Climate Change and the Constitution: The Case for the Ecological Limitation

In this article, I explore the doctrinal argument for establishing a new implication in Australian constitutional law. The ‘ecological limitation’ is a proposed constitutional implication restraining some forms of Commonwealth or state legislative and executive action worsening climate change. The argument for its derivation is based on the premise that such action poses a threat to the long-term structural integrity, if not existence, of the Australian constitutional system. When domestic government action threatens this system, even in a partial or incremental manner, the High Court may derive implications from the Commonwealth Constitution to restrain such action. This is the reasoning underpinning the Court’s establishment of implied limitations such as the Melbourne Corporation and political communication limitations. In order to help assess the doctrinal merits of the ecological limitation, I examine a hypothetical matter centring on whether Queensland government approval of a coal mine being pursued by Adani Mining Pty Ltd breaches this limitation.