2. How Australian Public Law Shapes the Sites and Conceptions of Climate Action

Public law is concerned with the empowerment and constraint of the institutions that exercise State power:

• It establishes and empowers institutions within a State responsible for governing in the public interest and implementing policy responses to social, economic and environment problems, and it delineates the relationships between these institutions.
• It restrains those institutions by making sure they are exercising their powers within legal limits and institutional competence.^[1]

Australian public law shapes the sites of climate action and how climate action is conceived through two particular features. The first is its reflection of liberal democratic traditions. At the core of these broad traditions are three key principles:

• The principle of democratic government in the sense of government by the people, which is usually institutionalised through representative government based on regular elections.
• The principle of limited government, which is institutionalised through legal limits on State power (the rule of law and an independent judiciary) and distribution of power amongst different institutions with accompanying checks and balances (separation of powers, federalism).
• The principle of individual liberties, with emphasis on the protection of the individual against the State (freedom from State power) and priority given to civil and political rights (with each considered vital for human flourishing as well as democratic government).

A subterranean premise of the third principle is the significance ascribed to private property rights. This significance can be traced to abiding tenets of liberal philosophy as well as the deep intertwining of liberalism with capitalism, a mode of production based on private property rights.^[2]

The second feature is Australian public law’s particular blend of legal constitutionalism, where constitutional norms and principles are given effect through legal processes (including judicial review), and political constitutionalism, where political processes predominate (including accountability of the executive to the legislature and elections for members of the legislature). The Australian system relies heavily on political constitutionalism; for instance, the framers of the Commonwealth Constitution believed that the protection of liberties was best secured not through a constitutional Bill of Rights but through the processes of representative government. This reliance has important consequences for the sites and conceptions of climate action.

The constraints of power placed by Australian public law on the possible sites of climate action have not proven to be hindrances to effective climate action where the political will exists. That Australia is a climate laggard has not resulted from lack of State power.

The federal nature of the Australian State means that State power is allocated vertically between the states (as regional governments) and the Commonwealth (as the federal government), with local governments also playing a role. As we elaborate later, all levels of government have power in relation to climate action — they are all sites of climate action. While the Commonwealth has constitutional primacy, the states and local government are also sites with ample power for climate action.

Australian public law also distributes power horizontally among the three branches of government (executive, legislature and the judiciary). Reflecting its liberal democratic roots and reliance on political over legal constitutionalism, Australia’s public law system treats responses to climate change and environmental protection largely as a policy issue within the public law system. This means that climate action is principally viewed as the province of the executive and the legislature and not of the judiciary. Unlike many countries with more recently designed public law systems, Australian public law does not directly address the government’s obligations in relation to the environment or, more specifically, to address climate change; nor does it provide for express limits or rights relating to environmental justice.

This has two major consequences. First, in terms of the institutional division of labour. Climate action is to be mainly determined by the political actors in the legislatures and executive, accountable through elections. While legal frameworks are enforceable in the courts, there has (thus far) proven to be little leeway for the development of disruptive climate-change responsive judicial doctrine. The effect is that executives and legislatures at various levels of government are the main institutions where climate action is directed, not the courts. The dominant context of political constitutionalism brings to the fore the system of representative government under Australian public law. Conversely, the rule of law as a principle of Australian public law has had an attenuated role in the climate crisis.

Second, apparent agnosticism towards the ends of climate action combines with an acute risk of a structural bias towards narrow interests. Elections by design place the power to decide in the hands of the voters; under the Australian electoral system, voters who determine the composition of the lower house will also decide which party forms government. Danger arises when voter preferences are reduced to highly localised — even individualistic — considerations with no or peripheral engagement with wider societal interests. This strongly risks the framing of the climate debate in terms of the self-interests of voters, and in particular, voters in marginal seats. This overlooks the national geography of the climate crisis, as well as the intergenerational nature of it.

These dynamics can be contrasted with many Indigenous systems of governance, where the individual is placed in the context of responsibilities to the collective, and individual and collective responsibilities (as opposed to rights) to the land and the wider environment are often centred. Another contrast is with constitutions which impose duties on citizens to protect the environment for present and future generations, expressly at times as trustees.

Bound up with conceiving climate action as a policy issue is to not view it as a matter of public law. Like a frame that disappears from the view, the deep connection between climate action and public law is submerged, with the impact of public law on climate action not recognised and its significance for progressing the climate agenda not realised.

Another way Australian public law distorts thinking about climate action is through the public/private distinction it assumes. Consonant with liberal democratic principles of limited government and individual liberties, this distinction conventionally establishes mutually exclusive areas of law where private law regulates the interactions of individuals (a horizontal relationship among legal equals) and public law regulates the relationship between the State and individuals (a vertical or hierarchical relationship between rulers and ruled). This understanding posits the public sphere as the domain of politics and the State, just as public law is the law which governs the State. The private sphere comprises the supposedly apolitical, non-State domains of the economy and the family, just as private law is the law governing economic and familial relationships among individuals. The underlying assumption is that these spheres are governed by different principles. In this view, public law principles such as representative government and the rule of law do not apply to the private sphere and private law, among others, because the latter are not seen as political and/or involving the exercise of power.^[3]

These understandings can have the effect of naturalising capitalism and its underlying system of private property rights. As part of the economy, both are considered to be in the private sphere: outside of State power — indeed, not involving the exercise of power at all — and exempt from public law principles.

This highly problematic distinction is increasingly apparent in the case of climate action. Care for the environment — and the flow-on effects for the climate and people — can be seen as both a public and a private matter in Australian public law; the traditional distinction between public and private obscures the complexity of State and individual responsibility needed for effective climate responses.^[4] The traditional public/private law division, combined with liberal democratic concern for the protection of private property rights, has meant that environmental care and degradation has generally been considered a private matter. This, however, overlooks the importance of public law in this space. As a matter of public law, precious metals, coal, petroleum and mineral resources are the property of the Crown (under our federal system, the state crowns). Those seeking to mine these resources need permission to explore for and extract them, hence the need for mining licences. Today, the states regulate exploration and mining so that some compensation is paid to the states for minerals (by setting fees and taxes), and the states regulate the safety and sustainability of practices (by setting conditions on how mining operations are run).

Governments also regulate the use and development of land more generally, requiring planning permits for certain types of development. The scope, exercise and administrative review of powers in relation to mining and planning permits has been the focus of much of what has been traditionally referred to as ‘environmental law’, a focused area of administrative law. In more recent cases and law reform, the traditional private/public law distinction in this area has been challenged, for instance in the case of Minister for Environment v Sharma (‘Sharma’) that we discuss below, where the plaintiffs argued that a Minister had a private law duty of care to avoid harm to children in the exercise of a public law power to approve mines.

More generally in terms of climate action, State action is primary but not exclusive. Highly effective climate institutions are essential in all aspects of society, including non-State domains. This is particularly so in the economy and with commercial enterprises given the undoubted role of fossil fuel capitalism in causing the climate crisis.^[5] This means that climate regulatory responses typically combine public law and private law elements.^[6] A key regulatory challenge is designing measures that effectively integrate both, a task that is impeded by the public/private distinction. Relatedly, discernment — rather than rigid rejection — is vital in determining principles such as representative government and the rule of law to climate legal measures.

In the concluding section of this chapter, we reflect on how Australian public law can go beyond the occlusion of its fundamental role in climate action and the distortions that occur through the public/private distinction. For now, we emphasise that the causal relationship between Australian public law and the climate crisis does not run just one way — from public law to climate action. As we highlighted in the first section, there is also the impact of the climate crisis on Australian public law. Nor are these two causal processes separate — there is complex interplay between both. It is this interaction that we will proceed to examine in relation to federalism, representative government and the rule of law.