The federal government’s decision to ban under-16s from social media just as they’re about to start the long summer holidays, and only a couple of weeks before Christmas, is cruel. And the significant harm that this ban will cause will be disproportionally felt by already marginalised, vulnerable youth, including LGBTIQA+ young people.

On 10 December, LGBTIQA+ youth were cut off from online spaces that have been their only source of safety and understanding, and where they can find connection and a sense of belonging.

In a misguided attempt to protect children, the Australian government has severed digital lifelines that link thousands of young people to affirming communities, support networks and mental health resources. For queer youth, rather than being a season of joy, this time will be one of isolation and loneliness.

o appreciate the potentially dire consequences of this ban, imagine a young LGBTIQA+ person in a rural or remote part of Australia, who has not yet come out to their family, or one who did bravely come out, only to face rejection by their parents. They will suffer enormous anxiety as they struggle through the festivities, unable to be themselves in their own home.

The one refuge they can turn to is social media, where they can connect with people who understand them, are like them and accept them for who they are. But now they are in a digital exile, where such connection is not available to them, and they feel a profound sense of isolation, cut off from the people who can support them and remind them that they’re not alone.

The cruelty of the social media ban is compounded by the Australian government’s conspicuous failure to invest in offline, in-person supports for LGBTIQA+ youth, leaving a gaping void where vital lifelines once existed.

While digital platforms are undoubtedly flawed, they also serve as indispensable hubs for peer connection, emotional support, self-expression and identity affirmation.

No funding has materialised for expanded youth centres, queer support services or nationwide helplines tailored to regional and rural needs. Indeed, a lack of funding has forced the mental health support group Qlife to reduce the hours when LGBTIQA+ people can call them, from 3pm to midnight, to 3-9pm.

Australia is in the grip of a moral panic about young people on social media. It’s been argued that excessive screen time, algorithmic targeting and addictive design are causing an epidemic of anxiety, depression and body image issues.

However, the evidence linking increases in poor mental health in adolescence with smart phone use is weak, and appears to be more correlative than causal. Social media may just be a convenient scapegoat, rather than the root cause of the rising rates of poor mental health.

Moral panics lead to poor policy decisions. The government, in its haste to protect children from the perceived threats that lurk on social media, has introduced a blanket ban that has been described as “rushed and reckless”.

It fails to address the complex and contested place of social media in young people’s lives, and to appreciate the vital role it plays in the lives of queer and other marginalised youths, in terms of building community, reducing social isolation and enabling self-expression.

We know from history that prohibitions don’t work; they drive behaviour underground. The social media ban is likely to attract criminal and unsavoury characters who will relish the opportunity of preying on precarious teens who are now in an online space completely devoid of rules and regulation.

We need a considered and nuanced response that regulates, rather than removes, social media from young people’s lives.

Hundreds of children die by drowning, but we don’t ban swimming. Instead, we teach kids to swim and regulate that activity to make it safer – for example, by requiring fences around pools and people to swim between flags at beaches.

A similar response is required to social media. We need to shift from protecting children from the digital world, to protecting them in the digital world.

The social media ban violates numerous human rights that are set out in the UN Convention on the Rights of the Child (CRC) – which Australia ratified in 1990) – including:

1. Right to be heard: Children have the right to express their views in all matters affecting them (Article 12). There’s no evidence that the federal government consulted youth ahead of enacting the social media ban that directly targets them, and it appears no youth were invited to co-design social media restrictions.
2. Right to information: Children have the right to receive and impart information and ideas through the media of their choice, which includes social media (Article 13).
3. Freedom of association: Young people have the right to meet and join groups, which includes association in digital environments (Article 15). The sweeping ban violates the right of young people to communicate with those people they wish to connect with and in the way in which they want to connect.
4. Right to privacy: The way that access to social media is now enforced through identity verification requires intrusive data collection and surveillance of young people, and likely violates Article 16 of the CRC.
5. Non-discrimination: The ban appears likely to disproportionately harm particular groups of children, including queer youth and other marginalised adolescents, who rely more heavily on online communities and resources. Taking away critical support and community from these children may amount to indirect discrimination under Article 2 of the CRC.

The UN committee charged with monitoring implementation of the CRC is well ahead of the Australian government, having published, in 2021, a general comment on children’s rights in the digital environment. It doesn’t appear that this important international document was considered at all by the Australian government when coming up with the idea of a blanket social media ban.

Given the plethora of problems and rights violations associated with the new social media ban for under-16s, the government must return to the drawing board.

A perfect Christmas gift to queer youth would be to engage in genuine consultation with diverse young people and co-design a rights-respecting regulatory response – one that truly improves mental health in equitable, safe ways and protects them in the digital world rather than banishing them from it.

Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

This article was originally published by Monash Lens. You can read the original article here.

Two teenagers are taking the federal government to the High Court. They argue the ban on social media accounts for under-16s is unconstitutional because it interferes with free political communication.

The ban is due to take effect on December 10. 

Will the High Court challenge make any difference?

What does the law do?

Due to a 1998 US law, social media platforms’ terms of service already set a minimum age of access of 13 years.

Australia’s new law imposes an obligation on some social media platforms to take reasonable steps to prevent users under 16 from having an account with the platform. The law does not impose obligations on under-16s themselves or on their families. This means only social media platforms can be guilty of breaking the law. 

Australia’s eSafety Commissioner has announced the law applies to Facebook, Instagram, Snapchat, Threads, TikTok, Twitch, X, YouTube, Kick and Reddit.

The practical effect is that Australians aged under 16 will not be able to have accounts on those and similar social media platforms. But under-16s will still be able to access content on those platforms if they have a logged-out functionality.

The federal government says the law’s purpose is to “enhance the online safety and wellbeing of young people”. 

The Office of Impact Analysis’ assessment of the law included a report from the Queensland Chief Health Officer stating“existing studies provide compelling indications of possible negative links between unrestrained social media usage and the cognitive, emotional, and social wellbeing of young people”. 

The analysis also noted UK and US reports about the negative impacts of social media use on young people’s wellbeing.

Australia has lots of similar laws

Lots of laws restrict young people’s access to spaces and things that sometimes have political content, to protect their wellbeing. 

Shops are banned from selling video games with certain classifications to teenagers, even though the games may have some political content. Cinemas are banned from selling tickets to movies with certain ratings to teenagers, even though the movies may have some political content. Liquor shops are banned from selling alcohol to under-18s, even though some alcohol-fuelled conversations turn political. And pubs are banned from allowing unaccompanied minors on their premises, even though there might be a bit of political banter at the bar.

So far, none of these laws has been found to be unconstitutional. However, more than one teenager has managed to circumvent these laws on occasion (as likely will also happen with the ban on social media accounts).

Who is bringing the High Court case?

The High Court case is being brought in the name of two 15-year-olds, Noah Jones and Macy Neyland. 

They are backed by a group called the Digital Freedom Project, led by NSW upper house MP John Ruddick of the Libertarian Party. So far, the Digital Freedom Project has not revealed who is giving it money.

The case will argue that the law is unconstitutional because it impermissibly burdens the implied freedom of political communication.

What is the implied freedom of political communication?

The implied freedom of political communication arises from the Australian Constitution’s requirement that parliamentarians be “chosen” by the people. Without freedom to communicate about political matters, that choice would not really be a meaningful one. 

The implied freedom of political communication is not an individual right. It is a limitation on parliament’s power to make laws. And it is not about free speech more generally. Political communication covers all matters of public and governmental affairs.

A law that burdens political communication will be invalid unless the law has a legitimate purpose and that purpose is pursued in a proportionate manner.

Does the social media account ban law burden freedom of political communication?

The plaintiffs need to persuade the High Court that the law will lead to a real reduction in political communication in Australia.

Former High Court Chief Justice Robert French said in a reportconsidering a draft South Australian law similar to the new law:

The implied freedom of political communication would not seem to be engaged. The restriction is content neutral, is not directed at political speech and, in any event, is a reasonable and proportionate means for a legitimate purpose consistent with Australia’s representative democracy.

The Digital Freedom Project’s website says the law “places a heavy burden on political communication”. This seems exaggerated. Any reduction in political communication is slight: very few 13-, 14- or 15-year-olds use social media to create or engage with political content. Those who do are doing so only occasionally.

Is the law proportionate?

It is easier for governments to justify small burdens on political communication as proportionate to a legitimate purpose than it is to justify large burdens on political communication.

The Digital Freedom Project’s website accepts the law’s purpose of protecting young people’s wellbeing is legitimate. However, they say the law “fails proportionality because less restrictive and workable alternatives exist (parental consent pathways for 14- and 15-year-olds, platform duty of care and safe design settings, targeted moderation/takedown, age-appropriate feature gating rather than bans, digital literacy programs, and privacy preserving age assurance)”.

The Office of Impact Assessment has assessed some of those ideas as likely to be less effective than requiring social media platforms to not allow under-16s to have accounts. And some of those ideas look rather like asking the High Court to invent new legislative models, which it will not do.

What happens next?

The plaintiffs are asking the High Court to issue an urgent injunction preventing the government enforcing the law until the High Court has a chance to hear the case and make a final ruling. Injunctions like that are rare.

The law is due to come into effect on December 10. Unless the High Court grants an injunction, the law will take effect as planned, even if the constitutional challenge later succeeds. 

The eSafety Commissioner’s website has a range of resources to help young people, their families and teachers get ready for the law coming into operation.

Professor Luke Beck is an Academic Member of the Castan Centre for Human Rights Law and is a Professor of Constitutional Law in the Faculty of Law at Monash University. 

This article was originally published in The Conversation. You can read the original article here.

This is the third in our series of blogs from the 2025 Annual Castan Centre for Human Rights Law Conference. Highlighting gaps in Australia’s current human rights framework, Hugh de Kretser, President of the Australian Human Rights Commission, presents a bold path toward meaningful protections for all.

You can watch Hugh’s presentation here.

Australia’s human rights record will be scrutinised at the United Nations Human Rights Council in January 2026 in a process known as the Universal Periodic Review. The review happens every 5 years and involves other nations reviewing our human rights record and recommending improvements. Australia is expected to make voluntary commitments to improve human rights as part of the review and respond to the recommendations. 

So how are we doing on human rights? We have seen progress on some issues since our last review in 2021. The implementation of the Respect@Work recommendations has seen steps forward in addressing sexual harassment and sex discrimination in workplaces. In particular, employers now have a positive duty to take proactive steps to eliminate sexual harassment and other unlawful conduct. There is progress on some of the Closing the Gap targets including early childhood education, jobs and land rights. States like Victoria and South Australia are making progress on truth telling, treaty and representative bodies for First Peoples. The Albanese Government has committed to improvements to Medicare, housing, childcare and higher education.

But Australia has gone backwards on other issues. Racism has risen after the failed Voice referendum and due to impacts of the war in the Middle East. More First Peoples are being locked up in jails due to harsh, counterproductive criminal justice polices. More First Peoples children are being removed from their families and communities because of failing child protection policies. People who arrive by boat in Australia seeking safety from persecution are still being sent offshore to the tiny island nation of Nauru. Progress on implementing the Uluru Statement from Heart has stalled at the national level and gone backwards in some states like Queensland. The age of criminal responsibility is still 10 in most jurisdictions. This means that children in grade 5 in primary school can be arrested, prosecuted and locked up.

A major focus of the upcoming Universal Periodic Review will be on the lack of an Australian Human Rights Act. While Australia has committed to protect people’s rights under international treaties, we haven’t properly translated those commitments into Australian law. Our human rights protections are patchy and our human rights safety net has holes. This affects people’s lives. 

The Australian Human Rights Commission has outlined a plan for improving people’s rights in Australia, including through an Australian Human Rights Act, more effective discrimination laws and improved human rights education. Alongside colleagues in the NGO sector, we are encouraging the Australian Government to commit to reforms like these as part of the Universal Periodic Review process.

Across my career, I’ve seen how positive changes happens. John Kingdon’s concept of “policy windows” helps explain how change occurs. Reform requires three elements to align: a clearly understood problem, a feasible solution and the political will to act. Policy windows open unpredictably. Human rights advocates must build expertise and strong, trusted relationships to seize these opportunities as they arise.

My work with the Victorian Law Reform Commission reinforced the importance of engaging with competing perspectives. If we want government or business to take up human rights reforms, we must understand the perspectives of those who oppose the reforms. We need to address those perspectives. We also need to look for compromise, common ground and consensus to make it easier for government to act.

Human rights are Australian values. Australia can and should lead the world on protecting people’s human rights and ensuring everyone in our nation has the chance to live well. To help achieve this, we need stronger human rights protections. It is time for an Australian Human Rights Act.

Hugh de Kretser is President of the Australian Human Rights Commission. This article is based on his keynote address at the 2025 Annual Castan Centre for Human Rights Law Conference.

This is the second in our series of blogs from the 2025 Annual Castan Centre for Human Rights Law Conference. George Newhouse spoke in a session on understanding human rights law in the coronial jurisdiction. You can watch George’s presentation here.

The Northern Territory Government is preparing a response to Coroner Elisabeth Armitage’s detailed inquest findings into the 2019 police shooting of Kumanjayi Walker.

The coroner made more than 30 recommendations regarding police culture, training, accountability, and community engagement, but instead of focusing on the conduct of the NT police the government has publicly flagged a major review and potential overhaul
of the Coroners Act 1993 (NT). 

Any plan to undermine the coroner is not just dangerous, it is legally regressive, morally indefensible, and in direct conflict with the lessons Australia promised to learn from the Royal Commission into Aboriginal Deaths in Custody nearly 35 years ago. 

As the lawyer representing the grieving family of Kumanjayi White (another recent death in custody), the government’s approach risks undermining the outcome of that inquest before it has even begun.

Initial responses to the Kumanjayi Walker findings and recommendations suggest that the NT government wants to turn away from the uncomfortable truths about how First Nations people are treated by institutions, like the police, that should be free from discrimination. 

We must be on guard to ensure that decades of life-saving reforms are not undone by the proposed amendments, putting lives at risk.

The Kumanjayi Walker inquest, conducted with care and thoroughness by Coroner Elisabeth Armitage, exposed deep cultural failings, operational misconduct, and embedded racism within the NT Police. It has already led to a commitment from the NT Police to implement an Anti-Racism policy but instead of committing to reform, the NT Chief Minister has responded with deflection and distraction and now suggests there is a need to review the Coroners Act.

To understand the history of the expansion of coroners’ powers in the 1990s, and why any attempt to curtail them is so dangerous, we must return to the recommendations of the Royal Commission into Aboriginal Deaths in Custody which explicitly called for post-death investigations into the circumstances surrounding a death and for comment on the quality of care, treatment, and supervision of people who died in custody. 

These reforms were not symbolic … they were essential. They ensured that coroners could act as a voice for justice, particularly for families and communities who rarely see accountability from child protection, police, health, or carceral systems.

Across the country, there are powerful examples of how coroners have used their powers responsibly to expose systemic failures and make recommendations to try to make change. 

The deaths of XY (a First Nations Child in State Care), Naomi Williams, Dougie Hampson, Veronica Nelson, Mona Lisa and Cindy Smith, and Kumanjayi Walker have illuminated patterns that would otherwise remain hidden, honoured the lives lost, and driven critical reforms in child protection, health, justice, and policing. 

The process isn’t perfect, but it is improving in many jurisdictions.

What the NT Government is proposing must not roll back three decades of institutional change – born out of the 1991 Royal Commission into Aboriginal Deaths in Custody. 

That Royal Commission made it clear: coroners should do more than identify the cause of death. They should examine the broader context of deaths in custody—failures of care, racism, medical neglect, inadequate supervision and then recommend systemic change where appropriate.

If the Northern Territory Government refuses to uphold the principles set out by the Royal Commission, then responsibility must shift. 

Fortunately, our Constitution provides a way to intervene: Section 122 gives the Federal Parliament full authority over territories. The Commonwealth can override NT laws whenever it chooses. It has done so before, such as in 1997 when it struck down the NT’s Rights of the Terminally Ill Act and when the Howard Government called the Intervention.

The Federal Government has the legal power and the duty to act if the NT seeks to silence the coroner. It should step in immediately and guarantee that coroners retain the right to investigate systemic contributors to death, including racial discrimination, health neglect, and police misconduct. 

In fact, it should go further and establish an independent First Nations led investigative body to examine and have oversight of all deaths in custody to rebuild trust with First Nations communities.

The need to intervene is particularly pertinent in response to a broader pattern of regressive and punitive legislative interventions in the Northern Territory. A suite of laws, many of which undermine human rights, including the rights of children and First Nations peoples, have already been pushed through the NT Parliament despite significant community and expert opposition. 

These include laws that disproportionately affect Aboriginal communities, raising serious concerns under both community expectations and international human rights frameworks.

It has been 33 years since the Royal Commission into Aboriginal Deaths in Custody. More than 550 Aboriginal and Torres Strait Islander people have died in custody since then. 

The NT Government’s plan could limit the examination of future deaths so that systemic issues go unchallenged. That’s a betrayal of every person lost – and every family still waiting for justice.

Australia cannot allow that to happen.

George Newhouse is the CEO of the National Justice Project and is a human rights lawyer with expertise in coronial practice.

This article was originally published in The Northern Myth. You can read the original article here.

This is the first in our series of blogs from the 2025 Annual Castan Centre for Human Rights Law Conference. Professor Paula Gerber chaired a session on challenges in securing the rights of trans and gender diverse people.

In many parts of the world, hostility towards trans and gender-diverse people is being rushed through legislative chambers, infusing court decisions and flooding social media. The trans community in Australia is waiting with bated breath to see if Australia is going to jump on this bandwagon or stand against it.

The global spike in anti-trans hostility is neither accidental nor spontaneous. Movements across the United States, the United Kingdom and parts of Europe have been mobilising for some time, and are now well-funded and adept at weaponising social anxieties for political gain. They deploy misinformation and disinformation campaigns, target education and access to healthcare, and exploit media platforms to amplify fringe theories that portray vulnerable minorities as a threat to society.

In the US, we are seeing a litany of executive orders from the White House and bills in state legislatures that are restricting access to healthcare,banning education about gender diversity, and seeking to erase trans women from both history (they have been removed from the Stonewall Monument) and contemporary society by denying their legal recognition. These political and legislative attacks are being used as entry points for wider repressive and anti-democratic moves, frequently accompanied by a surge in hate crimes. 

Australia is not immune to these global cultural currents. Indeed, we are witnessing efforts to legitimise discrimination against trans women in Australia in the case of Giggle v Tickle, the appeal of which is being heard by the full court of the Federal Court this week. The case involves the exclusion of a transgender woman from the Giggle for Girls app, a social media platform promoted as being for women only. The trial judge found that Giggle for Girls had breached the Sex Discrimination Act 1984 by discriminating against Roxanne Tickle on the basis of her gender identity.

The influence of overseas anti-trans narratives cannot be overstated. Some Australian media outlets are recycling imported “culture war” tropes, platforming misinformation and manufactured outrage over topics such as youth healthcare and women’s spaces, despite local experts citing evidence-based research supporting gender-affirming care for trans and gender-diverse youth and that trans women are more likely to be the victims of violence rather than the perpetrators of violence.

ustralia has robust anti-discrimination laws at both federal and state levels, protecting individuals against discrimination, vilification and hate. In 2013, the Sex Discrimination Act 1984 (Cth) was amended to prohibit discrimination based on gender identity and sexual orientation, which makes our laws very different from the UK Equality Act 2010.

This means we are not at risk of judgments like the UK Supreme Court decision in For Women Scotland v The Scottish Ministers. The court in that case ruled that in the UK legislation, the terms “sex”, “man” and “woman” refer exclusively to “biological sex”, which they said “describe[s] the sex of a person at birth”. The decision was roundly criticised, including by doctors at the British Medical Association, who described the court’s decision as “scientifically illiterate”.

However, Australia cannot avoid being subject to certain global developments, including decisions from international sporting bodies relating to women’s events. Some of these are so ridiculous, they border on the absurd.

For example, no-one has yet provided a plausible explanation for why the International Chess Federation has banned trans women from competing in women’s chess tournaments. Chromosomes and hormones would seem to provide no physical advantage in a game of chess. Given there appear to be only five trans women competing in international chess tournaments — with the French player, Yosha Iglesias, in 5,425th place, being the highest-ranked trans player in the female category — the decision appears more about bigotry than protecting cis women players.

Anti-trans hate thrives in environments where misinformation is allowed to circulate unchecked, and where the lived experiences of trans people are not reflected or respected in policy, education or public life. To ensure that Australia does not allow trans hate to take hold here, there are several steps we must take.

First, Australian politicians, leaders and public figures must vocally reject anti-trans rhetoric and denounce disinformation and fearmongering. Second, we must hold media outlets — including social media platforms — to account when they amplify harmful disinformation. Third, we must facilitate the provision of comprehensive, age-appropriate education on gender diversity, in schools, as we know that early education dramatically reduces prejudice. Such education must include digital literacy, so all Australians can recognise and resist imported toxic narratives. And finally, Australia must enact a federal Human Rights Act as recommended last year by the Parliamentary Joint Committee on Human Rights.

Australians have shown that they have little appetite for anti-trans ideology. A poll conducted earlier this year found 91% of Australians agree or strongly agree that trans people should have the freedom and choice to live their lives in the way that makes them happy, 81% agree that trans people deserve the same rights and protections as other Australians, and 89% agree that the trans community deserves to live with dignity and respect.

These numbers indicate that the wave of anti-trans hate is not an inevitable fate but rather an ideology whose spread can be checked by vigilance, respect for human rights and evidence-based policies and laws. By strengthening our social fabric, fortifying legal protections, insisting on principled media, and ensuring inclusive and respectful education, Australia can be a world leader in not only resisting hate, but also in celebrating inclusiveness and diversity.

Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.

This article was originally published by Crikey. You can read the original article here.

According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), climate change poses an existential threat to the effective enjoyment of a wide range of human rights, including those to life, water, food and sanitation, health, housing, self-determination, culture and development.  Yet, the adverse impacts of climate change are not limited to those rights but extend to ocean acidification, ocean warming, biodiversity loss, floods, droughts, state extinction, water pollution, hurricanes, and storms, among others.

On 12 April 2023, the UN General Assembly requested the ICJ to clarify the obligations of States regarding the protection of the climate system. This request also asked the Court to determine the legal consequences resulting from the breach of states’ obligations regarding climate change. In response to this question, the ICJ examined various aspects of the pressing issues of climate change, including the impacts of the anthropogenic greenhouse gas emissions on the oceans and the enjoyment of human rights. 

On 23 July 2025, the International Court of Justice (ICJ) delivered its highly anticipated advisory opinion on climate change. The Court unanimously held that states have human rights obligations in respect of the adverse impacts of climate change. Failure to comply these obligations, the ICJ held, can engage State responsibility.

The UN Secretary-General António Guterres described the ICJ’s decision as a ‘victory for our planet’, which paves the way for further climate action. What follows examines the most significant contributions of the World Court to addressing the pressing issue of climate change. 

Is Climate Science Admissible as Evidence Before the World Court? The ICJ’s Findings on the Scientific Aspects of Climate Law 

The ICJ recognized the scientific evidence of the adverse impacts of climate change on the enjoyment of human rights and the oceans. Relying on the reports of the International Panel on Climate Change (IPCC), the Court recognized that ‘…the consequences of climate change are severe and far-reaching; they affect both natural ecosystems and human populations.…’. These consequences, According to the Court : “…underscore the urgent and existential threat posed by climate change”. Based on the reports of the IPCC, the ICJ found that limiting warming to 1.5 degrees above the pre-industrial level has become the scientifically based consensus target under the Paris Agreement.  

Mitigation and Adaptation Obligation  

Are Nationally Determined Contributions (NDCs) voluntary and discretionary? 

In its advisory opinion, the ICJ interpreted the mitigation and adaptation obligations of State parties to the UNFCCC and the Paris Agreement in light of the customary obligation to prevent harm to the environment. 

During the ICJ written proceedings, some high-emitting states, such as the United States, requested that the Court limit its Opinion to climate treaties, arguing that treaties like the UNFCCC and the Paris Agreement constitute the sole basis for states’ obligations regarding the climate system. In their view, mitigation obligations should not be interpreted beyond the climate treaty obligations. However, the ICJ rejected their view and found that climate treaties must be interpreted in light of the customary obligations of States, namely the duty to prevent significant harm to the climate system. The Court observed that the determination of the ‘significant harm to the climate system’ must be assessed based on the best available science.

One of the contributions of the ICJ advisory opinion is its interpretation of the Nationally Determined Contributions (NDCs). Nationally Determined Contributions (NDCs) are climate action plans that each country creates under the Paris Agreement. They show how the country will reduce its GHG emissions. Each country decides its own goals based on what it can do, and updates the plan every five years to make it stronger.

To understand the Court’s contribution, it is noteworthy that some participants, such as the US, requested the ICJ to identify the NDCs as voluntary and discretionary commitments. However, the Court rejected this view and held that the NDCs must not be interpreted as entirely ‘discretionary’ and that States have a due diligence obligation to do their utmost and realize the objectives of the Paris Agreement , including the goal of a 1.5 °C temperature rise by implementing their NDCs. In this regard, the Court observed that the standard of due diligence to be applied in preparing the NDCs is stringent, because the threat posed by climate change is serious and irreversible.

Regulating the Conduct of Private Actors and Corporations Responsible for GHG Emissions 

GHG emissions can result from the activities of corporations, such as oil and gas companies. Therefore, it is necessary to regulate corporations’ conduct that produces GHG emissions. In its advisory opinion, the World Court emphasized the due diligence character of the mitigation obligations. The Court observed that states have an obligation to regulate the activities of private actors as a matter of due diligence.

Are States that Are Not Parties to Climate Treaties Still Responsible for the Harm to the Environment?

According to the ICJ, the non-party states to climate treaties have still responsibility to protect the climate system, as they must prevent significant harm to the climate system according to principles of customary international law, namely the obligation to prevent significant harm to the environment. Accordingly, these states can be held accountable for environmental harm, even if specific treaty obligations do not bind them.

On 20 January 2025, the United States withdrew from the Paris Agreement. The Court’s decision means that the Paris Agreement quitters are not safe and can be held accountable for their inaction. 

UNCLOS and Climate Change: Obligations of States to protect the Marine Environment from GHG emissions 

In recognizing the adverse impacts of climate change on the oceans, the ICJ stated that GHG emissions constitute the pollution of the marine environment within the framework of the United Nations on the Law of the Sea (UNCLOS). To the view of the ICJ, states parties to the UNCLOS have an obligation under Article 194, paragraph 1, of UNCLOS to take all necessary measures to reduce and control pollution resulting from the GHG emissions. 

In examining the obligations of states to protect the marine environment, the ICJ has also drawn upon the jurisprudence of other international courts and Tribunals, including the Advisory opinion of the International Tribunal for the Law of the Sea (ITLOS) on climate change.

The Adverse Impacts of Climate Change on the Enjoyment of Human Rights 

Is Human Rights law Applicable to the Question of Climate Change? 

During the ICJ proceedings on climate change, some States argued that human rights law does not apply to the question of anthropogenic climate change emissions, because human rights conventions do not specifically address the issue of climate change. For instance, Australia argued before the ICJ that human rights instruments are not directly applicable to climate change, because they do not contain any express obligations in this regard. But, the ICJ rejected their view and stated that “the core human rights treaties, including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, adopted in 1966, and the human rights recognized under customary international law form part of the most directly relevant applicable law”. 

Right to a Clean, Healthy and Sustainable Development 

In recognizing the applicability of human rights law to the question of climate change, the Court observed that ‘a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights, such as the right to life, the right to health and the right to an adequate standard of living, including access to water, food and housing’. 

Taking Climate Obligations Seriously: Erga omnes character of the human rights obligations in respect of Climate Change 

According to the ICJ, human rights obligations in respect of climate change have an Erga omnes character, as they pertain to the common concerns of humankind. According to the Court, that all States have a common interest in the protection of global environmental commons such the atmosphere and the high seas.

Can Countries sue Each Other? The Legal Consequences Resulting from the Harm to the Climate System  

The ICJ stated that a breach of mitigation or adaptation obligations may constitute an internationally wrongful act, giving rise to state responsibility. States that have violated their mitigation obligation have a responsibility to cease and to provide assurances of non-repetition. Notably, the World Court held that responsible states may be required to pay full reparation to injured States in the form of restitution, compensation and satisfaction, provided that a sufficiently direct and certain causal nexus can be established between the wrongful act and the injury.

Conclusion

The ICJ advisory opinion is regarded as an authoritative interpretation, clarifying the obligations of states in respect of climate system. This opinion is characterized as a significant decision that has brought clarity and predictability to the obligations of states in respect of climate system, which is essential for states and private actors transitioning toward carbon neutrality. Furthermore, the Court’s decision could assist national courts in interpreting domestic climate laws and constitutional principles.

Mohammadhossein Latifian is a PhD candidate at Monash Law School. His research, titled “How Interpretation Shapes International Climate Law: On Semantic Innovations in the Anthropocene“, examines the role of international climate litigation in shaping the evolution of climate law.

The Federal Court of Australia has handed down its highly anticipated judgment in the Australian Climate Case, a four-year climate case brought by Torres Strait Islanders against the Commonwealth. 

Torres Strait Island Elders Uncle Pabai Pabai and Uncle Paul Kabai sued the Commonwealth on behalf of their community, arguing that the Commonwealth has a duty of care to protect Torres Strait Islanders from climate change. They argued both that the Commonwealth owed this duty when setting national emissions reduction targets, as well as a duty to protect property, Ailan Kastom (distinctive customary culture of the Torres Strait Island peoples), and the health and life of Torres Strait Islanders from climate impacts. The case was primarily funded by the Grata Fund, Australia’s first specialist non-profit strategic litigation incubator and funder. 

The case had the potential to be a landmark moment in Australian legal history and the culmination of a groundswell that emerges from the Urgenda Case decided by the Supreme Court of the Netherlands in 2015, in which the Dutch Government was held to have a duty to protect people from climate harms. 

But it was not to be. Justice Michael Wigney found that the applicants’ primary and secondary case in negligence failed. And so we are left once again asking: what will it take for a legal duty of the Commonwealth government to protect people from climate harms be recognised? 

The case against the Commonwealth

The applicants’ primary case was that the Commonwealth owes a duty of care in negligence to protect Torres Strait Islanders, their traditional way of life, and the Torres Strait and its marine environment, from the current and projected impacts of climate change. The applicants argued that the Commonwealth was required to fulfil that duty of care by taking reasonable steps to ensure that, after considering the best available science, it identified greenhouse gas emissions reduction targets which would prevent or minimise the current and protected impacts of climate change on the Torres Strait and implement measures necessary to reduce Australia’s emissions consistent with those targets. In this regard, the applicants argued that the Commonwealth’s setting of emissions reduction targets in 2015, 2020, 2021, and 2022 failed to meet this standard of care and therefore breached the duty owed to the Torres Strait Islanders. In essence, they argued that the Commonwealth did not give any real or genuine consideration to the best available science in setting the emissions reduction targets to a level consistent with holding the increase in global average temperature to 1.5 degrees celsius above pre-industrial levels. The applicants claimed that the damage flowing from this alleged breach was primarily the loss of fulfilment of Ailan Kastom, including damage to sacred sites and burial grounds of their ancestors such they they were no longer able to engage in many of their traditional ceremonies and customs and life-sustaining activities like hunting, gathering, and gardening. Thus, they claimed that climate change had effectively severed key aspects of their connection with their traditional lands and seas. 

The applicants’ secondary case alleged that the Commonwealth owed a duty to Torres Strait Islanders to take reasonable care to avoid causing property damage, loss of fulfilment of Ailan Kastom, and injury arising from a failure to adequately implement adaptation measures to prevent or minimise the current and protected impacts of climate change on the Torres Strait Islands. This argument concerned the funding of the Seawalls Project which involved the planned construction of seawalls on the islands of Sabai, Boigu, Pruma, Iama, Masig and Warraber. This project was jointly funded by the Commonwealth and Queensland governments. The applicants argued that this duty of care was to take reasonable steps to (a) provide predictable funding, including additional funding as required, which was sufficient to construct seawalls on the islands; and (b) to lead, coordinate, and establish a coherent plan for the provision of funding to protect the Torres Strait Islanders from sea level rise, inundation, and erosion through the construction of the seawalls. While some funding was obtained from the Commonwealth, the applicants alleged that the Commonwealth breached its duty of care in respect of the adaptation measures because the funding was delayed, unpredictable, and inadequate. This alleged breach also caused them to suffer loss of fulfilment of Ailan Kastom. 

The Court’s decision 

On the applicants’ primary case, the Court found that the applicants had established the factual allegations that underpinned this case, including that the Commonwealth identified and set emissions reduction targets in 2015, 2020, and 2021 it failed to engage with or give any real or genuine consideration to what the best available science indicated was required for Australia to adequately reduce its emissions. They were inconsistent with the sort of action Australia needed to take to keep Australia’s temperature rise within 1.5 degrees celsius of pre-industrial levels. However, this was not the case when emissions reduction targets were set in 2022, in which the Commonwealth did have regard to the best available scientific evidence (although it may not have gone as far as some climate scientists would have advocated).

Further, the Court found that the Torres Strait Islanders have already and continue to be ravaged by climate change. This included flooding and inundation of townships, extreme sea level rise and weather events, severe erosion, the salination of wetlands and previously arable land, among other things. These impacts undoubtedly have and will have a significantly adverse impact on the traditional way of life for Torres Strait Islanders, and have resulted in the Torres Strait Islanders suffering loss of fulfilment of Ailan Kastom.  As Justice Wigney starkly warned in his judgment summary:

Unless something is done to arrest global warming and the resulting escalating impacts of climate change, there is a very real risk that the applicants’ worst fears will be realised and that they will lose their islands, their culture and their way of life and will become, as it were, climate refugees. That would, of course, be a devastating outcome.

Nevertheless, the Court held that it was not open to recognise a duty of care in the way contended by the applicants. Key to this decision was the highly political nature of the setting of emissions reductions targets which are core matters of government policy, the reasonableness of inadequateness of which is not suitable to be subject to common law duties of care.

Even if a duty could be established, the Court held that the standard of care would not be one that required the Commonwealth solely to set the targets on the basis of the best available scientific evidence. The Court found that these are decisions which involve the making of policy and political decisions, such that it would not necessarily be unreasonable for a responsible government in the position of the Commonwealth to have regard not only to the best available science, but also to broader economic, social and political considerations. Additionally, it was held that the applicants had failed to make out that the impact from the failure to adequately set emissions reduction targets consistent with the best available scientific evidence in 2015, 2020 and 2021 had materially contributed to any harm that has or was being suffered by the Torres Strait Islanders because Australia’s emissions (while still large) were a relatively small proportion of global greenhouse gas emissions. In the words of Justice Wigney: 

the Commonwealth’s ability to set emissions reduction targets does not give it any materially relevant control in respect of the risk of harm to Torres Strait Islanders from the impacts of climate change. Climate change is a global problem with global causes which require global solutions.

Ultimately, Justice Wigney found that the applicants’ primary case against the Commonwealth failed ‘not so much because there was no merit in their factual allegations concerning the Commonwealth’s emissions reductions targets’ but because ‘the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims’. The common law of negligence in Australia was particularly considered by Justice Wigney to be ‘an unsuitable vehicle through which the applicants could obtain relief’. This, he held, ‘will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellate courts, or by the enactment of legislation’. Until such a time, ‘the only recourse that those in the position of the applicants and other Torres Strait Islanders have is recourse via the ballot box’.

In other words, the Court could not have concluded otherwise on the current state of Australian law. 

The applicants’ secondary case failed for similar reasons. In particular, it was held that the funding decisions concerning the Seawall Project were core matters of governmental policy which could not properly be subjected to common law duties of care. Further, the inadequacy of the funding was largely as a result of cost overruns and the administration of the project by local Torres Strait Island authorities rather than a failure on the part of the Commonwealth. 

So where to now? 

We seem once again to find ourselves in the position of having taken one step forward (a recognition that the applicants had made out many of the factual matters of their primary case) but two steps back (a firm recognition that the common law of negligence is an unsuitable vehicle to respond to climate harms). How then can the law respond? 

It seems that the recognition of the inherently political and policy decisions of Australia’s greenhouse gas targets is one to stay.  The Court’s comments about the Torres Strait Islanders having only political recourse through the ballot box to challenge such decisions call to mind the Full Federal Court’s comments in overturning the recognition of a duty of care owed by the Commonwealth Minister for the Environment when granting authorities for a coal mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in the Sharma Case. There, the former Chief Justice of the Federal Court held that   ‘[t]o the extent that the evidence and the uncontested risks of climate catastrophe call forth a duty of the Minister or the [Australian Government to act], it is a political duty: to the people of Australia’.  Thus, ‘[c]llimate (in)action is political … and courts should leave such policy-making to politicians’. 

The Australian Climate Case therefore exposes the results of a failure to adequately entrench human rights in domestic law, which leads Australia in a diametrically opposed direction to the Urgenda Case in the Netherlands which based its landmark decision on the human rights obligations of the Dutch government flowing from the European Convention on Human Rights. Where human rights considerations have been at the centre of legal decisions on matters concerning climate change harm, we have seen a greater appetite for the law to respond. 

For example, when a group of Torres Strait Islanders brought an individual communication to the United Nations Human Rights Committee arguing that Australia had filed to fulfil its legal obligations to protect the Torres Strait Islanders right to life, their right to private life, and their right to culture under the International Covenant on Civil and Political Rights, the Human Rights Committee were able to find that Australia had violated the Torres Strait Islanders’ right to private life, home and family and their right to enjoyment of culture through Australia’s inadequate response to the alarming threats that had been raised by Torres Strait Islanders since the 1990s as a result of climate change. The Committee also found that. The right to life includes the need to protect against ‘reasonably foreseeable threats…that can result in loss of life’, and this ‘may include adverse climate change impacts’ which amount to ‘some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’.

On an international level, we also await the International Court of Justice’s advisory opinion on the Obligations of States in Respect of Climate Change which is due to be handed down on 23 July 2025.

Domestically, we have also seen the legislated human rights instruments enacted in the Australian Capital Territory, Victoria and Queensland respond to climate change harms in a way that more traditional forms of law seem unable to do. For example, in its advisory opinion under Queensland’s environmental laws, the Queensland Land Court has held that the approval of a coal mine in the Galilee Basin, would breach the human rights of Queenslanders. Among other rights, it would breach the right to life by the project’s ‘material contribution to the life-threatening conditions of climate change (and associated economic and social costs)’ as well as the cultural rights of Aboriginal and Torres Strait Islanders peoples in a disproportionate way through the existential threat posed to Torres Strait Islanders and the erosion of traditional customs. 

We have also seen promising moves in the Australian Capital Territory to include a right to a healthy environment in its Human Rights Act. While less immediately enforceable than other rights, it requires public authorities in the Territory to give proper consideration to and act in compliance with the right to a healthy environment when making decisions. 

It is high time that the Commonwealth enacted broader stand-alone legislated human rights protection at a Federal level, including a right to a healthy environment. The Federal Parliamentary Joint Committee on Human Rights recommended the enactment of such legislation back in May last year. But, this proposal has not  yet received official support from the Government, despite a majority in the Parliament to be able to pass such legislation. Perhaps it is this bolder human rights reform that might finally see some measure of climate justice in Australia.

Join us for the Annual Castan Centre for Human Rights Law Conference on Friday, 25 July 2025 where we will have a panel on New Challenges in Climate Change Litigation and Human Rights. Bringing together interrelated perspectives, this panel will examine the role of lawyers and courts in advancing climate action, recent developments in climate litigation, and the importance of community advocacy. You’ll have the chance to hear from Isabelle Reinecke (Executive Director and Founder of the Grata Fund, which funded the Australian Climate Case), Professor Steven Vaughan (Dean, Faculty of Law, Monash University) and Sr Bridig Arthur (social justice advocate and litigation guardian in the Sharma Case). Get your tickets now so you don’t miss out! Get more information and register here.

Scott Walker is a Research Fellow at the Castan Centre for Human Rights Law. 

Professor Melissa Castan is the Director of the Castan Centre for Human Rights Law and Professor of Law in the Faculty of Law at Monash University.

Opposition Leader Peter Dutton has floated the idea of amending the Australian Constitution to allow government ministers to strip dual citizens of their Australian citizenship if they commit serious crimes related to terrorism.

Almost immediately, Dutton’s coalition colleague and Shadow Attorney-General Michaelia Cash walked back the idea, saying the Coalition had “no plan” for a referendum.

Dual citizens can already lose their Australian citizenship if they commit terrorism offences. 

So what does the Constitution say about the issue?

Citizenship cessation

Under the Australian Citizenship Act, there are three main ways an Australian citizen can cease their Australian citizenship.

First, a dual citizen can voluntarily renounce their Australian citizenship. Some people choose to do this if they move overseas and don’t intend to return to Australia.

Second, the government can revoke a dual citizen’s Australian citizenship if they obtained it by fraud. The logic here is that the person was never really eligible for Australian citizenship in the first place.

Third, and most seriously, a court can – if the government asks it to – strip a dual citizen of their Australian citizenship as part of the sentencing process for serious crimes such as terrorism and foreign incursions. 

In deciding whether to impose this punishment, the court must be satisfied the person’s crime was “so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia”.

In other words, dual citizen terrorists can already lose their Australian citizenship.

What does the Constitution say?

Federal parliament can make laws only on certain subject matters, as listed in the Constitution. One of those subject matters is “naturalisation and aliens”. 

In a 2022 case called Alexander, the High Court confirmed the naturalisation and aliens power allows the federal parliament to pass laws taking away a person’s citizenship if the person has done something that shows they had repudiated their allegiance to Australia. 

That case concerned an Australian-Turkish dual citizen who travelled to Syria to fight with the Islamic State militant group. That kind of voluntary conduct clearly repudiates allegiance to Australia.

But to be valid, a federal law must not only fall under one of the listed subject matters such as “naturalisation and aliens”, it also must not breach any limitation on the federal parliament’s power.

An important limitation on the federal parliament’s lawmaking power is keeping federal judicial power separate from the power of the parliament and the executive. This is called the “separation of powers”.

The separation of federal judicial power is an important constitutional concept. The idea is that it prevents the parliament or government ministers interfering in the role of the courts or usurping the role of the courts. 

Attempts at legislation

Only courts can exercise federal judicial power. Judicial power includes things like imposing punishments on people for criminal conduct. This is where past citizenship stripping laws have run into trouble.

The problem with the law in the Alexander case was that it allowed a government minister to take away the terrorist’s Australian citizenship, rather than a court, and even if the person had not been first convicted by a court. 

So while the High Court ruled the parliament could legislate under the aliens power, it found ministers cannot decide guilt or punishment.

The government thought the problem with the law was simply the lack of criminal conviction. So the parliament passed a new law allowing a government minister to strip dual citizen terrorists of their Australian citizenship, but only if they had first been convicted by a court. 

But the High Court struck down that law in a 2023 case called Benbrika.

Benbrika had been convicted of terrorism offences in the courts, then a government minister made an order taking away his citizenship. 

The problem with the law, the High Court said, was that a government minister was imposing a punishment. Only courts can impose punishment under the separation of powers.

So in response to that decision, the federal parliament passed another law. This time the new law allowed the courts to strip a dual citizen of their Australian citizenship as a punishment as part of the sentencing process for serious crimes like terrorism. 

This is the law that’s currently in place. It avoids the separation of powers issue. There is no constitutional problem with courts imposing punishment for crimes.

So what does Peter Dutton want to do?

Peter Dutton’s comments suggest he wants government ministers – rather than courts – to impose the punishment of removing citizenship. He hasn’t said why or what purpose this would serve, apart from “keeping our country safe”. 

The only way to allow federal ministers to impose punishments is to change the Constitution through a referendum that inserts a new provision overriding separation of powers rules.

Given Australia’s long history of defeated referendums, such a vote is unlikely to succeed. 

That’s if it makes it out of the gate. Reported tensions within the Liberal party suggest it may not get off the ground to become official Coalition policy.

Professor Luke Beck is an Academic Member of the Castan Centre for Human Rights Law and is a Professor of Constitutional Law within the Faculty of Law at Monash University.

This article is published from The Conversation under a Creative Commons Licence. Read the original article here.