Climate Change and the Australian Constitution: The Case for the Ecological Limitation

Abstract

Climate change poses a serious threat to the long-term structural integrity, if not existence, of the Australian constitutional system. This means that Australian government action worsening climate change poses a threat to this constitutional system. When government action threatens this system, even in a partial or incremental manner, the High Court may derive implications from the Commonwealth Constitution (‘Constitution’) to restrain such action. This is the reasoning underpinning the Court’s establishment of implied limitations such as the Melbourne Corporation and political communication limitations. Based on this reasoning, I explore in this thesis whether a doctrinal argument can be made for deriving a new implication from the Constitution that I refer to as the ‘ecological limitation’. This limitation, if established, would restrain some forms of Commonwealth or State legislative and executive action worsening climate change in the interests of preserving the Australian constitutional system. My methodology for assessing the doctrinal merits of this proposed implication is framed by the High Court’s ‘text and structure approach’ articulated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. This interpretive approach requires implications to be derived from the text and structure of the Constitution. I supplement this approach by drawing comparisons between the ecological limitation and established implications to gain further insights on what aspects of a proposed implication may be deemed acceptable and unacceptable by the Court. Finally, I tease out the operation of the ecological limitation by considering its hypothetical application in relation to a real occurrence. Namely, I consider how the limitation might apply to restrain Queensland government approval of a proposed coal mine – the Carmichael mine currently being pursued by Adani Mining Pty Ltd. By following this methodology, I arrive at the doctrinal argument for deriving the ecological limitation outlined above and assess the doctrinal arguments against its derivation that might be raised in response (such as concerns regarding the political decision-making judges would have to engage in if the limitation is established). I conclude that a compelling doctrinal case can be made in support of the ecological limitation that can withstand these counter-arguments.