After the Voice, climate change commitments should be the next urgent constitutional reforms

Senators voted yes for the Climate Change Bill on Thursday, September 8. AAP Image/Mick Tsikas

On the one hand, if we took these constitutional steps we would be in good company. A majority of national constitutions^[11] already protect the environment. On the other, what I suggest here goes beyond most past examples. Most have been decidedly vague.

South Africa’s Bill of Rights^[12], for instance, guarantees everyone the “right (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected”.

Elsewhere, we see rights to a “healthy^[13]” environment, or obligations to “protect and improve^[14]” the environment.

Read more: ‘One of the most progressive and environmentally conscious legal texts on the planet’: Chile’s proposed constitution and its lessons for Australia^[15]

Unfortunately, these constitutional laws reflect only broad aspirations. They don’t always lead to meaningful environmental protection. This is largely because short-term, myopic^[16] economic concerns often act as counterweights blocking effective environmental action. South Africa itself provides one example^[17] where courts balance environmental ideals in the constitution against economic factors.

What I call “fixed constitutional commitments” are precise constitutional guarantees, like carbon reduction targets. Since they fix a specific quantity of commitment, they can be resistant to the judicial balancing that usually neuters^[18] environmental constitutional clauses.

Precedents abroad, and even in Australia

While this idea is largely novel, it has some precedents. Bhutan^[19], Kenya^[20] and New York State^[21] each specify a minimum amount of forest coverage. On this, New York was the trailblazer: the state’s constitutional protections for forests date back to 1894.

Just last year in Australia, Victoria constitutionally entrenched a ban on fracking^[22]. To do this Victoria used a simple legislative process for constitutional entrenchment available to each state under the Australia Act 1986^[23].

This makes Victoria one of a handful of jurisdictions that have also set precise environmental targets in constitutional law. In this case, a commitment to zero fracking.

Victoria entrenched a ban on fracking into its constitution. AAP Image/Joel Carrett

After the Victorian constitutional reform, one opposition member raised an important objection^[24]: that putting environmental policy in the constitution takes it out of the democratic sphere.

This is true to an extent. But there are important responses.

First, fixed constitutional commitments may correct failures of democracy. Elected representatives often represent the preferences of citizens on the environment weakly, at best.

And despite overwhelming popular support^[25] for a strong response to the climate emergency, many politicians worldwide oppose such responses – and not because they know better. Many believe their real constituents^[26] to be the businesses and other interests that underwrite electoral campaigns.

Read more: Climate wars, carbon taxes and toppled leaders: the 30-year history of Australia’s climate response, in brief^[27]

Moreover, the “climate wars^[28]” have long held Australia in legal limbo. We can’t take significant action on the climate as long as politicians can’t agree for long about what actions to take.

Before a community can begin to hash out new policy, it has to settle its basic policy priorities – such as net-zero carbon emissions by a given year. A democracy that’s stuck at the priority-setting stage can’t go on to work out the details^[29] of policy. And deliberation about policy details is where most of our democratic activity generally lies.

Taking meaningful action on climate change cannot wait. AAP Image/Jeremy Piper

Fixing democratic failures on the environment

There has been much talk in recent years^[30] about whether the world’s remaining democracies are too prone to division, and too weak to take action against long-term problems.

Can democratic systems still adequately address challenges – such as climate change – almost tailor-made for disinformation, political polarisation and gridlock? Or do we need new tools to avoid the policymaking quagmires that have so often kept democracies from tackling complex problems?

The best solutions will invent new ways of getting things done while preserving, and even improving, democracy. Fixed constitutional commitments on climate change may demonstrate a democratic society can indeed remain responsive to our most complex and urgent problems.

Read more: Now, we begin: 10 simple ways to make Australia's climate game truly next-level^[31]

Read more https://theconversation.com/after-the-voice-climate-change-commitments-should-be-the-next-urgent-constitutional-reforms-190048