1. The Central Significance of Public Law in the Climate Crisis
Public law conventionally refers to the law governing the State, specifically, the exercise of State power. It is — and will increasingly be — central to societal responses to the climate crisis.
According to the Intergovernmental Panel on Climate Change, ‘rapid, far-reaching and unprecedented changes in all aspects of society’[1] are necessary to stave off climate catastrophes. These changes will require climate mitigation (actions to limit the amount of greenhouse gases causing climate change) and climate adaptation (actions to adjust to the effects of climate change). The State is primary to both types of actions. As climate disruptions become more extreme, there is a more existential question of whether existing public law institutions are sufficiently robust to navigate the overlapping crises that are likely to ensue (ecological, political, social and economic). This gives rise to a deep and complex relationship between public law and the climate crisis.
At one level, there is the question: how does public law shape the climate crisis? Included within this question is how public law shapes responses to climate action (its extent, timing and sites) and the effect of public law on how climate action is conceived (specifically if it is treated as a legal or political issue). The answer to this depends on the design of institutions exercising State power, the distribution of power amongst these institutions; the nature of their exercise and the public law principles that traditionally govern their operation (including federalism, representative government, separation of powers and the rule of law).
From a different, less obvious, perspective, we can ask: how does the climate crisis shape public law? In this question, we consider how governmental institutions, their powers and public law principles have already adapted, and ought to — or must — adapt to the particular challenge of the climate crisis.
This chapter takes up these questions in relation to Australian public law. Its analysis is situated within the context of Australian climate politics, where there is the historical influence of high-emission industries, including fossil fuels and agriculture, as dominant forces in the Australian economy. As a result, climate policies have become highly politically contentious and are now largely a partisan issue. On the left, the Labor Party and particularly the Greens have supported more ambitious climate action, while on the right, the Liberal Party and National Party have been more cautious, and at times stanchly resistant to climate change policies.[2] The rise of the so-called Teal I ndependents, with their heavy focus on climate action in the 2022 federal election, illustrated voter concern with the failures of the conservative parties to address climate change.[3] Interwoven with climate party politics are the interests at play. These include the fossil fuel industry, First Nations, agricultural interests, fisheries, interested non-government organsiations (‘NGOs’) and community groups, the media and the wider public.
At the heart of the questions examined by this chapter is the challenge of developing public law so that it can facilitate effective societal responses to the climate crisis, particularly through the State. While this challenge is far too large and complex to be dealt with comprehensively by this chapter, we seek to provide more critical understanding of the central role of public law in contributing to and responding to climate change into the future, so as to guide current and future legal professionals and others who must confront this challenge.
- Intergovernmental Panel on Climate Change, Summary for Policymakers of IPCC Special Report on Global Warming of 1.5 °C Approved by Governments (Web Page) <https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments/>. ↵
- Alan Fenna, ‘Climate Governance and Federalism in Australia’ in Alan Fenna, Sébastian Jodoin and Joana Setzer (eds), Climate Governance and Federalism: A Forum of Federations Comparative Policy Analysis (CUP, 2023) 14, 21. ↵
- See further Margot Saville, The Teal Revolution: Inside the Movement Changing Australian Politics (Hardie Grant Books, 2022); Tim Dunlop, Voices of Us: The Independents’ Movement Transforming Australian Democracy (NewSouth, 2022). ↵
Public law conventionally refers to the law governing the state, specifically, the exercise of state power. It includes the design of institutions exercising state power; the distribution of power amongst these institutions; the nature of their exercise; and the public law principles that traditionally govern their operation (including federalism, representative government, separation of powers and the rule of law).
Aboriginal and Torres Strait Islander peoples are the first peoples of Australia, meaning they were here for thousands of years prior to colonisation. Current research confirms that Aboriginal and Torres Strait Islander peoples have lived on the Australian continent for upwards of 60,000 years. While estimates vary, this figure represents the most widely accepted timeframe based on available evidence. Australia is made up of many different and distinct Aboriginal and Torres Strait Islander groups, each with their own culture, language, beliefs and practices. Aboriginal people come from the mainland of Australia and its surrounding islands. The Torres Strait region is located between the tip of Cape York and Papua New Guinea and is made up of over two hundred islands. First Nations is a collective term that refers to Indigenous peoples of a nation, region or place. Indigenous peoples refers to the people with historical and ancestral ties to a place that pre-date colonisation, and is the term used by the United Nations in its Declaration on the Rights of Indigenous Peoples. All these collective terms can be used respectfully. As proper nouns, all should be used with a capital letter.
