Student files first climate change lawsuit against Australian Government

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A 23-year-old Melbourne law student is suing the Australian Government for failing to disclose the risk climate change poses to Australians’ super and other safe investments.

Smoke and haze over mountains seen from an Australian air force aircraft assessing damage in the area from bushfires, in Cooma in New South Wales on 7 January, 2020.

Smoke and haze over mountains seen from an Australian air force aircraft assessing damage in the area from bushfires, in Cooma in New South Wales on 7 January, 2020. Photo: Murray Staff / Royal Australian Air Force / AFP

The world-first case filed today in the Federal Court alleges the government, as well as two government officials, failed in a duty to disclose how climate change would impact the value of government bonds.

Katta O’Donnell, the head litigant for the class action suit, said she hoped the case would change the way Australia handled climate change.

“I’m suing the government because I’m 23 [and] I think I need to be aware of the risks to my money and to the whole of society and the Australian economy,” O’Donnell said.

“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.”

Experts say it is the first case where a national government has been sued for its lack of transparency on climate risks.

Government bonds are considered the safest form of investment, with most Australians invested in them through compulsory superannuation.

Bonds are similar to shares, but instead of investing in companies, the investor lends a government money to build infrastructure and fund critical services such as health, welfare and national security.

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O’Donnell, who has invested in bonds independently from her super, said she did it to “protect her future”.

However bonds, like shares, can lose value if they become less attractive to the market. This can occur if investors question a government’s ability to repay them due to rising government debt, ethical or reputational reasons.

O’Donnell said watching the impact of bushfires in Australia made her worry about the value of her bonds.

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.

APRA – the Australian financial industry regulator – said in 2017 that climate change was not only a “foreseeable” risk, but also “material and actionable now”.

APRA is working with corporate regulator ASIC and the Reserve Bank of Australia to ensure public companies are examining climate risk, disclosing it to investors, and acting on it.

O’Donnell’s lawyer, David Barnden from Equity Generation Lawyers, said the duty to be transparent extended to the government.

“We allege that the government is misleading and deceiving investors by not telling them about the risks,” Barnden said.

“We don’t see any disclosure to investors about the risks that climate change poses to bonds and to society as a whole. So it certainly appears as though there is a double standard.”

No damages, just recognition

O’Donnell’s case names the Commonwealth, as well as the secretary to the Department of Treasury and the chief executive of the Australian Office of Financial Management – both of whom are alleged to be responsible for promoting government bonds.

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The case is a class action, with O’Donnell representing all investors and potential investors in government bonds tradeable on the Australian Securities Exchange.

It does not seek damages, but instead a declaration that the government and those two officials breached their duty.

It also seeks an injunction, forcing the government to stop promoting bonds until it updates its disclosure information to include information about Australia’s climate change risks.

The case is backed by heavy-hitting silk and former Federal Court judge Ron Merkel and barrister Thomas Wood, who was previously the counsel assisting the solicitor-general of the Commonwealth.

A spokesperson for the Australian Government Treasury said it did not comment on matters concerning current court proceedings.

Australian government bonds ‘exposed’

Most super funds have a significant portion of the public’s money invested in them, with a fixed interest rate.

But they are often also tradeable and if demand drops it could lower the value of the bonds, impacting investors, including super funds here.

Former NAB chief economist Rob Henderson said Australians needed to consider the impact of climate change.

“Australian government bonds are significantly more exposed [to climate change] than some other countries,” Henderson said.

Henderson said Australian government bonds could be impacted by physical impacts of climate change, like bushfires, which forced governments to spend money.

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Or they could be impacted by “reputational risks” of climate change, as investors around the world avoided bonds from polluting countries.

Sweden’s central bank has already divested from Western Australian government and Queensland government bonds because of climate change.

In November 2019, the deputy governor of the Swedish central bank, Martin Floden, said it was dumping those bonds, as well as bonds from the oil-rich Canadian province of Alberta.

“Australia and Canada are countries that are not known for good climate work,” he said.

The move was described by former Liberal MP Bronwyn Bishop as a form of “protectionism”.

Henderson said he was surprised a case like this had not been brought before.

“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.”

– ABC

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