2. Constitutional Limitations to Promote Climate Action

2.1 The Absence of Environmental Protection Provisions

The Constitution contains no provisions pertaining to environmental protection. We must remember that the framers wrote the Constitution in the 1890s, before modern understandings of the environment and its fragility had developed.^[1] Indeed, James Crawford has suggested that given the philosophical and political views of the time, any environmental provision may have focused upon the ‘difficulties in “overcoming”’ Australia’s environment rather than protecting it.^[2]

This absence of environmental protection provisions is also due to the framers’ choice to adopt a political constitutionalist model with only limited legal avenues for judicial review.^[3] That is, while they opted to include narrow limitations on government power in the Constitution for the courts to enforce on environmental matters or otherwise, they focused on creating a strong democratic system where political mechanisms could curb undesirable government activity. Of course, the framers were not purists on this point. They included some limitations on Commonwealth and state powers in the Constitution, on topics ranging from freedom of religion (section 116) to printing money (section 115). The High Court has also identified certain implied limitations on government power to ensure the proper functioning of the Australian constitutional system, such as the implied freedom of political communication discussed below.

In part 2, we explore how litigants, without environmental protection provisions to rely upon, have drawn on the express and implied limitations in the Constitution to address climate and environmental concerns. As we will see, this typically requires careful thinking to reframe climate concerns to trigger the relevant limitation.^[4]

2.2 Interstate Trade (Section 92)

Section 92 of the Constitution provides that ‘trade, commerce, and intercourse among the States … shall be absolutely free’. On its face, this provision has nothing to do with environmental or climate action. However, the most significant case exploring its meaning (which was contentious for decades before this point) concerned regulations dealing with fishery conservation. Regulation 31(1)(d) of the Tasmanian Sea Fisheries Regulations 1962 prohibited any person from possessing crayfish of less than 105 mm for females and 110 mm for males to maintain breeding stock. Similar regulations in South Australia set the minimum size at 98.5 mm. David Whitfield was charged under reg 31(d) for importing crayfish from South Australia to Tasmania that met the South Australian standard but not the Tasmanian requirement. In Cole v Whitfield, he argued that the Tasmanian regulations were invalid by virtue of section 92.^[5] The High Court unanimously disagreed, holding that the regulations were not discriminatory and protectionist in character. The decision thus ensured that states could enact their own conservation regimes so long as they did not impose ‘discriminatory burdens of a protectionist kind’.^[6]

This standard was applied in Castlemaine Tooheys Ltd v South Australia.^[7] In 1975, South Australia introduced a container deposit scheme based on the polluter pays principle. The Beverage Container Act 1975 imposed a mandatory deposit of 5 cents per bottle, which would be refunded when returned. The deposit scheme did not apply to refillable bottles. In the 1980s, an interstate brewer that used non-refillable bottles began a campaign to substantially increase its market share in South Australia. In 1986, the South Australian Parliament passed an amendment to the Beverage Container Act 1975 which would make the sale of beer in non-refillable bottles commercially disadvantageous. South Australia submitted that the object of the amendment was to promote litter control and conserve energy and resources. The High Court noted that the Constitution allows a state to enact laws ‘for the well-being of the people of the State’ and accepted the legislation was directed at resolving ‘pressing social problems’.^[8] Nonetheless, the Court found that the means with which the state pursued this objective was not proportionate and thus breached the guarantee in section 92.

2.3 Implied Freedom of Political Communication

Sections 7 and 24 of the Constitution provide that the House of Representatives and Senate shall be ‘directly chosen by the people’. In two cases in 1992,^[9] the High Court drew on these provisions to uncover an implied freedom of political communication. The Court held that sections 7 and 24 require an informed choice, which necessitates access to relevant political information. The implied freedom has been described as a ‘shield’ rather than a ‘sword’.^[10] It operates as a limitation on Commonwealth and state legislative and executive power. Laws or actions that unduly burden freedom of political communication will be found unconstitutional.

Environmentalists have sought the protection of this freedom with mixed success. In Levy v Victoria,^[11] for instance, the High Court heard a challenge to regulations prohibiting access to duck hunting areas. The plaintiff argued that the regulations prevented him from entering an area to protest the practice of duck hunting to thereby ensure ‘that the people of Victoria could form informed political judgments about the position of the Victorian Government on the issues’.^[12] The Court dismissed these arguments (deeming the regulations appropriate to maintain public safety given duck hunting sites are spaces were guns are being fired) without exploring the merits of duck hunting or environmental protection more broadly.

Twenty years later, in Brown v Tasmania,^[13] the High Court considered whether a Tasmanian law prohibiting environmentalists from protesting logging at certain forestry sites impermissibly burdened the implied freedom. The Court agreed with the plaintiffs. However, while the justices recognised the link between environmental protests and political communication, the consequences of forestry on ecosystems in Tasmania were not at issue.

The recent decision of Kvelde v NSW^[14] centred on climate protesters. In April 2022, the NSW Parliament enacted amendments to the Crimes Act 1900 that made it an offence for a person to trespass on or block entry to a major facility, with a maximum penalty of two years imprisonment. This amendment was introduced after climate activists caused major traffic disruptions at Port Botany. Two members of the ‘Knitting Nannas’, a climate advocacy group, challenged the law, arguing that it impermissibly burdened the implied freedom of political communication. The NSW Supreme Court agreed. The Court held that these offences would have a ‘chilling effect on political communication via protests and public assemblies’.^[15] Brown and Kvelde demonstrate that the implied freedom can protect climate protests. This limited protection may have increased utility in the future, given the recent trend of Australian legislatures passing harsher anti-protest laws to quell acts of civil disobedience by climate protesters.^[16]

2.4 Excise Duties (Section 90)

We have noted that the Constitution distributes powers between the Commonwealth and the states. While the heads of power in section 51 are concurrent, meaning that both the Commonwealth and the states may pass laws on these matters, some powers are reserved exclusively to the national government. Section 90 is one such example. This provision prohibits states from imposing customs and excise duties.

In the recent decision of Vanderstock v Victoria, the High Court considered section 90.^[17] In this case, two owners of electric vehicles challenged s 7(1) of the Victorian Zero and Low Emission Vehicle Distance-based Charge Act 2021. The provision required owners of zero- and low-emission vehicles to pay a charge for the use of the vehicle on public roads calculated by reference to the distance travelled. The plaintiffs argued that the provision was invalid, as it imposed a duty of excise inconsistent with section 90 of the Constitution. The High Court agreed, holding that a tax on goods is an excise if it bears a close relation to the production or manufacture, sale, distribution or consumption of goods and be of such a nature as to affect demand.

The decision was seen as a victory for the climate cause. Kathleen Davies, one of the litigants, explained that she took action because she believed that the tax ‘was an obstacle to electric vehicle uptake and we need to do all we can to de-carbonise the roads’.^[18] However, while the Court noted ‘differing and evolving Commonwealth and state policies on greenhouse gas emissions’ and ‘the role of electric vehicles in contributing to the reduction of greenhouse gas emissions’,^[19] this factor played no role in its decision. Indeed, there is no restriction on the Commonwealth passing a similar law.

2.5 Acquiring Property (Section 51(xxxi))

The discussion above has demonstrated that climate advocates need to be creative when relying on constitutional law. It has also shown that the Australian Constitution can be employed to obtain results that support the goals of climate advocates. However, it is also important to note that other provisions of the Constitution might introduce additional challenges to climate mitigation and adaption endeavours.

Section 51(xxxi), for example, states that any acquisition of property by the Commonwealth must be on just terms. The Commonwealth, therefore, would need to compensate coal and gas companies if it passed legislation decommissioning mining sites — a substantial disincentive against climate action. This is illustrated by the High Court’s decision in Newcrest Mining (WA) Ltd v Commonwealth.^[20] In this case, the Commonwealth passed legislation to expand Kakadu National Park, prohibiting Newcrest Mining from exploiting its mining sites in affected areas. The High Court held that this was an ‘acquisition’ of Newcrest Mining’s property under section 51(xxxi). The Commonwealth would need to compensate the company for its loss of revenue if it prevented mining from taking place on this land.

The Australian Constitution contains no environmental protection provisions and few other limitations on government power of assistance to Australian climate litigants. While some of the most significant cases in Australian constitutional history revolve around environmental issues, the courts’ decisions do not turn on the need to protect the environment. Of course, climate advocates may still draw upon the political avenues established by the Constitution to seek stronger government action on climate change. In the final part of this chapter, we discuss the viability of these avenues and consider possible future trajectories in Australian constitutional law.