help stop it.

Anjali Sharma in Kids, nun take Ley to court over coal mine, Gus McCubbing, 7News, 27 October 2022

If we win … it could have huge ramifications for other new coal mines in Australia, and it might mean the end of any new coal mine in Australia.

David Barnden in Class action to stop planned coal mine extension filed by climate action-focused Australian teenagers, Michael Slezak & Penny Timms, ABC News, 9 September 2020

In a world first Justice Mordecai Bromberg ruled the minister had a duty of care to avoid future harm to young people.

Stepping up when adults don’t: ‘It’s just so real for us right now’, Meg Keneally, The Guardian, 26 September 2021

It is the first time in the world that such a duty of care has been recognised.

David Barnden in Australian court finds government has duty to protect young people from climate crisis, Adam Morton, The Guardian, 27 May 2021

The devastating impact of the impending climate crisis will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted.

Justice Bromberg, First Instance Judgment

My future and the future of all young people depends on Australia stepping away from fossil fuel projects and joining the world in taking decisive climate action.

Ava Princi in Australian court finds government has duty to protect young people from climate crisis, Adam Morton, The Guardian, 27 May 2021

Climate activist teens have claimed a legal victory after the Federal Court found the “risk of death” a coal mine posed meant the Environment Minister owed them a duty of care when approving the project.

Federal Court rules on teens’ climate change class action against Minister, Blake Antrobus and Evin Priest, News.com, 27 May 2021

[The] judgement opens the door for future litigation if the minister is not careful about approving projects that could harm the next generations of Australians… But importantly, it puts the federal environment minister on notice — while political terms might be only short, decisions now have intergenerational consequences for the future.

In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people, Laura Schuijers, The Conversation, 27 May 2021

This is a duty about life and death for Australian children. It seems inconceivable that an environment minister, a member of parliament representing the people of Australia, would seek to rid herself of this sensible responsibility.

David Barnden in Australian government to appeal ruling that it must protect children from climate harm, Graham Readfearn, The Guardian, 9 July 2021

We made the Federal Court of Australia accept climate science unequivocally and realise that climate change is becoming an ever-relevant and ever-growing problem that’s going to impact young people for many years to come… The fact that they were willing to take eight children back to court, that speaks volumes.

Anjali Sharma in These three young activists are changing the conversation on the climate crisis, Erin Stutchbury & Taryn Priadko, ABC News, 28 May 2022

Various watershed moments in 2021, [including] the Australian ‘Sharma’ case on the climate change duty-of-care, are transforming the way boards approach decision-making.

The Next Frontier – Clean Energy and Decarbonisation, Giorgia Fraser, Business News, 30 September 2021

O’Donnell v Commonwealth of Australia

About

Equity Generation Lawyers represented Kathleen (Katta) O’Donnell in the first legal action that sought to hold the Australian Government to account over climate change risks.

It was the first, and is still the only, legal action in the world that sought to hold a sovereign nation accountable for not disclosing the risks of climate change to sovereign bond investors.

The class action was filed on 22 July 2020 and was subject to a failed attempt by the Commonwealth to completely strike out the claim.

The matter has been reported by the New York Times, Financial Times, The Economist, Bloomberg, Reuters and all major Australian media outlets.

Michael Burger, Executive Director of the Sabin Centre for Climate Change Law at Columbia University, stated in the Financial Times:

This case, if successful, could fundamentally alter the way national governments and corporations approach climate-related financial disclosures.

Ms O’Donnell, in the class action, represented all retail bondholders who, during the period 7 July 2020 and 20 December 2022 acquired, and continued to hold, one or more units of Australian:

  • exchange-traded Treasury Indexed Bonds (eTIB) maturing in 2050 with ASX code GSIC50; and
  • exchange-traded Treasury Bonds (eTB) maturing in 2047 with ASX code GSBE47.

Ms O’Donnell, on behalf of the class, sought a declaration that the Commonwealth of Australia misled and deceived investors for the duration of the class period by not disclosing climate change risks in bond issue documents and on the website of the Australian Office of Financial Management.

Ms O’Donnell, on her own behalf, sought a declaration that the Commonwealth of Australia, since 7 July 2020, and continued since then to, mislead and deceive investors by not disclosing climate change risks in bond issue documents. She also sought an injunction to restrain or prohibit behaviour that would result in ongoing misconduct.

Sovereign bond market

Sovereign bonds are issued by nation states to fund government expenditure. The Commonwealth raises debt through a wholesale market for Australian Government Bonds, in which financial institutions participate.

Retail investors, like Ms O’Donnell, participate indirectly in the wholesale market for Australian Government Bonds by obtaining “depository interests” of wholesale bonds. Those depositary interests are traded on the ASX. The prices for retail and wholesale bonds are linked.

As at 8 October 2021, Australia had issued $847 billion in Australian Government Securities.

Key text from the Australian Government’s Intergenerational Report 2021 was reproduced in the judgment on the strike out application:

Climate change is expected to have physical effects and transition effects on Australia’s economy. Physical effects are impacts caused directly by a changing climate. Transition effects relate to the impacts of global and domestic efforts to reduce greenhouse gas emissions. This includes the costs of Australia’s own mitigation efforts, as well as changes to demands for our exports due to mitigation actions by our trading partners. There could also be impacts on global capital flows.

A reduction in real GDP associated with climate change would have a fiscal impact through reducing taxation revenue, as well as increasing pressure on expenditure. Other revenue sources such as fuel excise and mining royalties could also be affected by changes in demand and consumption related to a global transition away from fossil fuel use.

Any reduction in GDP is likely to be unevenly distributed across sectors and regions. The agricultural sector is particularly vulnerable to the physical effects of climate change, the resources sector is particularly vulnerable to the transition effects, and the financial sector is vulnerable to both.

The decision on the application also cited a 2021 report by FTSE Russell “Anticipating the climate change risks for sovereign bonds Part 2: Insights on financial impacts” dated June 2021.

Amongst other things it states that in a “disorderly transition” scenario in which appropriate climate change policy is not introduced until 2030, leading to deeper emission reductions than in an “orderly transition” scenario, Australia faces a 156% increase in its debt to GDP ratio.

Bond investors are taking climate risk seriously. In November 2019, Sweden’s Central Bank, Sveriges Rijksbank, divested Queensland and Western Australian bonds on the twin bases that Australia is “not known for good climate work” and the issuing jurisdiction’s per capita domestic carbon emissions were so high as to create a financial risk for the bank.

The strike out application

On 11 March 2021 the Commonwealth filed an application to strike out Ms O’Donnell’s claim.

A one-day hearing on the strike out application took place on 29 July 2021 before Justice Murphy of the Federal Court of Australia.

The decision on the strike out application was handed down on 8 October 2021. It is O’Donnell v Commonwealth of Australia [2021] FCA 1223 and can be accessed here.

The Court permitted the claim in misleading or deceptive conduct to proceed and refused the Commonwealth’s application to disband the class action. Ms O’Donnell’s claims with respect to a duty of disclosure and against Commonwealth officials were struck out.

The decision sets out details of the applicant’s claim, including the allegations that:

  • physical and transition risks from climate change are material risks for bondholders;
  • transition risks will be exacerbated the longer Australia takes to commit to a net zero emissions target and the longer it takes to implement effective measures to reach net zero;
  • not disclosing climate change risks to bond investors is misleading or deceptive under s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth).

The Commonwealth sought to strike out the claim in its entirety arguing that the applicant had failed to sufficiently articulate precisely what risks should be disclosed. Justice Murphy rejected that argument and referred to the information asymmetry between the parties.

In relation to the misleading or deceptive conduct claim, the Court found that the Statement of Claim had sufficiently articulated the nature of the dispute for the stage of the proceedings.

Under modern case management principles, the appropriate process was for the applicant to be granted access to internal government documents by way of the ‘discovery’ process. Once those documents were provided, the applicant could then further refine her claim.

The Court disagreed with the Commonwealth’s contention that it had no case to answer. Even despite the information asymmetry, for the purposes of the strike out application, it was found that the applicant had put on sufficient evidence to imply the existence of a case.

The Pleadings

Ms O’Donnell’s Fourth Further Amended Statement of Claim filed on 20 December 2022 is available here.

The Commonwealth’s Amended Defence filed on 3 March 2023 is available here.

Discovery

On 1 July 2022, the Court made orders setting out the categories for discovery to be provided by the parties. Those orders are available here.

Mediation

On 21 March 2023, the Court made orders referring the matter to mediation. Those orders are available here. Mediation took place on 11 May 2023 in Melbourne.

Settlement

On 7 August 2023, the parties informed the Court that, subject to the Court’s approval, they have agreed to settle the proceeding in terms set out in a Heads of Agreement. 

On 14 August 2023, the Applicant filed and served an application for settlement approval. 

The Notice of Proposed Settlement, including the settlement terms as agreed by the parties, is available here.

The settlement application was approved by Justice Murphy of the Federal Court of Australia on 11 October 2023. Reasons for judgment, published on 13 October 2023, are available here. 

As part of the settlement, the parties agreed to publish a statement that contains an acknowledgement that climate change is a systemic risk that may affect the value of government bonds. The statement, as published on the Department of Treasury’s website, is available here. It is also available on our website here.

Ms O’Donnell’s legal team

Ms O’Donnell was represented by Equity Generation Lawyers.

Ron Merkel KC and Thomas Wood were Ms O’Donnell’s counsel.

Photo credit: Molly Townsend

Media

The Commonwealth has lost an attempt to have a landmark case alleging it misled or deceived sovereign bonds investors by failing to disclose climate change risk thrown out, with a judge slamming its claims as “exaggerated” and having “little force”.

Court gives student OK to sue government over climate disclosure, Hannah Wootton, AFR, November 22, 2021

[The O’Donnell case] paves the way for future cases by effectively ruling that investors can make a claim for misleading conduct before corrective disclosure or harm had occurred…

Court gives student OK to sue government over climate disclosure, Hannah Wootton, AFR, November 22, 2021

[Katta is] taking on some of the most powerful individuals and institutions in the country, but her generation knows the science and knows the stakes.

Elaine Johnson, Director at EDO in Good Weekend’s 40 Australians Who Mattered: Environment, Nick O’Malley, SMH, November 27, 2020

It’s not difficult to imagine that the more debt Australia has, the more sensitive bondholders may become to risks such as climate change.

David Barnden in Good Weekend’s 40 Australians Who Mattered: Environment, Nick O’Malley, SMH, November 27, 2020

“Ms O’Donnell, 23, is leading a class-action lawsuit … that accuses the Australian government of failing to disclose the material risks of climate change to those investing in government bonds. The suit accuses the government and the treasury of breaching its duty by not disclosing the risks of global warming and their material impact on investors.

It is the first time, experts say, that such a climate change case has been brought against a sovereign nation.”

Australian Student Sues Government Over Financial Risks of Climate Change, Isabella Kwai, New York Times, 23 July 2020

“Australia is physically vulnerable to climate change, which has helped drive drought, broken temperature records and led to the bleaching of the Great Barrier reef, so the financial risks of investing in the country have raised concerns. In 2019, Sweden’s central bank said it was letting go of Western Australian and Queensland government bonds in part because the greenhouse emissions from both were too high.”

Australian Student Sues Government Over Financial Risks of Climate Change, Isabella Kwai, New York Times, 23 July 2020

“O’Donnell v Commonwealth is the first case where a national government has been sued for its lack of transparency on climate risks.”

Australian Government sued by 23-year-old Melbourne student over financial risks of climate change, Michael Slezak, ABC, 22 July 2020

“Australian government bonds are significantly more exposed to climate change than some other countries. Climate change is only getting worse and as it gets worse, then the health of the economy suffers and bondholders will suffer.”

Rob Henderson, Former NAB chief economist in Australian Government sued by 23-year-old Melbourne student over financial risks of climate change, Michael Slezak, ABC, 22 July 2020

“The litigation comes amid a global call for a “green” recovery in the wake of the novel coronavirus pandemic and as many large investment managers pledge their commitment for net zero carbon emissions by 2050 across their entire portfolio.”

Student files first climate change lawsuit against Australian government, Swati Pandey, Reuters, 22 July 2020

“The O’Donnell case could fundamentally alter the way national governments and corporations approach climate-related financial disclosures.”

Australia faces legal challenge over bonds’ climate risks, Michael Burger, Sabin Centre for Climate Change Law at Columbia University, Financial Times

“[The O’Donnell case] puts pressure on the Australian Government to improve its policies on climate change.”

Professor Jacqueline Peel in Melbourne student sues Australian Government over financial risks of climate change, ABC TV News

“I’m 23, I look to the future and I can definitely see that climate change is here and is going to get worse. It’s time the government told the public about the impact climate change will have on our future and the economy.”

Katta O’Donnell in ‘World-first’ legal case: student accuses Australia of misleading investors on climate risk, The Guardian, Wed 22 July 2020

“Australia is on the frontline of sovereign climate risk. We confront the harrowing physical impacts of drought and bushfires and we also face the financial risks of an economy over-exposed to fossil fuels being left behind as the world shifts to clean energy.”

David Barnden in ‘World-first’ legal case: student accuses Australia of misleading investors on climate risk, The Guardian, Wed 22 July 2020

“I think the government needs to stop keeping us in the dark so we can be aware of the risks that we’re all faced with.”

Katta O’Donnell in ‘World-first’ legal case: student accuses Australia of misleading investors on climate risk, The Guardian, Wed 22 July 2020

“Despite the Government not disclosing climate-related risks to its investment products, government regulators are increasingly forcing companies to disclose how climate change will impact their shareholders.”

Australian Government sued by 23-year-old Melbourne student over financial risks of climate change, Michael Slezak, ABC, 22 July 2020

“Private actors should be disclosing this to the market, so why shouldn’t public actors like the government also be doing the same, particularly if their regulators are saying other people should be doing it.

It’s a really important expansion of strategic climate litigation to a new class of defendant to further this argument that climate change is a financial risk.”

Anita Foerster in Australia Sued For Not Disclosing Climate Risk in Sovereign Debt, Bloomberg, 22 July 2020

“It’s not clear to me why already the Government is not putting those risks on the table and telling us what they’re going to do about them.”

Rob Henderson, Former NAB chief economist in Australian Government sued by 23-year-old Melbourne student over financial risks of climate change, Michael Slezak, ABC, 22 July 2020

[A] world-first lawsuit over Commonwealth bonds… 

Super fund slayer sets sights on Commonwealth bonds, Charlotte Grieve and Nick O’Malley, SMH, 11 April, 2020

Catherine Rossiter v ANZ Group Holdings Limited

About

Federal Court of Australia | NSD1315/2023

Equity Generation Lawyers represented ANZ shareholder Catherine Rossiter in an application for preliminary discovery in the Federal Court of Australia. Mrs Rossiter sought copies of ANZ’s internal risk management framework because of her concerns the bank may not be properly managing the twin risks of climate change and biodiversity loss. 

The action was filed on 9 November 2023. It was discontinued by consent with no order as to costs on 22 April 2024.

ANZ’s risk profile

Since 2016, ANZ has reportedly loaned A$18.6bn to fossil fuels. It recently increased lending to fossil fuel projects whilst its peers significantly reduced theirs.  

Analysis reveals that ANZ loaned A$2.6bn in 2022 to fossil fuel projects, up from A$2bn in 2021. In contrast, CBA significantly reduced its lending to A$267m in 2022 from A$1.3bn in 2021. 

Furthermore, ANZ and its shareholders are significantly exposed to risks stemming from biodiversity loss. ANZ reported its aggregate exposure to the agriculture, forestry, fishing and mining sectors – being those generally highly dependent on biodiversity – as A$52.1bn in 2022. 

The World Economic Forum recently recognised that biodiversity loss is among the top global risks to society; it is a systemic and financial risk, material to a number of sectors. Australia’s economy is heavily reliant on nature. Approximately half of Australia’s GDP (49.3% or A$892.8 billion) has a moderate to very high direct dependence on nature.

The basis of the claim

Experts agree that climate change and biodiversity loss are material risks to financial institutions. Material risks are those that could have a material impact, both financial and non-financial, on an institution, its depositors and its shareholders. 

Australia’s financial services laws require ANZ and other banks to properly identify and manage material risks in their risk management frameworks. Our client was concerned, based on disclosures in ANZ’s 2022 and 2023 Annual Reports, that the bank may not have been satisfying governance standards when dealing with the risks of climate change and biodiversity loss. 

Specifically, APRA’s Prudential Standard CPS-220 Risk Management requires, amongst other things, ANZ to maintain a risk management strategy, or RMS, that addresses material risks. At the time of filing our client was concerned that neither climate change nor biodiversity loss appeared to be addressed as stand-alone material risks in ANZ’s RMS, which is a board-approved document that gives effect to the organisation’s approach to managing risk. 

The practical effect of such an omission is that ANZ may have been failing to adequately measure, evaluate, monitor, control and mitigate those risks. This, in turn, could affect shareholder value through exposure to the physical and transition risks associated with climate change and biodiversity loss.

Remedy and outcome

Mrs Rossiter sought information from ANZ by way of preliminary discovery about its risk management systems to enable her to determine whether the bank’s governance systems adequately dealt with climate change and biodiversity risks. 

ANZ published its 2023 annual report on 13 November 2023. The report stated that “[o]n 9 November 2023 our Board Risk Committee approved that ‘climate risk’ will be elevated as a key material risk” (p. 29). It also noted that going forward the bank is “further strengthening our enterprise-wide approach to managing climate risk. We are working to embed this change and expect to disclose our progress in our 2024 reporting.” (p. 29). 

ANZ acknowledged the bank was “[c]ontinuing to evolve our strategy, policies, processes, products and services to seek to manage the risks and opportunities associated with climate change and nature, including biodiversity loss” (p. 8).

The parties agreed that Mrs Rossiter would discontinued the proceedings with no order as to costs, which took place on 22 April 2024. 

Shortly after this, ANZ announced that it will no longer provide project finance to new or expanded oil and gas projects, ruling out its involvement with the Papua LNG project.

Mrs Rossiter’s statement following discontinuance of her preliminary discovery application is available here.

Ms Rossiter’s legal representatives

Ms Rossiter was represented by Equity Generation Lawyers. 

Her counsel was Jane Taylor.