The Australian Constitution in a time of climate crisis

Abstract

The Australian Constitution, although not designed to address the exigencies of climate change, has and could have a role to play in this crisis. Expansive readings of various heads of power ensure that the Commonwealth has legislative power to achieve climate mitigation goals, notwithstanding the constitutional property rights guarantee and phenomenon of state capture. The powerful political influence of the fossil fuel industry could be challenged through s 44. Climate activists have already leveraged the Constitution to challenge a state tax on electric vehicles and an anti-protest law. Finally, recent constitutional case law has significant implications for the climate displaced people of the future.

The Australian Constitution (‘the Constitution’) was not designed to address an environmental crisis, let alone a planetary scaled, existential crisis such as climate change. In 2024, a group of eminent climate scientists described the ‘climate disaster’ as ‘a global emergency beyond any doubt’. ‘We find ourselves’, they wrote, in ‘a dire situation never before encountered in the annals of human existence’, with the ‘future of humanity [hanging] in the balance’. ¹

In the context of this crisis, the Constitution, drafted by a group of 19^th century white men of property and largely unaltered since its enactment in 1901, compares unfavourably with more progressive constitutions elsewhere. In other constitutional texts, duties to protect the environment, ² rights to a healthy environment, ³ and even rights of nature ⁴ are embedded. The Constitution has, nevertheless, featured in some of the more prominent controversies in Australian environmental history. It has been leveraged by climate activists in two recent constitutional cases.

Here I interrogate the role which this foundational text has played, might play, and should play, in a time of climate crisis. I provide a broad overview of constitutional opportunities for, and impediments to, climate action, flagging a number of fertile areas for further investigation and research.

Constitutional power to act on climate

In the 1970s and 1980s, a number of landmark constitutional decisions highlighted the scope of Commonwealth heads of power when it came to legislative intervention to prevent mining operations ⁵ and protect World Heritage properties. ⁶ The decisions, in conjunction with expansive readings of other heads of power, appeared to usher in a new age in which the Commonwealth could wield its constitutional powers in the guise of environmental protector. James Crawford concluded, in 1991, that ‘[t]he lesson of a careful study of the last fifteen years experience is that the Commonwealth has, one way or another, legislative power over most large-scale mining and environmental matters’. ⁷ This is still the case today, with the important addendum that the Commonwealth has ample legislative power to ensure that Australia achieves net zero emissions or, even more importantly, real zero emissions ⁸ by, inter alia, preventing new fossil fuel projects, halting production at existing fossil fuel projects and ending logging in the carbon sinks that are Australia’s remaining native forests.

Numerous heads of power can be utilised in this regard. For instance, the trade and commerce head of power ⁹ can be deployed by the Commonwealth to prohibit the export of coal and natural gas, thus rendering coal and gas production in Australia non-viable. ¹⁰ In the 1970s, a similar legislative prohibition on the export of mineral sands, pending the outcome of an environmental inquiry into sandmining on K’gari, was found to be within the scope of the trade and commerce head of power. ¹¹ The High Court held that a law which acts directly on the subject matter of the head of power, here the exportation of goods, is valid even though it ‘touches or affects a topic on which the Commonwealth has no power to legislate’: namely, ‘the environmental aspects of mining in Queensland’. ¹² The legislative prohibition effectively put an end to sandmining on K’gari.

Another key head of power is the external affairs head of power, ¹³ which could provide a pathway to the implementation in Australian domestic law of ratified climate treaties such as the 2015 Paris Agreement ¹⁴ and, if created and ratified, future international climate agreements such as a proposed Fossil Fuel Non-Proliferation Treaty. ¹⁵ In the Tasmanian Dam case, ¹⁶ in which Tasmania challenged the validity of Commonwealth legislation ¹⁷ to prevent the damming of the Franklin River in the Tasmanian World Heritage Wilderness area, the High Court majority held that the Commonwealth could draw upon this head of power to implement in domestic legislation its obligations under ratified treaties, irrespective of subject matter. In a later case, the Court clarified that this extends to ‘reasonably apprehended’ treaty obligations ¹⁸ – a phrase which could, conceivably, encompass obligations in draft treaties and treaties not yet ratified by Australia. The Court has made it clear that three criteria must be met: entry into the treaty must be done in good faith, ¹⁹ there must be sufficient specificity in the terms of the treaty, ²⁰ and conformity between the legislative provisions and the provisions of the treaty is required. ²¹ Subject to these criteria, however, ratified climate treaties and potentially even recommendations by international organisations ²² can thus be incorporated into Australian domestic law.

A suite of other heads of power can be utilised for the purpose of climate mitigation. These include the corporations head of power, ²³ which enables the Commonwealth to regulate all activities of constitutional corporations, ²⁴ and the implied nationhood power, which permits the Commonwealth to respond to a global fiscal emergency ²⁵ and hence, presumably, to the even more pressing imperative of a global climate emergency. Furthermore, the taxation head of power ²⁶ would support the reinstatement of a federal carbon tax; such a levy, if imposed upon the largest fossil fuel producers, could generate funding for climate adaptation. ²⁷

Impediments to climate action

Thus far, however, the Commonwealth’s constitutional powers, despite their broad ambit, have not been used effectively to address the climate crisis or, for that matter, the interrelated biodiversity and pollution crises. The current piece of Commonwealth environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), was described by Professor Graeme Samuel in his 2020 review as ‘not fit to address current or future environmental challenges’. ²⁸ Similar sentiments were expressed in the so-called Living Wonders case, in an unsuccessful challenge to the Environment Minister’s refusal to consider the climate impacts of two coalmine extensions in undertaking a risk assessment under the Act. In the appellate decision, two Federal Court judges acknowledged ‘the ill-suitedness of the present legislative scheme of the EPBC Act to the assessment of environmental threats such as climate change and global warming and their impacts’. ²⁹ The Climate Change Act 2022 (Cth), with its safeguard mechanisms, relies upon a market-based system of carbon offsets which enables corporate polluters to continue to produce emissions simply by purchasing carbon credits.

There is, in any event, a deterrent to legislative action on climate change on the part of the Commonwealth in the Constitution itself. Section 51(xxxi), the so-called property rights guarantee, mandates that any acquisition of property by the Commonwealth must be on just terms. ‘Acquisition’ for the purposes of the guarantee has been interpreted very broadly.

Newcrest Mining (WA) Ltd v Commonwealth ³⁰ is authority for the proposition that s 51(xxxi) of the Constitution would apply if the Commonwealth decommissioned, or ‘sterilised’, ³¹ fossil fuel infrastructure and coal and gas production sites through legislative land use restrictions. After the Commonwealth expanded Kakadu National Park to include Coronation Hill, and thereby extended the protective regime under the National Parks and Wildlife Conservation Act 1975 (Cth), Newcrest Mining retained title to its mining leases in the area but could no longer derive any benefit from them. The High Court majority held that an acquisition of property rights had occurred. Decommissioning fossil fuel infrastructure sites would have a similar impact. Such Commonwealth laws could be invalidated under s 51(xxxi) unless they incorporated payment of just terms compensation to mining companies.

It is possible that putting an end to fossil fuel production by less direct means, for instance by restricting exports of fossil fuels rather than by imposing land use restrictions or curtailing production, would not be viewed as acquisition of property rights. Nevertheless, there is still the chilling impact of Investor-State Dispute Settlement (ISDS) clauses in international free trade agreements to consider. These operate as an effective deterrent to regulatory control of corporate activities on the part of governments worldwide. ³² Australia is already embroiled in an ISDS case brought by billionaire Clive Palmer, after his application for a coal mining permit for the Waratah coalmine in Queensland was unsuccessful; he is seeking damages of $41 billion. According to one report, Australia is ranked fifth in the world in terms of its exposure to potential ISDS claims as a consequence of phasing out fossil fuel production. ³³

Even without such obstacles, there is little appetite for effective climate action on the part of both major political parties. The fossil fuel industry has infiltrated the corridors of power through ‘covert networks of political influence’. ³⁴ These networks rely upon well-resourced lobbyists, political donations, and the ‘revolving door’ or, as Adam Lucas designates it, ‘golden escalator’ syndrome, whereby ‘former senior bureaucrats, political staffers and ministers who [demonstrate] their loyalty and commitment while in public office’ are offered lucrative industry appointments upon retirement. ³⁵ Lucas argues that a range of policy outcomes over the last three decades, including very generous governmental subsidies for the fossil fuel industry, constitute ‘strong indicators of corporate state capture’; he has provided empirical data from research undertaken by investigative journalists and environmental and social justice advocates in support of this conclusion. ³⁶

The very real phenomenon of state capture by the fossil fuel industry raises questions about the functionality of our constitutional system of representative government, and the capacity of the Commonwealth Parliament to make decisions that prioritise the wellbeing of current and future Australians.

Representative government in a climate crisis

There is, in fact, a constitutional mechanism that could address state capture. Section 44 sets out grounds for disqualification of members of parliament. In Sykes v Cleary, ³⁷ Justice Deane stated that the purpose of the section ‘is essentially to ensure that the composition of the Parliament is appropriate for the discharge in the national interest of its functions as the legislature of a free and independent nation’. ³⁸ This suggests that s 44(i) could be invoked in the context of existing loyalties that detract from independent decision making ‘in the national interest’ on the part of our elected representatives.

In contrast to the other limbs that can be activated by foreign citizenship laws of which it seems many affected parliamentarians are unaware, the first limb of s 44(i) stipulates acknowledgment of allegiance, obedience or adherence to a foreign power. While under-litigated to date, ³⁹ this limb offers intriguing possibilities in the context of demonstrable political loyalties towards foreign Carbon Majors, ⁴⁰ such as the Indian Adani Group and Chinese-owned Yankuang Group, which play a key role in the Australian fossil fuel industry. The meaning of ‘foreign power’ might well have been confined to other nations at the time of the drafting of the Constitution but such a limited reading of the term ignores the vast economic and political power wielded by the multinational corporations of today and, in particular, by the Carbon Majors.

This limb of s 44(i) looks to ‘conduct manifesting an actual split in the allegiance of the person concerned’. ⁴¹ Ministerial approvals of fossil fuel projects owned by foreign corporations could be viewed as examples of such conduct. The downstream emissions from such projects contribute to the climate crisis which, by threatening the social order ⁴² and even the rule of law, ⁴³ jeopardise Australia’s status as a ‘free and independent nation’. Even more indicative of divided loyalties, however, are declarations of commitment to the interests of such foreign corporations. In this respect, the Opposition leader Peter Dutton’s comment in September 2024 that ‘a Dutton Coalition government will be the best friend that the mining and resources sector in Australia will ever have’ ⁴⁴ is an egregious example, given that the Australian mining and resources sector is 86 per cent foreign owned. ⁴⁵

Only the relevant House of Parliament can refer questions of incapacity to sit on the part of its members to the High Court, sitting as the Court of Disputed Returns. In Alley v Gillespie, ⁴⁶ the Court rejected the argument that ordinary Australians could take such matters to the High Court, notwithstanding the inclusion of common informer suits in the Constitution through s 46 and the subsequent introduction of legislation pursuant to that section. ⁴⁷ The teal independents and/or Greens politicians could raise, in the House of Representatives, the question of whether the leader of the Opposition is incapable of sitting as a member of parliament on the basis of his acknowledgment of allegiance to the foreign mining powers that dominate Australia’s resource sector. Yet, despite the zeal with which dual citizenship referrals of members of all political parties occurred during 2017, ⁴⁸ it is unlikely that the current Labor or indeed any government would vote in favour of such a referral given the lucrative connections with the fossil fuel industry on the part of both major political parties.

Climate activists and constitutional challenges

Direct challenges to parliamentary members of what Greens Senator Larissa Waters has described as a ‘captured petrostate’ ⁴⁹ may not be possible. Nor are the sorts of constitutional challenges which are occurring with increasing frequency in other nations, and which have already, in some notable instances, met with success. In Pakistan, ⁵⁰ Germany ⁵¹ and South Korea, ⁵² courts have found that inadequate governmental responses to climate change violate a number of constitutional rights, including the right to life. In Held v Montana, ⁵³ the first constitutional climate lawsuit to proceed to trial in the United States (US), a District Court judge ruled in 2023 that the State of Montana was in breach of its constitutional duty to guarantee a ‘clean and healthful environment’ by refusing to consider climate impacts in its assessment of new energy projects. This decision was upheld on appeal by the Montana Supreme Court in December 2024. Earlier in 2024, a groundbreaking settlement was reached in a challenge to the failure on the part of the Hawai‘i Department of Transportation to adequately protect the litigants’ constitutional right to a clean and healthy environment; the Department has agreed to decarbonise by 2045. ⁵⁴

Such challenges cannot be duplicated in Australia in the absence of a Bill of Rights and/or constitutional duties to protect the environment. There are, nevertheless, constitutional avenues which Australian climate activists can pursue, as two recent cases illustrate. Climate activists have leveraged constitutional constraints in arguing, successfully, that a state levy on electric cars and sections of an anti-protest law are unconstitutional.

In Vanderstock v Victoria, ⁵⁵ two owners of electric vehicles challenged Victorian legislation which imposed a tax on electric vehicle owners, calculated by reference to distance travelled. The High Court majority held that the state tax was an excise duty and therefore invalid, pursuant to s 90 of the Constitution which makes the power to impose excise duties exclusive to the Commonwealth. Although there was some discussion about the Commonwealth’s role in regulating greenhouse gas emissions, there is nothing in the judgments of the majority or minority judges to suggest that they were swayed by the need to remove legislative impediments to climate mitigation strategies. That is, nevertheless, the practical outcome of the decision, at least with respect to electric vehicles and state taxes. One of the litigants, Kathleen Davies, has explained her motivation for bringing the action thus:

[The tax] was an obstacle to electric vehicle uptake and we need to do all we can to de-carbonise the roads. ⁵⁶

In Kvelde v NSW, ⁵⁷ two members of the climate activist group Knitting Nannas argued that 2022 amendments to the Crimes Act 1900 (NSW), introduced in response to the activities of climate activists, constituted a disproportionate burden on the constitutional implied freedom of political communication. In the earlier case of Brown v Tasmania, ⁵⁸ the High Court had drawn upon the implied freedom to invalidate Tasmanian legislation which criminalised environmental protest in certain forestry sites. The New South Wales (NSW) legislation prohibited a wide range of protest activities in or near major facilities including ports, roads and train stations, with harsh penalties of up to two years imprisonment.

The NSW Supreme Court held that criminalising protest activities which closed part of a major facility, or caused the redirection of people attempting to use the major facility, did not meet the proportionality test established in the implied freedom of political communication jurisprudence. The Court held that these offences would have a ‘chilling effect on political communication via protests and public assemblies’, ⁵⁹ and were neither necessary nor adequate in their balance.

The NSW legislation is part of a suite of recent, draconian anti-protest laws, passed by Australian state governments and governments in other western democracies and widely condemned by human rights advocates. These laws have resulted in prison sentences for Australian and international climate activists engaged in peaceful, non-violent acts of civil disobedience. In light of the successful challenges in Kvelde and Brown, it is likely that climate activists will continue to mount constitutional challenges to other Australian anti-protest laws as and when they are charged under these laws.

Climate displacement and the Constitution

Recent constitutional decisions also have important ramifications for the climate displaced. Justice Kunc of the NSW Supreme Court has pointed out that various constitutional heads of power could be utilised in the context of climate adaptation, writing in 2018 that

[i]t is no longer either difficult or alarmist to imagine a day when, in extremis, the defence, external affairs and immigration powers of the Commonwealth are invoked to support measures not seen since World War II to deal with the social, political, economic and physical effects of climate change. ⁶⁰

In referencing immigration, he may well have been anticipating the influx of climate refugees, including refugees from neighbouring Pacific island states, who will arrive in Australia in increasing numbers as the climate crisis intensifies. Here the 2023 constitutional decision of NZYQ ⁶¹ supports the possibility of inclusion and acceptance within the Australian community for stateless climate refugees, for whom there is no possibility of return to their birthplace. Overturning a 20-year-old precedent, ⁶² the High Court in NZYQ held that asylum seekers with no real prospect of removal from Australia in the reasonably foreseeable future cannot be indefinitely detained by the executive; indefinite detention in these circumstances is viewed as punitive and therefore as an invalid exercise of judicial power on the part of the executive arm of government. ⁶³

Scholars have speculated upon the possibility of loss of statehood when sea level rises, with or without warming temperatures, render territory uninhabitable. ⁶⁴ Statelessness may ensue for displaced citizens despite one attempt, through constitutional amendment, to protect statehood in perpetuity in the event of territorial loss ⁶⁵ and other suggestions of digital or virtual deterritorialised states. ⁶⁶ After the decision in NZYQ, members of this group no longer face the ‘psychological and emotional violence’ ⁶⁷ of indefinite detention if they manage to reach Australian shores.

A 2021 constitutional decision has more ominous implications for future, internally displaced climate refugees. Climate disasters, both experienced and anticipated, are already generating movement of affected groups of people within Australia, if for no other reason than an inability to insure their property in vulnerable areas. ⁶⁸ Internal as well as external migration will radically increase over time. In his 2024 novel Juice, ⁶⁹ Australian author Tim Winton anticipates a radically hotter northwest Australia. He has described life for those living north of the 26^th parallel in a ‘dialled up’ future as ‘unbearable’ and said that ‘most Australians still don’t understand … [that] anyone who lives in the north will find themselves landless, homeless and they’ll come south’. ⁷⁰ This prediction is supported by scientific modelling; a group of scholars has estimated that the amount of global warming as a consequence of current policies will leave one third of the world’s population outside the so-called human climate niche, ⁷¹ and ‘exposed to mean annual temperatures warmer than nearly anywhere today.’ ⁷² Large-scale displacement and migration are inevitable in this scenario.

It is plausible, in the future, that southern Australian states will respond to this phenomenon with border closures to protect property, resources and their populations. Here the decision of Palmer v Western Australia ⁷³ warrants closer analysis. In that 2021 case, the High Court upheld state border closures as a proportionate response to the public health emergency of the global pandemic. Future closures of state borders may similarly be viewed as a proportionate response to the climate emergency and hence constitutionally valid, notwithstanding the guarantee of freedom of interstate intercourse in s 92 of the Constitution. As a consequence, internal climate refugees would be unable to relocate lawfully to more temperate parts of Australia.

Conclusion

In the above discussion, I have considered constitutional cases which arose as a consequence of environmental and climate activism. I have canvassed constitutional provisions and decisions which, although seemingly unrelated to environmental and climate concerns, have a broader application and potentially a role to play in the climate crisis.

The question of whether the High Court should consider the climate crisis in interpreting the Constitution is not one which has received much attention to date. ⁷⁴ Such an approach is at odds with the well-entrenched stance of legalism, as originally articulated in the Engineers case. ⁷⁵ By and large, High Court judges have refrained from contextual ruminations, sometimes explicitly. The Tasmanian Dam decision opened with a political disclaimer, in which the Court stated that it was ‘in no way concerned with the question whether it is desirable or undesirable, either on the whole or from any particular point of view, that the construction of the dam should proceed’. ⁷⁶ Margaret Thornton has described the process of constitutionalisation as requiring a ‘very high level of abstraction’, with all ‘distinctive private or subjective features … sloughed off’. ⁷⁷

Judicial reluctance to engage in overtly political and subjective decision-making is not unique to constitutional case law. The so-called political question doctrine, according to which climate mitigation policies are exclusively a matter for the political branch of government, has stymied many climate litigants. US Judge Josephine Staton, however, adopted a different approach to two majority judges who dismissed the Juliana v United States youth climate lawsuit in 2020 on the basis that the plaintiffs’ claims were non-justiciable. She held that, in light of the ‘impending point of no return’, it was the duty of the court to intervene. ⁷⁸ She concluded with the following strong indictment: ‘When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?’ ⁷⁹

Judges and other decision makers, notwithstanding moral cowardice, ignorance, professional reservations or personal gain, cannot and should not ignore the looming shadow of the climate crisis at this critical juncture in human and planetary history.