The climate crisis urges us to repair our broken constitution
In a time of climate disasters, can the Australian Constitution protect Country and itself from harm?
I have a rag-tag copy of the Australian Constitution. It has stalked me through thirteen house moves since the ‘90s. When I first held the document, I was a bright-eyed law student convinced Eddie Mabo would realise justice and certain Paul Keating’s Redfern speech had ignited the national imagination. He said, ’We are beginning to learn what the Indigenous people have known for many thousands of years—how to live with our physical environment.’[1]
The pocket-sized Constitution is green with gold font. In my hands it feels managerial and lightweight. The last time it reappeared from the miscellaneous box like a ghost, I couldn’t understand how this mangy pamphlet had survived so many moves. Thirteen times I’ve decided to toss it, but when I unpack at the next home, there it is. One might presume I’m attached to its mould-stained pages: that it’s important and sacred, perhaps a haunting more than a worship. It’s a remnant nagging me to let go, do somatic trauma work on my settler colonial inheritances, or resign to its weird persistence. Maybe I hope time will change it? It hasn’t. It remains flat, ordinary, stubborn.
Thirty years later I work in disaster law and stare at the Constitution with unsettled anxiety about our climate-changed future. Will it ever protect us from climate disasters, or will we simply keep shuffling the deck chairs around?
Why do constitutions matter?
Constitutions are nations’ birth certificates. Nations are imaginary communities. To ensure cohesion and adherence to governance, nations rely upon symbolic flags, uniforms, anthems and sporting teams to bind strangers together. Law is powered by the feelings these stories, norms and myths evoke. Constitutions are written and unwritten laws, regulations, customs, and precedents that make nations. These documents and laws shape and reflect our culture and regulations, influencing every aspect of our lives, from our relationships, movements and behaviours to livelihoods and economics. They determine the stories of who we are and how, and where, we live together. Australia’s written, codified Constitution is difficult to change and sits there smug, holding tight to the status quo of a century ago.
Constitutions structure power and attempt to control its abuses. It is commonly accepted that the modern nation state is founded on violence. Australia has a particular agnotology, a culturally induced ignorance, that denies our nation is founded upon violence against First Nations peoples and their Country.[2] Aileen Moreton-Robinson’s work expresses that Country is central to First Nations relational governance systems and encompasses responsibilities and stewardship of ecosystems, land and environments.[3] First Nations peoples know all too intimately the harsh and criminal consequences of an agnotology that violently denied their humanity for more than two centuries, but also abused Country. Evidence of the continued culturally induced ignorance was rife during the 2023 constitutional referendum to include an Indigenous Voice in its pages, where deliberate strategies of obfuscation and plain lies scrambled a coherent outcome.
Constitutions create the governance cultures that have power over the habitat upon which national sovereignty relies. Climate disasters are violent. They keep coming. Disasters challenge our national imagination and reorganise our collective stories and constitutional foundations. They also question our relationships with the places we call home. Laws determine what we protect and therefore what we decide to lose. Our Constitution, in its omissions, denies that we live on First Nations Country and that all sociopolitical legal authority is existentially dependent on ecological conditions. Climate change, and its increasing disasters, threatens to blast these blind spots into harsh light. A constitutional imagination refers to the ways constitutions use stories, rituals and symbols to shape political realities over time. It also expresses coming to these founding stories and laws with imaginative, expansive possibilities. What kind of constitutional imagination does this historical juncture demand?
Our unimaginative, ordinary Constitution works if business as usual is the aim. It has enabled stable government, married common law to constitutionalism, and adapted to change without much fuss. The separation of powers between the rule of law and the parliament, executive and judiciary is in there, plus federalism’s architecture. But any reading reveals its ‘managerialist’ tones. The dominance of the trade and commerce section resembles a business continuity policy ensuring smooth running of the sheep, mining and wheat industries. Anyone with expectations of rights and aspirational visions for Australia will promptly fall asleep—or throw it away in disgust. Its colourblind banality mirrors its drafters: settler, white, mercantile and desiring nothing more than to maintain the status quo of a century ago. Around us governance and weather alter fast.
Australia’s judicial approach to constitutional interpretation is described as minimalist, (unimaginative) focusing on legalism and adherence to the text. ‘If it ain’t broke don’t fix it.’ Maybe due to the same lack of imagination, Australia doesn’t suffer the US affliction of constitutional hyperbole about guns, abortion and Second Amendment scuffles that tie politics up in knots and ignite insurrections. So far, Australia’s bland operationalism, and perhaps cultural ignorance, protect us from that. As the only common law country without a bill of rights, this means that rights must be implied secondarily, or denied and handballed to parliamentary sovereignty. Legally and politically, we prefer the passive aggression of implied rights, a distortion of the tall poppy syndrome.
What risks does the Constitution manage?
Constitutions regulate and manage risk.[4] Australian governance culture is soaked in risk aversion, but only a certain type of risk. Middle management risks dominate, and other substantial risks are neglected, like human rights and ecological destruction. The ideal constitution is timeless, eternal and adaptable to all future risks. In 1901, when our constitution was settled, climate change and AI were unimaginable. As I attempt to reflect on the legal and normative structures that underpin nations, the Trump administration is smashing governance, accountability, legal norms and distorting the American constitution to its fiscal wishes. In reference to the slowness of governance to adapt to accelerating climate impacts, environmentalist and author Bill McKibben has written about how the ‘world speeds up and we slow down’.[5] Now AI, oligarchical tech bros and climate destruction move faster than human institutions. The slow thinking, reflecting and curating it takes to create, maintain, question and reform norms seems futile.[6]
Echoing French political theorist Paul Virilio, Trump’s former White House chief strategist Steve Bannon calls the US president’s frantic political strategy ‘muzzle velocity’. Virilio’s concept of dromology articulates how speed and its rising velocity transform human societies with faster processes dominating slower ones.[7] This acceleration of time means that to ensure democratic and representative governance continues, laws now need rapid-fire responses and adaptive frameworks with solid immovable values. The unimaginable is occurring. Climate change changes time itself. By the end of the twenty-first century, climate impacts will change the Earth’s axis, altering satellite navigation, software and telecommunications as jet streams and ocean current adjustments increase severe weather and turbulence.[8] Trump’s muzzle velocity assault on constitutionalism uses speed to gain power. Climate change is not dissimilar to Trump. It is unpredictable, ignores democratic conventions, customs and laws, is rising in intensity and causes harm far from the site it originated. Climate change and Trump have no jurisdictional respect, and both are threats to habitability.
All jurisdictions now face an unimaginable dilemma. All our laws were born and raised by constitutions that assume the status quo weather of a century ago. They are based upon presumptions of environmental stability. Now disasters cut through communities and break landscapes making everything uncertain. BOM can’t keep up. Our laws, from tenancy rights through to employment entitlements, take for granted unconditional atmospheric and biological conditions of their jurisdictions. Science tells us these assumptions are dangerous to rely upon, but governance and science don’t have a great relationship. But if our laws, including founding governance, don’t recognise the new volatile environmental conditions, they risk redundancy.
Australia is good at emergency management: prevention, preparation, response and recovery. We are awful at extinguishing the root driver of climate-fuelled disasters: emissions. Despite high vulnerability to climate disasters, Australia has a stable political culture with the agency and capacity to be imaginative and honest.
We cannot imagine that the descendants of people whose genius and resilience maintained a culture here through 50,000 years or more, through cataclysmic changes to the climate and environment, and who then survived two centuries of dispossession and abuse, will be denied their place in the modern Australian nation.[9]
Repeating Keating’s words in the context of climate change, imagine if a nation had within it the oldest continuing political culture in the world still holding sovereignty, and whose fundamental laws not only considered the importance of ecological relationships but also had endured vast time frames? That’s Australia.
Protecting against climate disasters demands facing complex and cascading impacts on our environments, social cohesion, politics and governance. In a future of perpetual climate volatility lies the risk that governance will be trapped in reactive states of emergency cycles. Trauma experts warn that disasters push us into reptilian brain survivalism.[10] Bushfires, floods, cyclones and extreme heat harm and shrink our imaginative and relational worlds. Simultaneously, our history holds high expectations of government. In Australia the social contract still matters. Impacted communities presume government has a responsibility to help them get back on their feet and demand assistance. Emergency management is a residual power left to the states. But the Commonwealth defence power of Section 51(vi) means ADF personnel on the ground sandbagging and debris cleaning is now normalised and almost mandatory. The constitutional equivalent of saying ‘I don’t hold a hose’ could kill prime ministerships.
The Australian Constitution, and political culture, is ‘pre-ecological’—meaning it was finalised prior to the global catastrophic risk of ecological destruction and harm. It’s important to note that this agnotological term doesn’t recognise First Nations ecological sovereignty, which precedes the pre-ecological. Sovereign risk generally refers to national finances, and ecological sovereign risk is understood as the financial risks a nation faces due to ecological degradation. Land, air and water can withdraw their fertility and become just plain inhospitable, which depletes economies and livelihoods. Disasters harm biodiversity and infrastructure with equivalent, violent nonchalance. Climate change unsettles organisms, oceans, soil, rivers, flora and fauna. It also unsettles communities and nations. Migration increases, not only between nations, but internally. This quietly occurs each time cyclones or fires go through Townsville or Gippsland and families leave. There is increased pressure to protect communities smashed by floods and landslides so social security payments are pumped through the Commonwealth system under Section 51(xxiiiA). Grand claims are made of building back better or at least in the same place and same way, as if nothing has changed and never will. In increased survivalist conditions, competition for resources is a risk. But the status quo of a century ago must remain.
The long tail after disasters breeds imagined and real abandonment in communities. No matter the constitutional responsibilities, local, state and Commonwealth governments are the accused. In regional and rural areas lies the creeping realisation that Australia’s habitability is a present and real risk. In Section 51(xiv), the Commonwealth can regulate insurance activities that cross state boundaries or involve national interests. Disasters edge towards the bullseye of national anxieties. Catastrophic weather events propel insurance premiums into unaffordability. Towns and regions impacted by fire, floods, cyclones and storms shuffle into the recovery phase only to find the costs of mitigating risk for their homes and livelihoods meets the precipice of ‘unviability’, a business word for uninhabitable. Council offices, health and community services, small businesses and employers can’t afford insurance, and apparently, insurance companies can’t afford any profit drop. With neither government intervention nor constitutional obligations to protect our habitat, we leave insurance companies to determine where and how we live. By default, the market determines our national adaptation pathways and disaster risk reduction strategies.
The legal debacle surrounding basic habitability smashes jurisdictions into each other. Insurance is Commonwealth, but sometimes state. Planning is state, but pushed down to local when it gets gritty. Tenancy is state, but the budget for public and social housing is jurisdictionally confused. Biodiversity and environment are Commonwealth, but public land management is so labyrinthine everybody gets confused about who is responsible. Then there is climate change: the propeller of uninhabitability. Climate change was unimaginable to constitutional creators, so no one has responsibility—it slides under the Commonwealth’s external affairs powers, Section 51(xxxix), while the engine of the disasters, mining and resources, sits with states. The Commonwealth’s power to regulate corporate power, Section 51(xx), sits impotent and strangled by politics. All these jurisdictions cut across each other, causing maladaptation and exacerbating uninhabitable conditions. There is a managerial distribution of powers, but no balancing obligation to protect the habitability of our national territory. The Constitution has jurisdiction over land and waters that are not just territory but also ecological and Country relationships that are rich, interdependent and determine our collective futures.
Dominant Western law has a nasty anthropocentrism. Its reasoning erases ecological worlds and denies its vital role in our common lives. Felix S. Cohen, a leading figure in the legal realism movement, slammed the intangibility of traditional legal concepts disconnected from the practical effects of law. His insights are relevant for the negligent impacts of abstract law on habitat. He labelled the construct of corporations possessing legal personhood as ‘transcendental nonsense’.[11] Despite its reputation for pragmatism, the Australian Constitution is chock full of transcendental nonsense: none is more glaring than our head of state being the monarch of Great Britain. Anthropocentrism slips into the Constitution through Section 51(xxvi), which allows the Commonwealth to make special laws for peoples of any race. This has resulted in transcendental nonsense that First Nations peoples’ native title contains no concomitant obligations for the state to protect or care for Country. Cohen asserted that the legitimacy of law should be evaluated on its real-world effects. There is nothing more real than being hit by a climate disaster. Nothing is abstract in the face of roaring floods and fires.
The ecological turn
In the past 30 years, commensurate with rising concerns about climate change, there has been an ecological constitutional turn. Ecological rights and recognition have been integrated into the constitutional frameworks of Costa Rica, Switzerland, Italy, France, Portugal, Bolivia, Spain, Kenya, Fiji, Norway, Vanuatu, Brazil, South Africa, Ecuador, Nigeria, India and Mexico. In New Zealand, the Treaty of Waitangi, the founding document of its constitution, allowed the birth of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, giving the river rights. The movement towards ecological constitutionalism hasn’t been easy. While words landed in some founding documents, barriers lie in enforcement and interpretation. But there is something to work with. Are these nations more prepared for the future climate risks to their peoples, land and, by consequence, their governance?
Managing climate change is administratively complicated. It demands systemic scenario planning and fast-moving risk registers with accurate scientific predictions that match social, geographical and economic modelling. We need transparent and quick access to hazard data, resilient supply chains and interoperable infrastructure. Disasters and their consequences will alter our politics, expectations and collective lives: our national fabric and cultural assumptions. To manage risk and for our governance to survive, we need courageous visioning of energy, social and governance transitions, and imaginative leaps into adaptive lawmaking that responds to the injustices and harms that climate change exacerbates. Disasters ask the nation what public good means in a climate-changed reality.
The original Constitution
Aboriginal philosophers Mary Graham and Morgan Brigg speculate on the dangers of prioritising risk as the highest political governance value. ‘Aboriginal political ordering recognises that survivalist impulses and survivalism are part of who human beings are. But rather than granting survivalism a central place, Aboriginal political design, working within vast timeframes, seems to apprehend the mortal danger of institutionalising survivalism as a guiding understanding and orientation of human sociopolitical architecture. Moreover, it seems that Aboriginal political design develops relationalism to attend to, contain and manage the problems that survivalism raises, while also regarding it as part of becoming and being human.’[12]
It seems even-tempered and banal, but the intentional omission of Country means that, by default, our constitution centres survivalism, not relationalism. Relational constitutionalism emphasises relationships and interactions between different groups rather than focusing on individual rights (like property) or state structures. It aims to manage and harmonise these relationships to maintain cohesion and address conflicts. It incorporates non-binding norms and values to support sustainable relationships. Aboriginal political design extends relationality to Country. In a time of dangerous transactional dictators and climate disasters, imagine a nation that originated from timeless political culture with an expansive relational emphasis that enabled it to survive not only colonial invasion but also eons of changing climates? That’s Australia.
Australians’ rejection of the Voice referendum could reflect national tendencies towards racism, laziness or a desire for a managerialist, abstract constitution that ain’t broke yet, at least for the majority. Either way, the historical exclusion of First Nations peoples from the Australian Constitution, and continued refusal to recognise their political frameworks, doesn’t augur well for incorporating constitutional obligations to Country.
What one day may be seen as a founding constitutional document, the Uluṟu Statement from the Heart contains original national truths. The Uluṟu Statement articulates an unceded sovereignty embedded in Country. This sovereignty is dependent upon and in relationship with habitat, has been exercised over vast timeframes, and, due to the role of ancestors and elders, is inherently intergenerational. These principles are key elements of the ecological turn in rights and governance. As it states:
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature,’ and the Aboriginal and Torres Strait Islander peoples who were born therefrom remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty—it co-exists with the sovereignty of the Crown.
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years.[13]
The Uluṟu Statement invites our constitutional imagination to expand into the reality of legal pluralism of two sovereignties coexisting across Australian lands and waters: relational Country and national territorialism. True Treaty processes might lead to a constitution or governance where these vastly different approaches converge to build deep constitutional, and climate, resilience. The Treaty process in Victoria stands as a courageous attempt to weave our broken legal and cultural stories together to make them whole, real and reflective of history, ourselves and the lands we live with.
Will there ever be an ecological constitutional turn in Australia? We can’t even acknowledge the truth of First Nations peoples let alone Country and how its health determines our collective futures. Still stuck on property rights and survivalism, we refuse constitutional recognition of legal facts and choose the settler colonial imagination that relies upon transcendental nonsense because it’s not ‘broke’. A greater risk sits there. The hauntings of an endless Black Summer.
The concept of ecological sovereignty in international law is that states have the right and responsibility to manage their natural resources sustainably and protect their environment. The Danube case found there was an obligation on nation states to balance national sovereignty with their ecological responsibilities.[14] Ecological jurisprudence is growing in international law to expand these state obligations to the territories they rely upon for constitutional legitimacy.
Academic Costa Avgoustinos proposes that it’s not beyond imagination that an ecological limitation could be interpreted into the Australian Constitution. The argument speculates that government actions that exacerbate climate change may threaten the long-term structural integrity of the Australian constitutional system and be ordered to stop.[15] In other words, it might not seem broke now, but if we don’t fix it, the Constitution itself will break. This illuminates what our agnotology has shielded the nation from for more than two centuries. That legitimate sovereignty depends upon materiality and viable environments for authority—otherwise it’s transcendental nonsense and risks non-existence. The risk of constitutions losing the territory they govern is on our doorstep. In response to sea level rises due to climate change, the Pacific Island nation Tuvalu amended its constitution to enshrine statehood in perpetuity, regardless of physical territory loss. This means even if its land is uninhabitable and its citizens dispersed, Tuvalu remains a state under international law. This is tragically transcendent, but necessary, post-territorial sovereignty. Avgoustinos speculates that limitations against ecological damage by the state could be similar to the precedents set with the established but implied right to political communications, a judicial mashup of Sections 7 and 24.[16] Implying an ecological limitation into our constitution requires no referendum or changes to the written document: it is in the hands of the judiciary.
Climate disasters demand legal realism as an extension of our constitutional imagination. Our constitution needs updating, backdating and time-proofing. We need to uncover our blind spots and dissolve our deliberate ignorance that some argue started in the Enlightenment, some say started with imperial and monotheistic cultures. In Australia it started with invasion and the attempted delinking of First Nations peoples from their Country: their law and sovereignty. Reconciliation of two sovereignties requires facing the dangerous blind spot, the ‘in your face’ reality, that humans—and their imagined and abstract creations like governance and corporations—are existentially dependent upon environments, habitats and materiality. That truth, that no one can deny, needs urgent recognition in our governance to ensure governance itself survives. There is a real and present danger that tech-bro billionaires, AI and climate change will bring all constitutions undone—or make them unenforceable.
Climate change is the calling card of our legally induced ignorance and our constitution’s brokenness. At a time where doomscrolling, billionaires and muzzle velocity snatch our national attention, draining our creativity and connection, imaginative spaces shrink with habitable places. In the six months since I’ve settled in my new home, fires have flared across Western Australia, floods have submerged parts of Central Victoria and extreme heat has blistered all over. Now cyclones are unnaturally creeping south. Disasters unsettle land, communities and ecosystems without regard to laws or the Constitution and are being dangerously normalised. It’s not Country that’s broke but our national laws and fundamental way of relating and being with Country. There is so much more to unpack than our private possessions.
Since the 1990s we still haven’t legally learnt to live with our physical environment. I will move again soon. Last move, running out time, I threw the detritus into the undecided pile. I guess my mouldy 30-year-old constitution sits uncomfortable in my flood-prone basement deep in a box marked ‘to be sorted’. But now it has a companion. A copy of the Uluṟu Statement joins it to haunt the next unpacking. I wonder what the weather will be then. I expect its dignified words will haunt even harder. ‘With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia nationhood.’[17]
•••
First published in Meanjin, Winter 2025.
Notes
1. Keating, Paul, ‘Redfern Park Speech 10 December 1992’, Indigenous Law Bulletin 9 (2001) 5(11)
2. For an understanding of Country see https://www.abc.net.au/religion/our-story-is-in-the-land-indigenous-sense-of-belonging/11159992; Graham, Mary. 1999. ‘Some thoughts about the philosophical underpinnings of Aboriginal worldviews’. Worldviews: Environment, Culture, Religion 3 (2): 105–118; and Watson, Irene. ‘Sovereign Spaces, Caring for Country, and the Homeless Position of Aboriginal Peoples.’ South Atlantic Quarterly, vol. 108, no. 1, 2009, pp. 27–51.
3. Moreton-Robinson, Aileen. The White Possessive: Property, Power and Indigenous Sovereignty, University of Minnesota Press, 2015.
4. Vermeule, Adrian, The Constitution of Risk, Cambridge University Press, 2014
5. Bill McKibben, ‘The World Speeds Up—and We Slow Down’, The New Yorker: https://www.newyorker.com/news/annals-of-a-warming-planet/the-world-speeds-up-and-we-slow-down
6. https://substack.com/home/post/p-156495525
7. Virilio, Paul. Speed and Politics: An Essay on Dromology, translated by Mark Polizzotti, Semiotext(e), 2006 [1977]
8. Shaw, T.A., Miyawaki, O. ‘Fast upper-level jet stream winds get faster under climate change.’ Nat. Clim. Chang. 14, 61–67 (2024)
9. See note 1.
10. Cowlishaw, S. et al. ‘Pandemic Impacts and Experiences after Disaster in Australia: Qualitative Study of Compound Impacts Following the Black Summer Bushfires.’ BJPsych Open 10.2 (2024): e43.
11. Cohen, Felix S. ‘Transcendental Nonsense and the Functional Approach’, Columbia Law Review, vol. 35, no. 6, 1935, pp. 809–849.
12. See https://www.abc.net.au/religion/mary-graham-morgan-brigg-relationalist-ethos/13604298
13. See ulurustatement.org
14. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, Merits, ICJ GL No 92, [1997] ICJ Rep 7, 25 September 1997
15. Costa Avgoustinos, ‘Climate Change and the Constitution: The Case for the Ecological Limitation’ (2023) 49(1) Monash University Law Review 267.
16. Ibid.
17. Ibid at 13.