Does an Implied Right to a Healthy Environment already exist in the Constitution?

By Costa Avgoustinos
Protest placard reads justice

The Right to a Healthy Environment* may be implied in the Australian Constitution. I argue this position based on existing precedent regarding constitutional implications: the High Court recognises that rights may be implied in the Constitution if ‘necessary’ to protect the Constitution itself: Lange (1997). My argument is that a Right to a Healthy Environment is so ‘necessary’ because the Australian constitutional system requires a healthy environment to function.

The implied right to a healthy environment

For an example of the Court’s approach to establishing implied constitutional rights, consider the Implied Freedom of Political Communication. In the 1990s, the Court held that the Australian constitutional system needs people to be able to speak freely on political matters for Parliament, elections and so forth to operate effectively: Nationwide News (1992); ACTV (1992). The Constitution, therefore, implicitly forbids the Commonwealth and States from compromising such speech (despite the fact that ‘free speech’, or similar words, are nowhere to be found in the document explicitly). In Brown (2017), for instance, a Tasmanian law restricting protests in certain forestry sites was deemed unconstitutional because it breached this Implied Freedom.

The Implied Right to a Healthy Environment that I am proposing applies a similar logic. That is, just like free political speech, our constitutional system needs a healthy environment. Let us consider this in the context of climate change.

As McHugh J states, our constitutional system is ‘intended to endure for centuries’: Theophanous (1994). If climate change gets out of control, this may not be possible. How can we ensure our politicians, judges and institutions are not vulnerable to corruption if food and water insecurity are rampant? How can elections and government functions run smoothly if fires, floods, disease and more escalate? What tensions between the States will emerge due to shared water sources drying up?

Our constitutional system needs a healthy environment. The Constitution implicitly forbids the Commonwealth and States from compromising this environment – just as it implicitly forbids them compromising free political speech and other vital components of this system.

This implicit prohibition on certain government acts of ecological destruction would be the Implied Right to a Healthy Environment.

The Adani coal mine case study

To better understand the argument, consider government approval of the Adani coal mine as a case study. If built, this mine would devour too much of the remaining carbon budget, fuel climate change and, thus, hurt our constitutional system. For this reason, government approval of this mine may be argued to breach the Implied Right to a Healthy Environment (if established) and be consequently invalidated.

Of course, challenges may be raised against this assertion. One might argue that this mine does not singlehandedly destroy our constitutional system. This, however, is not how implied rights work. No breach of an implied right singlehandedly destroys our Constitution.

The Tasmanian law restricting protests in Brown (2017), for example, did not come close to singlehandedly destroying our Constitution. Nevertheless, the Court was sensitive to how such actions might incrementally or partially chip away at our system. This was enough for it to be deemed in breach of the Implied Freedom of Political Communication.

Another counter-argument may be made that the economic benefits of the Adani coal mine must be taken into account. I would agree with this. The High Court formulates Implied Rights with a “proportionality test” for this reason: Lange (1997). This test basically requires the Court to permit the government to do what it wishes if it is for some benefit that is “worth” the potential damage to the Constitution. With the Adani Coal Mine, the argument can be made that its disputed economic benefits are not worth this damage.

A further counter-argument flows from this. Would the Implied Right to a Healthy Environment require judges to engage in too much subjective or “political” decision-making? For instance, judges may have to make economic value judgments regarding the mine when applying this proportionality test.

One problem with this, though, is that such value judgments – on not just economics, but national security and other politically-charged matters – are the norm in Australian constitutional law, where the proportionality test is employed with regard to a range of topics.

Further, judges are the guardians of our Constitution and watchdog of the government. One may argue it would be a dereliction of their duties not to intervene against this looming existential threat to our constitutional system. Judges cannot simply pretend that climate change, and such giant coal mines, do not pose such a grave threat (and should not let governments get away with doing so either).

Why is the Implied Right worth pursuing?

While convincing the Court to recognise the Implied Right to a Healthy Environment would be no easy feat, it offers unique benefits to the Australian climate litigation community that make it worth pursuing.

One strength is that this proposed argument for an Implied Right to a Health Environment could be taken to court now. A referendum is not needed. It is based on the document’s existing ‘text and structure’ seen through the lens of existing precedent.

Another strength is that the Constitution is the one law above government that cannot be changed at the whim of politicians. This is different from environmental protection legislation, which too often we have seen governments simply rewrite and weaken whenever it gets in the way of the climate-damaging mines and other projects they wish to support.

Big societal crises, like World War II and the Cold War, have often been the catalyst for discovering new aspects implied in our Constitution. Climate change and other pressing environmental threats are such a crisis today, shedding light on the fact that our constitutional system has always existed within, and been dependent upon, the ecosystem. If this ecosystem falls apart so too does this constitutional system built within it.

These environmental crises are not going away. Indeed, the argument for the Implied Right to a Healthy Environment will only become more compelling over time. The sooner we recognise this Implied Right the better equipped we will be to pass on a healthy constitutional system to future generations as our Constitution requires.

* Elsewhere, I have referred to this proposed ‘Implied Right to a Healthy Environment’ as the ‘Ecological Limitation’.