4. Directions of Climate Reform for Australian Public Law

This section explores how the evolving climate crisis will shape the future directions of Australian public law. We highlight the mutually constituting relationship between public law and the crisis. By ‘mutually constituting’, we refer to the dynamic process already introduced earlier in the chapter, where phenomena fundamentally and iteratively shape each other; that is, public law provides the framework for the sites and conceptions of climate action in Australia, and in turn the climate crisis actively reconfigures Australian public law. Here, we consider a spectrum of possible future reforms.

A key dimension of the future of climate responses is the growing role of the State. Traditionally, as we have seen, climate change has been framed within Australia as a policy issue — a challenge that can be delegated to various levels of government or private actors to solve. However, as the climate crisis deepens, there will be increasing pressure to position the State as the central structure through which Australia responds. This includes both a national and international dimension, as the State will need to ensure that it meets its global climate commitments while addressing domestic impacts. The imperative of direct and decisive State action will directly challenge the occlusion of public law and the assumed, but problematic, public/private divide. Public expectations of State responses will require greater public sector involvement in mitigation and adaptation strategies, including State-led investments in renewable energy, infrastructure development and emergency response systems. This is already happening, with, for instance, the Future Made in Australia Act 2024 (Cth) and the creation of the statutory investment Net Zero Economic Authority.

In this changing landscape, it is the federal executive that is likely to emerge as a central player, as there is a growing expectation that Australia will meet its global obligations to combat climate change. Domestically there is a need for a holistic and coordinated national responses. The power of the executive will also tend to increase in terms of dealing with the specific states of emergency resulting from climate disasters and the ‘long emergency’ of the crisis.^[1]

With the increased role and powers of the executive will come an increased need for public law to be able to support climate responses; that is, to hold the government to account for meeting these existential challenges. The three principles that we have set out above — federalism, representative government and rule of law — will each need to be reconstituted to be able to address this future.

4.1 Federalism: From Vertical Distribution to Vertical Integration

The climate crisis requires a national response that is holistic, effective and coordinated, and also anchored in international cooperation and solidarity. There is no constitutional reason that Australia’s federation cannot meet this challenge, but it does require a reimagining of the practice of federalism and greater integration between local, state and national responses to climate change. To be effective, this integration and coordination needs to be nationally led and enduring, and not dependent on the political makeup of the federation. As we introduced above, there is already some structural scaffolding that can assist this, including the Ministerial Councils and National Cabinet. Strengthening these institutions, making their processes more transparent and giving them greater accountability would go some way to address the partisan divides that have emerged in the federation.^[2] Recognising the crucial role played by local governments in climate response and constitutional reforms that recognise the status of local governments within the federation and return them to the discussions of the National Cabinet would also bolster the political imperative for longer-term coordination.

4.2 Representative Government: From Short-Term and Vested Interests to Intragenerational and Intergenerational Responsiveness

The increased role of the State necessitated by the complexity of the climate crisis response must be accompanied by commensurate evolutions in the mechanisms of accountability . As we detailed above, the Australian public law system’s instantiation of representative government and reliance on political constitutionalism have been inadequate to respond to the complex intragenerational and intergenerational challenges of the climate crisis as a short-term and long-term emergency.

Strengthening and deepening democratic practices underlying Australia’s system of representative government are essential as an antidote to discontent with this system. Prominent climate activists have likened the crisis to a war — even a world war — which they argue necessitates the suspension of democracy.^[3] For instance, Peter Garrett, former Labor Minister for Environment, has said that ‘the climate emergency dictates the nation must go onto a “war” footing’.^[4]

There are immediate reforms that might be able to address the acute deficiencies of current practices. These include addressing the distorting influence of vested influences through money in politics reforms (more effective donations and expenditure regulation), the regulation of lobbyists, strengthening media regulation and oversight, and addressing the silencing of public dissent through anti-protest legislation or the use of SLAPP suits, which target those advocating stronger climate action. Strengthening the mandates and independence of integrity institutions, sometimes referred to as the ‘fourth branch’ of government, including anti-corruption commissions, ombudsman offices and the Auditor-General, will also address these concerns.

More challenging is the need for representative government to address its failure to incentivise longer-term action. Longer terms (federally) might go some way towards doing this, although whether it would be sufficient is doubtful. Another option is to recraft what Tocqueville called ‘the spirit of democracy’^[5] to integrate ‘a solidaristic ethos’.^[6] This is about countering short-termism and self-interest in political systems and providing imperatives for intragenerational and intergenerational solidarity. One way to achieve this could be through a dedicated institution, such as a Future Generations Commission, to hold the government to account for its actions on behalf of future generations. This idea has been adopted in Wales through legislation^[7] that places a duty on every public body to carry out sustainable development, which requires acting in a manner that ‘seeks to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs’.^[8] Another alternative is what Ron Levy has referred to as ‘fixed constitutional commitments’.^[9] These are constitutionally set targets to address climate change that would provide a constitutional imperative for democratic response and enduring commitment to addressing climate change.

How to invigorate multi-vocality in the practice of democracy is a more complex challenge. Australia’s practice of democracy through representative government needs to be made more inclusive for climate-vulnerable communities that have historically been marginalised, including women and girls, youth, Indigenous peoples and climate migrants. This requires a shift from a focus on elections and representatives to the ongoing inclusive and deliberative practice of democracy. The Uluru Statement from the Heart’s proposal for a First Nations Voice was a structural reform directed to such an end. While the 2023 referendum rejected the constitutional establishment of this body, its imperative, that there needs to be dedicated and properly resourced structural mechanisms for these groups to be heard in society, remains acute.^[10]

Other options that might promote a more inclusive practice of democracy include the greater use of mechanisms such as deliberative multilateral forums (eg forms of citizens assemblies) to generate and determine policy responses to the climate crisis. If carefully designed, and seen as legitimate within the broader democratic system, these reforms would ensure that the most vulnerable have a seat at the table as well as fostering a shared responsibility across society to address the climate crisis.

4.3 Rule of Law Reforms: From Empowerment and Constraint to Legal Duties?

With the increased role of the executive there is naturally a turn to an increased — and possibly different — role for the courts. This might entail relatively modest reforms to the current system, such as increasing the courts’ oversight role by expanding the range of grounds for judicial review, with greater statutory legal rights and obligations to serve as footholds for future litigation. An example of such a reform was the attempt to reverse the Full Court of the Federal Court’s decision in Sharma in 2023 through the Climate Change Amendment (Duty of Care and Intergenerational Equity) Bill 2023. This Bill provided a new, legally enforceable duty for government decision-makers to consider the health and wellbeing of current and future children in relation to decisions that would affect climate change. Another relatively modest reform to increase oversight would be to introduce greater scope for merits review of environmental decisions through the independent tribunal system.

There are other more radical and climate-directed reforms which move beyond the concepts of empowerment and constraint on the State towards the conception of direct and legally enforceable duties on the State. This is a move that would previously have been antithetical to the political constitutionalism and liberal democratic traditions of Australia. But perhaps it is needed for the climate crisis, where the traditional institutions of representative government have proven inadequate. This might be achieved through the inclusion of judicially enforceable constitutional rights and duties on the State in relation to various aspects of climate justice, including to provide a healthy environment, to protect nature and to provide for future generations. This is not as radical as it might sound to an Australian public lawyer. Many, in fact most, other countries have constitutional environmental-related rights protections, with concomitant duties on the State,^[11] although they have varied in their effectiveness.