3. The Interaction Between Australian Public Law and the Climate Crisis

3.1 Federalism

The preamble to the Commonwealth of Australia Constitution Act 1900 describes our system as an indissoluble federal Commonwealth. Here, we outline the practical realities and future possibilities that the Australian federal system holds for effective responses to climate change.

But first, it is helpful to reflect on the spatial dimensions of climate change, which has repercussions for Australia’s federal system as it divides power across different spatial spheres. Climate change is at once international, national and local. Climate change affects all countries but with uniquely damaging effects on some due to geography, level of development and resources. This means that Australia’s domestic political response to climate change will be heavily influenced by geopolitical factors and the need for international cooperation and response. How Australian public law governs transnational relationships and internationalisation therefore influences its climate response, as well as the State’s capacity to implement international commitments. The local is also important in climate responses, with local communities at the front line of the impacts of climate change and therefore having strong views about mitigation and particularly adaptation. How Australian public law (and specifically its practice of federalism) allows for subsidiarity (ie decision-making at the most local level) while providing a framework for national cooperation and response will influence the effectiveness of its climate response.

The division of powers across different levels of government characteristic of federal systems might be considered as facilitating or hindering effective responses to climate change.^[1] On one hand, federalism provides more localised sites of action and greater responsiveness to local community concerns as to the need to take action to address and mitigate against the effects of climate change, as well as the possibility for experimentation, inter-jurisdictional learning and competition to develop effective policy responses.^[2] It can also create ‘redundancy’, so where one level of government refuses to act, this can be compensated for by other levels. On the other hand, federalism can facilitate local responses that preference short-term economic interests, and the federal division of powers can make more holistic and coordinated national reform, including reforms to meet international commitments, difficult, such as through blame-shifting, and a race to the bottom.

Under the division of legislative and fiscal powers in the Australian federation both the Commonwealth and the states have the power to respond to climate change — that is, there is a dual or coordinate responsibility. The Commonwealth, however, retains dominance through a number of mechanisms. Where there is inconsistency between Commonwealth and state laws, Commonwealth law will prevail under s 109 of the Constitution. Further, the Commonwealth has financial dominance which, as we explore later, has been used to dictate policies to the states in areas outside its legislative competence.

There is no clear federal head of power to deal with the environment, or climate change. The states have traditionally had responsibility within their plenary residual power for land and resource management, transport and urban planning, infrastructure, network utilities and the environment.^[3] However, the Commonwealth Parliament has an amalgam of powers that has been — and could be — used to respond to climate change. These powers include the trade and commerce power (s 51(i)), the taxation power (s 51(ii)), the corporations power (s 51(xx)), the races power (s 51(xxvi)), the treaty implementation aspect and the geographically external aspects of the external affairs power (s 51(xxix)), and the implied nationhood power.^[4]

The external affairs power has proven to be an important legislative power for responding to climate change and environmental degradation. Under the international law taxonomy, Australia operates as a dual system: the executive government can enter into international commitments (including treaties) but these will not have the force of domestic law unless incorporated through legislation (although they might have other influences on the law such as the development of the common law). So it is through the external affairs power that the Commonwealth can implement its international environmental and climate commitments. Equally, the expansion of international law to include environmental protection has influenced the development of Australian constitutional law: it was an attempt to protect the wilderness of Tasmania through an international treaty that the modern understanding of the scope of the external affairs power was developed.

The High Court in the case of Commonwealth v Tasmania^[5] considered whether the Commonwealth Parliament had the power to pass the World Heritage Properties Conservation Act 1983 (Cth). The Act had been passed to prevent the Tasmanian Hydro-Electric Commission from constructing a hydro-electric dam on the Gordon River, which would have flooded the Franklin River. The High Court upheld this legislation as connected to a number of heads of legislative power: most famously that it implemented the international Convention Concerning the Protection of World Cultural and Natural Heritage and so was with respect to external affairs (s 51(xxix)).

While there are many important federal statutes that respond to climate change, there also remain significant state-level regimes. For instance, electricity power networks, which are responsible for the majority of emissions caused by coal-fired power stations, are regulated by the state governments, and historically were state owned and run (this is still the case in Tasmania, Western Australia and Northern Territory and is again the case in Queensland). However, the Commonwealth also now has an interest in energy generation, through the National Electricity Market that covers five of the states (excluding Western Australia).

In addition to this amalgam of federal legislative powers available to it, the Commonwealth can pursue its policy objectives by relying on its significant financial power. This power can be traced to Australia’s exacerbated vertical fiscal imbalance (‘VFI’) — that is, the financial dominance of the Commonwealth due to its significant revenue base as against the expenditure responsibilities of the states. The VFI in Australia is addressed through different forms of funds transfers between the central and state governments. Under s 96 of the Constitution, the Commonwealth has an almost unlimited power to make conditional grants to the states; these are not limited by the areas within the Commonwealth’s legislative power. So, for instance, significant monetary grants to mining companies (through the states) under the Northern Australia Infrastructure Facility Act 2016 (Cth) (‘NAIF Act’) have been made under the grants power.^[6]

Alan Fenna explains that in Australia, the dual source of legislative power, and the overlap and duplication that has created, has largely operated in relation to climate change response in a beneficial way through what he refers to as ‘compensatory federalism’.^[7] Neither the Commonwealth nor the states have historically been more effective in their response to climate change and environmental protection. Rather, the redundancy of the two levels of government has allowed them to compensate for each other. While in the 1980s, advocates may have turned to the Commonwealth to intervene to prohibit the construction of the Gordon–Franklin dam, there have also been significant periods during Coalition government rule when the Commonwealth has not progressed responses to climate change and environmental protection so that advocates have turned to the states, as well as local governments, to achieve their policy objectives. In this way, locally driven political pressure to respond to the threats of climate change has in many senses revitalised federalism in Australia.

During the Howard Liberal–National coalition Commonwealth government (1996–2007), the states introduced a number of progressive climate policies, including state/territory-based emissions trading schemes (in NSW and the ACT) and renewable energy production incentives, as well as horizontal coordination and advocacy in the establishment of the National Emissions Trading Taskforce and the influential Climate Change Review by Ross Garnaut, which reported in 2008. During the Rudd/Gillard Labor government (2007–2013), the Commonwealth government pursued more ambitious emissions reduction targets, attempted the Carbon Pollution Reduction Scheme and introduced a carbon price. However, these moves were largely, although not entirely, rolled back under the Turnbull/Abbott/Morrison government (2013–2022), which turned to a less ambitious and effective ‘direct action’ policy. In the wake of the roll back by the federal government, the states re-entered the field with ambitious emissions reduction and renewable energy targets.^[8]

Reliance on states without national standards and coordination, however, brings with it a danger of patchwork and inconsistent responses. This is also evident in Australia. While there has been significant progress in most states towards the adoption of renewable energy, and meeting emissions targets, the Climate Council in September 2024 identified Western Australia and the Northern Territory as jurisdictions that had approved coal and gas projects and were struggling to meet their emissions reduction targets.^[9] There is also some cooperation between the Commonwealth and states through the standing cooperative mechanism of the Energy and Climate Change Ministerial Council, which reports to the National Cabinet on work plans and key priorities.

Local government is neither established nor regulated at the constitutional level in Australia, but it nonetheless plays an important role in the federal system, and this has proven the case with climate responses.^[10] Local governments have been highly responsive to local community concerns about climate mitigation and adaptation. Many have issued ‘climate emergency declarations’, adopted ambitious emissions reduction targets and taken action to achieve these, including investing in new low-carbon technology; transitioning their own operations through the adoption of sustainable transport (such as electric vehicle or EV fleets); introducing low-emission infrastructure and services in areas such as energy, transport, waste disposal and sanitation; and supporting local businesses and residents to reduce their emissions. They have also taken a proactive role in working with communities that need to adapt for climate change related weather events such as floods, droughts and fire.

However, local governments can only achieve so much. They are limited by resources (and heavily reliant on federal funding) and are ultimately subject to control by the states. They are also limited in what they can achieve without regional and national cooperation. While for many years the Australian Local Government Association held a seat on the Council of Australian Governments, this is no longer the case under the National Cabinet model of cooperative federal arrangements.

3.2 Representative Government

A key principle of Australian public law is that of representative government. This refers to a system of government where legislative and executive power are ultimately exercised by representatives elected in elections. Selected aspects of this system are provided for under the Commonwealth Constitution (including direct election of representatives and a bicameral system comprising the House of Representatives and the Senate). The High Court has also implied under the Commonwealth Constitution a freedom of political communication and a right to vote.^[11]

Most aspects of the Australian system of representative government rely heavily on political constitutionalism and are a matter of convention and practice, most notably in the doctrine of responsible government where the executive is responsible to the legislature. Key features of Australian electoral systems include:

• the secret ballot (called the ‘Australian ballot’ in some countries);
• compulsory voting;
• uniform franchise of adult citizens;
• constituencies of comparable numbers of electors; and
• independent electoral commissions responsible for administering elections and drawing electoral boundaries.^[12]

All state constitutions except for that of Western Australia have established four-year fixed terms for elected representatives. By comparison, the Commonwealth Constitution stipulates the maximum term for members of the House of Representatives (through s 28) but enables the actual term to be determined by the government of the day, which has the power to call for federal elections through the Prime Minister advising the Governor-General to dissolve the House of Representatives (s 5).

There is a clear yet complicated relationship between the system of representative government under Australian public law and understandings of democracy. In essence, democracy means government by the people. Within this core meaning, there is considerable debate as to the scope of democracy, in particular whether it extends beyond government through the State to ‘private government’;^[13] direct and representative democracy; and aggregative, participatory and deliberative approaches.^[14]

The understanding of democracy reflected in Australian public law is limited to the exercise of power through the State and is mainly based on representation (with the major exception of referendums necessary for changes to the text of the Commonwealth Constitution). It has specifically focused on the election of representatives and done so with unmistakable emphasis on the aggregation of the preferences of voters and their participation. It has been far less concerned with the deliberative aspects of democracy (including the information environment of elections), ^[15] as well as how power is exercised by elected representatives and governments. This suggests an abstentionist approach consistent with liberal democratic thinking that vacating by the State would invariably give rise to democratic flourishing. Whether this assumption is warranted is a question we take up at the end of this chapter.

The system of representative government in Australia has been — and is — the primary site of contestation with the climate crisis because of the role of the State   and the dominant context of political constitutionalism. This contestation has been fierce, so much so that it is common to refer to the ‘climate wars’ in Australia. These climate wars have contributed to the ousting of three prime ministers since 2007, as well as distorted different interests to the point that they have become irreconcilable, thereby providing a platform for political polarisation and the exploitation of division for electoral gain. Such polarisation is reflected in the importance ascribed to emissions reductions by voters, which sharply divides along political party lines. It has also resulted in divisiveness and conflict — much of which was unnecessary — and false trade-offs between protecting jobs as opposed to the environment, regions and cities, and blue-collar and white-collar workers.^[16] This polarisation has been a major cause of Australia being a climate laggard. But what has been the role of Australia’s system of representative government in all this?

There is an important yet unexamined question whether such polarisation has been exacerbated by the potential structural bias of Australian public law towards the interests of voters who will determine the composition of the lower house, particularly voters in marginal seats. Similarly unexamined is the impact of the lack of fixed-term elections at the federal level and whether federal adoption of fixed four-year terms as in most states would make a positive difference.

More clearly, the laws relating to public protests and the significance of political constitutionalism have allowed widespread protests such as the student climate strikes and meant a degree of tolerance of campaigns based on civil disobedience. Such activism has, however, prompted attacks on the ability to protest through anti-protest laws that have been enacted in a number of states^[17] (although some of these restrictions have been subject to successful constitutional challenge under the implied freedom of political communication^[18]), and the use of strategic litigation against activists (see more on this latter in section 3 on ‘Rule of Law’).^[19]

Sins of omission are easier to identify. Central to campaigns for stronger climate action such as the student climate strikes is intergenerational equity and the obligation of the current generation to bequeath a planet safe for human existence to the generations to come. While the Australian system of representative government does not preclude such consideration, it fails to provide a systematic imperative for such consideration. Worse, as the system is oriented towards the interests of voters, a particular section of the current generation, there is all the risk (and reality) of intergenerational concerns being marginalised.

A major blind spot of what would otherwise be considered strong electoral systems concerns the funding political parties, candidates and other political actors at the federal level. Here there is a ‘decidedly laissez-faire’ approach^[20] with no current limits on political contributions or spending.^[21] The focus on the election of representatives, with far less regard for how governments exercise power, has also contributed to weak regulation of lobbying (attempts to influence government decision-makers). These have contributed to what has been called a fossil fuel hegemony in Australia; one that, perhaps, was vividly illustrated by former Prime Minister Scott Morrison brandishing a lump of coal provided by the Minerals Council of Australia in the Commonwealth Parliament.^[22] Some have pointed to the nexus between the fossil fuel industry and Australia’s highly concentrated media.^[23] Professor Ross Garnaut, who wrote two comprehensive reports on climate change, has observed in relation to Australia that ‘[e]missions-intensive industries have invested heavily to influence climate change policy since the early days of discussion of these issues’.^[24] The investment in influence by these industries is notable in the following ways:

• The resources industry is by far the largest sector making political contributions.
• The success of the $22 million advertising campaign by mining companies against the Rudd government’s resource super-profits tax is part of political folklore — to the extent that ‘[i]t’s now become routine for industry groups to threaten a “mining tax style campaign” every time they don’t get their way with government’.
• Employees and lobbyists of industry have included former ALP ministers, former National Party leaders and former Liberal Party ministers.^[25]

Power of this nature has a profound impact, and enlivens the notion of ‘policy capture’.^[26] Marian Wilkinson’s book The Carbon Club provides a meticulous account of how a network of climate-science sceptics, politicians and business leaders brought about decades of climate inaction in Australia.^[27] Under the Howard government, climate change policy was effectively determined by fossil fuel lobbyists (many of whom were former senior public servants), who likened themselves to organised crime through a self-styled label — the greenhouse mafia.^[28] And perhaps the most singular fact — fossil fuel companies have played an instrumental role in ousting two out of the five prime ministers in office since 2007; namely, Kevin Rudd and Malcolm Turnbull.

While the prospect of robust regulation of federal lobbying seems distant,^[29] this has not the case with political finance laws. In November 2024, the federal Labor government proposed the Electoral Legislation Amendment (Electoral Reform) Bill. The Bill included significant changes to the two pillars of current federal laws (disclosure and public funding), while adding another two (caps on contributions and caps on electoral expenditure). It is the most ambitious reform of federal political finance laws attempted since the current regime was established four decades ago. The original bill would have reduced the influence of big money in politics, but it did not go far enough in curbing large donations and excessive spending. Its scorecard on promoting fair elections was mixed: it will make elections fairer in key respects, but it will also unduly favour the major parties, political parties with wealthy candidates and those with investment income.^[30]

After securing the support of the opposition, the Labor government pushed through an amended Bill after two days of debate by the Commonwealth Parliament. The Electoral Legislation Amendment (Electoral Reform) Act 2025 (Cth), which comes into effect in 2026, maintains the features of the original Bill in relation to disclosure obligations, caps on electoral expenditure and public funding. However, it more than doubles the caps on contributions, to $50,000 per year for each recipient, rendering this essentially hollow. The upshot is an ambiguous picture where a shameful parliamentary process has produced laws that are unfair and ineffectual in significant ways and yet democracy-enhancing in others.^[31]

Without doubt, the climate crisis has and will continue to shape Australia’s system of representative government. For the foreseeable future it will be the primary site of climate in/action and increasingly so with the gathering pace of climate action and the deepening impacts of climate catastrophes. In the concluding section, we consider the increasing power of the executive arising from the climate crisis and how the crisis has catalysed discontent with Australia’s current system of representative government.

3.3 Rule of Law

The rule of law is generally associated with a set of standards or principles directed at the constraint of the arbitrary exercise of State power for the purpose of protecting individual liberty and dignity.^[32] Focused on constraining power and reducing arbitrary discretion, the rule of law has been critiqued by those who would like to see greater government intervention in matters such as social welfare and, similarly, addressing climate change. The rule of law has also been associated with other objectives. The World Bank, for instance, has described the importance of the rule of law for providing ‘a stable investment environment and the predictability necessary for markets to operate’.^[33] The cry for stability under rule of law can cut in different ways in the climate change debate. It can be an important driver to retain the status quo for vested interests in emitting industries such as fossil fuels, but a stable regime is also an important factor for emerging markets such as renewable energy.

What elements constitute the rule of law principles differs according to the definitional approach. A ‘thin’ or ‘formal and procedural’ account of the rule of law emphasises a list of formal qualities: the equal application of law; the separation of powers; accessible judicial review and an independent judiciary; and prospective, clear, stable and publicly promulgated laws. More contested are ‘thick’ proscriptions for the rule of law, which build on the thin conceptions to add more substantive protection for rights. More recently, this has given rise to the idea of ‘environmental rule of law’, in which the formal rule of law principles are integrated with individual and environmental rights and obligations to improve environmental governance.^[34]

The rule of law, the role of law and the courts within the legal system prompt questions about where responsibility best lies for addressing climate change. The Australian instantiation of the rule of law is generally associated with the thin, formal and procedural version. The Constitution protects some — but not all — of the procedural aspects of the rule of law, including the right to seek judicial relief from the actions of Commonwealth and state officials, judicial independence and minimum standards for a fair trial.^[35] This has given the judiciary an important role in ensuring the oversight of violations of environmental law by governments, individuals and industry. Judicial review of government decisions to grant approvals or licences for mining and other activities that would damage the environment and contribute to climate change has been an important lever for advocates.

Some within government and industry have criticised the use of the law and the courts in this way. Former Commonwealth Attorney-General under the Howard coalition government George Brandis explained his concerns about ‘green lawfare’, which he described as using ‘the law and the institutions and processes of the law … to conduct a kind of social, political or environmental warfare by other means’.^[36] But the use of law as part of a larger campaign to achieve broader interests is not limited to environmental groups. The use of ‘strategic lawsuits against public participation’, or ‘SLAPP suits’, by industry against NGOs and prominent campaigners has also been a dimension of climate change politics in Australia. For instance, in 2020 a subsidiary of Indian multinational company Adani brought a $600 million compensation claim against an environmental campaigner for unlawfully disrupting operations at its Carmichael mine in Queensland. The ACT has attempted to ban such suits under the Protection of Public Participation Act 2008 (ACT).^[37]

However, there are limits to what judges can do under this traditional conception of judicial review and a formal and proceduralised account of the rule of law. In particular, it limits the courts to reviewing legality and procedure of decisions, rather than the substance of the decision in relation to its effects on climate change and the environment, or future generations.

In Australia, protection of more substantive aspects in relation to human rights and environmental protection rely on a complex mix of political and legal constitutionalism, and there has been legislative inaction and judicial pushback against the idea that the courts might play a broader oversight role in relation to addressing climate change risk. These concerns have played out in recent Federal Court litigation, culminating in Minister for Environment v Sharma.^[38] The Full Court of the Federal Court denied a claim by a group of children that the federal Minister for the Environment owed them — as representing the next generation — a duty of care to avoid injury or death arising from the emission of greenhouse gases in the exercise of a discretion under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) to issue a coalmine extension. Part of the reasoning lay on the ground that such a legal development would draw the judiciary into the determination of complex ‘multidisciplinary’ policy issues that required difficult judgement calls and the negotiation of domestic as well as international affairs. They are matters, in the words of Justice Wheelahan, ‘uniquely suited to elected representatives and executive government responsible for law-making and policy-making’ and ‘inappropriate for judicial resolution’.^[39] They would, in the words of Chief Justice Allsop, undermine the ‘structure of responsible and representative parliamentary democracy’.^[40]

These concerns are not unique to Australian public law, and they can be identified also in New Zealand and American case law.^[41] This can be contrasted to European courts, which have embraced this role for courts as overseers in relation to government commitments to take steps to address climate change.^[42] Zoe Bush has argued that the reason for this differing approach across systems could be attributed to different constitutional cultures, where those with legally enforceable social and economic rights are more likely to embrace a role for the courts in ensuring adequate political responses to climate change.^[43] Scholars have argued that rather than undermining traditional understandings of the separation of powers these cases represent an adaptation of the separation of powers to ensure the independent judiciary is able to act as an effective check on majoritarian democracy, concerned for the immediate interests of the majority of the current generation. Court decisions have not dictated government policy outcomes to the government but rather required the government to explain and justify their policy choices, thus strengthening the legitimacy and quality of political decision-making.^[44]