Constitutions and the Environmental Rule of Law

Woven into the fabric of the Australian Constitution is the rule of law. The most immediate manifestation of the rule of law is the principle of legality. However, in Australia the fundamental rights, freedoms, immunities, principles and values that the principle of legality purports to protect from legislative intrusion rarely extends to environmental rights, freedoms, principles and values. This may be because, unlike the constitutions of other countries such as India, Pakistan, South Korea, Indonesia and the Philippines, environmental rights are not recognised in the Australian Constitution. Such rights typically include the right to a healthy environment and the right to life, especially where the latter is construed as including the former. This paper explores the extent to which express constitutional enshrinement of environmental rights in fact leads to improved environmental outcomes.