Katta O’Donnell, 23, says her claim will put government ‘on trial for misconduct’ for failing to address climate change
A Melbourne university student has launched what has been described as a world-first legal case against the Australian government, accusing it of misleading investors in sovereign bonds by failing to disclose the financial risk caused by the climate crisis.
In a claim filed in the federal court on Tuesday, Katta O’Donnell, a fifth-year law student at La Trobe University, said the government was breaching a legal duty and deceiving investors by not informing them upfront of the climate risk they face.
Climate risk refers to assessments of the expected impact of the climate crisis on investments, including the likelihood that fossil fuel investments will lose value and potentially become stranded as the world reduces greenhouse gas emissions.
The Reserve Bank of Australia and the country’s corporate and financial regulators have warned that climate change exposes the economy and financial system to risks that will get worse if action is not taken.
O’Donnell’s case, backed by David Barnden of Equity Generation Lawyers, argues that the government and its officials have failed in their duty of care by not taking climate change into account when doing their job.
The student said the case had been developed after she introduced herself to Barnden when he gave a lecture at La Trobe on climate risk last year. She said it would put the government “on trial for misconduct” for failing to deal responsibly with the climate crisis.
“I’m 23, I look to the future and I can definitely see that climate change is here and is going to get worse,” O’Donnell said. “It’s time the government told the public about the impact climate change will have on our future and the economy.”
She said young Australians owned bonds through their superannuation funds but were in the dark about government assessments of the climate risk their investment faced. Sovereign bonds are issued by governments to fund spending. Australia’s are worth more than $700bn, mostly held by central banks and pension funds.
“While the current government will be long out of power by the time we can access this money, our financial security … will bear the brunt of its climate legacy,” O’Donnell said.
Barnden said he believed it was the first case that dealt with climate change as a material risk to the global sovereign bond market. He said the risk was increasingly being recognised by institutional investors, pointing to the Swedish central bank last year selling bonds from Western Australia, Queensland and the oil-rich Canadian province of Alberta due to their failure to do more to address climate change.
“Australia is on the frontline of sovereign climate risk,” Barnden said. “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.”
He said the legal claim had been filed after he wrote to the government on O’Donnell’s behalf asking for it to change its disclosure policy. O’Donnell is also represented by the barrister and former federal court judge Ron Merkel QC.
A spokesperson for Josh Frydenberg said the Treasury was aware of the claim and Commonwealth legal representatives were considering it, but they declined to comment further on the basis court proceedings were underway.
Rob Henderson, a former National Australia Bank markets chief economist, now an economics and financial consultant, said it was a “really interesting claim”.
He said there had been a significant shift in thinking over the past decade that had accelerated after the Australian Prudential Regulation Authority warned in 2017 that it was not safe for companies to ignore climate risks. He said Australia’s major banks now all published annual climate reports and issued green bonds.
“In some ways I’m surprised this claim hasn’t been brought earlier, and the commonwealth hasn’t taken the initiative in laying out how it would do this properly,” Henderson said. “It’s an anomaly in our current financial system.”
Apra is developing a climate risk vulnerability assessment for investors based on scenarios published by the Network for Greening the Financial System, a collection of 66 central banks, including the Reserve Bank of Australia. The assessment was expected to be finished by September but has been delayed by the Covid-19 shutdown.
The scenarios included an estimate that global GDP could fall 25% below the assumed level this century if the world did not act to reduce emissions.
The Morrison government a target of a 26% to 28% cut in emissions below 2005 levels by 2030 – less than scientists say is necessary to play its part under the Paris climate agreement. It is resisting a global push to set a goal of net zero emissions by mid-century.
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