Climate Change and the Australian Constitution: The Case for the Ecological Limitation Constantine Avgoustinos A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy University of New South Wales Faculty of Law 2020 Copyright Statement 'I hereby grantthe University of New South Wales or its agents a non-exclusive licence to archiveand to make available (including to members of the public) my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known. I acknowledge that I retain all intellectual property rights which subsist in my thesis or dissertation, such as copyright and patent rights, subject to applicable law. I also retain the right to use all or partof my thesis or dissertation in future works (such as articles or books).' 'For any substantial portions of copyright material used in this thesis, written permission foruse has been obtained, or the copyright material is removed from the finalpublic version of the thesis.' Authenticity Statement 'I certify that the Library deposit digital copy is a direct equivalent of the final officiallyapproved version of my thesis.' ii Acknowledgements I am extremely grateful for the support I have received from my supervisors, Gabrielle Appleby, Ben Golder and Amelia Thorpe. Their assistance and encouragement, given with such generosity, has been invaluable. I am also thankful to Peter Burdon, Patrick Keyzer and Andrew Lynch for taking the time to read, and share their thoughts on, earlier drafts of this work. I am grateful to my family and friends. In particular, I acknowledge the endless support of my mother, Flora Avgoustinos, and care I have received from my dear friends, Arani Ahmed, Daina Aspin and Zoe Roberts. I am also thankful to Penny Crofts and Geoff Holland for giving me my first opportunities in academia and for their encouragement ever since. Finally, I gratefully acknowledge the support of the Sir Anthony Mason PhD Award for partly funding this research. i iv Originality Statement ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed …………………………………………….............. Date …………………………………………….................. iii vi Thesis/Dissertation Sheet Surname/Family Name : Avgoustinos Given Name/s : Constantine Abbreviation for degree : PhD Faculty : Law School : Law Climate Change and the Australian Constitution: The Case for the Thesis Title : Ecological Limitation Abstract Climate change poses a serious threat to the long-term structural integrity, if not existence, of the Australian constitutional system. This means that Australian government action worsening climate change poses a threat to this constitutional system. When government action threatens this system, even in a partial or incremental manner, the High Court may derive implications from the Commonwealth Constitution (‘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. Based on this reasoning, I explore in this thesis whether a doctrinal argument can be made for deriving a new implication from the Constitution that I refer to as the ‘ecological limitation’. This limitation, if established, would restrain some forms of Commonwealth or State legislative and executive action worsening climate change in the interests of preserving the Australian constitutional system. My methodology for assessing the doctrinal merits of this proposed implication is framed by the High Court’s ‘text and structure approach’ articulated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. This interpretive approach requires implications to be derived from the text and structure of the Constitution. I supplement this approach by drawing comparisons between the ecological limitation and established implications to gain further insights on what aspects of a proposed implication may be deemed acceptable and unacceptable by the Court. Finally, I tease out the operation of the ecological limitation by considering its hypothetical application in relation to a real occurrence. Namely, I consider how the limitation might apply to restrain Queensland government approval of a proposed coal mine – the Carmichael mine currently being pursued by Adani Mining Pty Ltd. By following this methodology, I arrive at the doctrinal argument for deriving the ecological limitation outlined above and assess the doctrinal arguments against its derivation that might be raised in response (such as concerns regarding the political decision-making judges would have to engage in if the limitation is established). I conclude that a compelling doctrinal case can be made in support of the ecological limitation that can withstand these counter-arguments. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents a non-exclusive licence to archive and to make available (including to members of the public) my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known. I acknowledge that I retain all intellectual property rights which subsist in my thesis or dissertation, such as copyright and patent rights, subject to applicable law. I also retain the right to use all or part of my thesis or dissertation in future works (such as articles or books). …………………………………………………………… ……….……………………...…….… Signature Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years can be made when submitting the final copies of your thesis to the UNSW Library. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. v viii Inclusion of Publications Statement UNSW is supportive of candidates publishing their research results during their candidature as detailed in the UNSW Thesis Examination Procedure. Publications can be used in their thesis in lieu of a Chapter if: The candidate contributed greater than 50% of the content in the publication and is the “primary author”, ie. the candidate was responsible primarily for the planning, execution and preparation of the work for publication The candidate has approval to include the publication in their thesis in lieu of a Chapter from their supervisor and Postgraduate Coordinator. 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Candidate’s Name Signature Date (dd/mm/yy) Constantine Avgoustinos vii Table of Contents Acknowledgements ………………………………………..………………………i Originality Statement ……………………………..……………………...............iii Thesis/Dissertation Sheet ……………………………………………..…………...v Inclusion of Publications Statement …………………………..……….................vii Chapter 1 Introduction ……………………………………..……………..1 I Introducing the ecological limitation ……………………………………...2 A Climate change and the Constitution ………………………………2 B The ecological limitation ………………………………………….6 C The research question ……………………………………………..9 II Australian constitutional law and the ecological limitation ………………11 A Australian constitutional law and constitutional implications ……11 B Australian constitutional law and nature …………………………16 III Climate litigation and the ecological limitation …………………………..25 IV Concluding remarks and thesis outline …………………………………...33 Chapter 2 The Text and Structure Approach ………………………39 I Introduction ……………………………………………………………...39 II Defining ‘constitutional implication’ …………………………………….41 III Interpretive methods ……………………………………………………..46 A Defining ‘legalism’, ‘progressivism’ and ‘intentionalism’ ………50 1 Legalism ……………………………………………………..50 2 Progressivism ………………………………………………..52 3 Intentionalism ………………………………………………..53 B Interpretive methods and constitutional implications …………….55 ix IV The ‘representative democracy’ implications ……………………………62 V Lange and the text and structure approach ……………………………….68 A Lange …………………………………………………………….68