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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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The rule of law’s prescription a g a i n s t a r b i t r a r y d e t e r m i n a t i o n s applies equally to the legislature and to constituent bodies. Such laws are general only in a very perverse sense. Thus in countries where t h e r e i s c u l t u r a l diversity, t h e c o n s t i t u t i o n a l p r i v i l e g i n g o f p a r t i c u l a r religions or languages creates serious problems for the rule of law. It is true that people’s lives are more predictable where d i s c r i m i n a t i o n results from pre-announced rules r a t h e r t h a n from t h e momentary will of officials. Much depends on the extent to which t h e discrimination diminishes the life chances of the selected group. The rule of law is m a i n t a i n e d in the longer t e r m not by coercive power but by the people’s fidelity to the law. Hence constitutions and laws that pre-ordain selected groups to lasting deprivation are inherently unstable owing to the loss of fidelity of the d i s a d v a n t a g e d groups, and can be m a i n t a i n e d only by increasingly a r b i t r a r y projections of coercive power. Hence these laws are as subversive of the rule of law, as laws that confer unfettered powers on rulers.

Endogenous threats to constitutional government In countries where constitutional government lacks deep roots, liberty is fragile, and vulnerable to the ambitions of individuals and groups who seek by violent means the rewards of absolute power. In established liberal democracies such as A u s t r a l i a, the prospect of forcible overthrow of the c o n s t i t u t i o n a l order i s remote. However, the freedoms that liberal democracy provides have a tendency to generate endogenous anti-liberal forces. Freedom allows all manner of i d e a s, projects and movements to grow, including those i n i m i c a l to freedom. Unless resisted, they can gradually debilitate constitutional government to the point of irreversible decline. The p a r a d o x of free societies is t h a t they cannot defend themselves by denying basic freedom to its enemies.

Liberal democracies face two common kinds of internal t h r e a t t o constitutional government. The first arises from welfare politics. Under current electoral systems, special interest groups seek, and p o l i t i c a l a s p i r a n t s offer, benefits t h a t v e r y often can be delivered only a t some cost to c o n s t i t u t i o n a l government. A p a r t from direct wealth t r a n s f e r s t h r o u g h the t a x system, g o v e r n m e n t s p u r s u e d i s t r i b u t i o n a l g o a l s t h r o u g h various forms of regulation, such as fair trading and consumer protection laws, competition laws, wage and price fixing, and the myriad licensing schemes. These regulatory devices confer wide discretionary power on officials that seriously derogate from the ideal of government under known and general law t h a t lies a t the h e a r t of c o n s t i t u t i o n a l i s m. T h i s k i n d o f t h r e a t, t h o u g h s e r i o u s, i s manageable, as i t i s possible to convince people that the short term gains they seek cause more harm than good in the longer t e r m. The worldwide trend to economic liberalization s t a r t e d by M a r g a r e t Thatcher, Ronald Reagan and Roger Douglas, and now driven also by the forces unleashed by liberalized world markets, is evidence of this reversal.

The more serious t h r e a t to c o n s t i t u t i o n a l government a r i s e s f r o m f u n d a m e n t a l i s m of various kinds. I do not mean, by f u n d a m e n t a l i s m, deep conviction about a particular worldview, philosophy or f a i t h, whether t h a t b e Christian, Islamic, Buddhist or secularist. I employ the term “fundamentalist” to describe a person who not only has an unshakeable conviction in the rightness of his position, but also thinks that his view is so compelling and uncontestable that any competing view must be silenced, if not by persuasion, then by subtle coercion or brute force.

I learnt liberalism and the value of the rule of law very early in my life from a m a n w h o h a d n o t r e a d a n y o f t h e g r e a t l i b e r a l p h i l o s o p h e r s. He dedicated a major part of his life to the study and practice of the Buddhist doctrine that he embraced without reservation. He devoted another part of his life to politics, in defence of the rule of law and f u n d a m e n t a l freedoms for all persons, p a r t i c u l a r l y the freedom to p r a c t i c e o t h e r f a i t h s and cultures. He was not a f u n d a m e n t a l i s t in my lexicon. The 13 th Century churchmen who ordered a n d c a r r i e d out t h e I n q u i s i t i o n w e r e f u n d a m e n t a l i s t s. The M a r x i s t s who pursued the goal of t h e C o m m u n i s t u t o p i a a t t h e c o s t of lives and liberties of many millions w e r e f u n d a m e n t a l i s t s. The F a s c i s t s who, following Hegel, deified t h e state as the ultimate good, were fundamentalists. The Al Qaeda terrorist group, and similar groups who wage holy war against infidels, are fundamentalists.

There is a new f u n d a m e n t a l i s m t h a t t h r e a t e n s the liberal c o n s t i t u t i o n a l order. I t is Green f u n d a m e n t a l i s m. I do not mean by Green f u n d a m e n t a l i s m, genuine concern about the environment, and the desire to seek rational, balanced and scientifically sound solutions to environmental problems. R a t h e r I r e f e r t o the growing intellectual movement t h a t espouses a p a r t i c u l a r vision of t h e n a t u r a l world, and relentlessly pursues t h e r e a l i z a t i o n o f t h a t v i s i o n by legal and illegal means, where necessary by overriding t h e m o s t f u n d a m e n t a l r i g h t s and liberties of the citizen. It is vocal in the advocacy of its point of view and insensible to other views. I t h a s been spectacularly successful in elevating i t s m e s s a g e t o t h e p o s i t i o n o f a f a i t h t h a t o t h e r s m a y n o t q u e s t i o n w i t h o u t being branded anti-social. It has skewed public discussions in a way that has stifled opposing views.

I a m not suggesting t h a t the issues t h a t environmentalists r a i s e a r e trivial. This debate is not about the need to protect the environment, but about rational responses to the problems. It is estimated, for example, that the total cost of global warming could be as much as US$ 5 trillion. Yet, as Bjorn Lomborg in his much reviled but unrebutted book, T h e S k e p t i c a l E n v i r o n m e n t a l i s t, points out, some of the solutions suggested could cost the world trillions, and even tens of trillions, of dollars over and above the global w a r m i n g c o s t. 5 T h i s i s money that, in the form of investment, could raise billions of people out of poverty and drive t h e i r societies to levels of prosperity t h a t make environmental improvements affordable.

Lomborg is no l i b e r t a r i a n c a p i t a l i s t ideologue. He is a left leaning statistician whose thesis is uncompromisingly grounded in data that even WWF, Greenpeace and the Worldwatch Institute largely accept. When he speaks of t h e bias in the environmental debate, i t is worth listening. He asks why global w a r m i n g i s not discussed w i t h an open a t t i t u d e but w i t h a fervor b e f i t t i n g p r e a c h e r s. H e t h i n k s t h a t t h e answer is “ t h a t global w a r m i n g is not j u s t a

–  –  –

The main concerns Environmental law is one of t h e f a s t e s t g r o w i n g a r e a s of the legal system. I t comprises a vast body of statute law that includes Acts of Commonwealth and S t a t e P a r l i a m e n t s, s u b o r d i n a t e legislation in the form of regulations, orders and decrees, and case law interpreting these provisions. There are r i s i n g concerns within primary and manufacturing industries, as well as scientific and legal communities, that the processes of environmental policy f o r m u l a t i o n a n d i m p l e m e n t a t i o n are leading to outcomes having seriously negative impacts on i n d i v i d u a l p r o d u c e r s, i n d u s t r i e s, local and n a t i o n a l economies, civil liberties, the rule of law and on sustainable environmental protection.

In its August, 2004 Report on T h e I m p a c t s o f V e g e t a t i o n M a n a g e m e n t a n d B i o d i v e r s i t y Regulations, the P r o d u c t i v i t y Commission acknowledged t h e v a l i d i t y of many of these concerns, and made recommendations t h a t i n effect require the r a d i c a l re-evaluation of the philosophy and processes of environmental regulation in Australia. The Commission’s report highlighted the

following serious defects in the current regulatory system:

• Lack of cost-benefit assessments before regulations are made, and t h e absence of on-going monitoring and independent reviews of costs a n d benefits once the regulations are in operation.

• The poor quality of d a t a and science on which native vegetation a n d biodiversity policy decisions are based.

• Inadequate use of the extensive knowledge of landholders and local communities in the formulation of policy and regulations.

• The failure to take account of regional environmental characteristics and a g r i c u l t u r a l p r a c t i c e s in imposing across-the-board rules, p a r t i c u l a r l y in relation to native vegetation regrowth.

• Serious i m p e d i m e n t s to p r i v a t e conservation measures, including t a x distortions and regulatory barriers to efficient farm management.

• The imposition on landowners of the cost of wider conservation goals demanded by society.

The Productivity Commission’s report deals only with native vegetation and biodiversity issues. However, many of its findings are relevant to environmental law and policy generally. There are also other fundamental issues t h a t c a l l f o r investigation.

Utopian, apocalyptic and evolutionary theories of conservation Environmental policy a t Commonwealth and S t a t e levels does not reveal a coherent theory or philosophy of conservation in Australia. Instead, the field has become a battleground for radical environmentalists and other interest groups affected by conservation policies. While this kind of contest is both natural and desirable in a democracy, i t can and often does overlook the f u n d a m e n t a l questions that need to be addressed.

N a t u r e is dynamic, not s t a t i c. Ecosystems, the organic world, h u m a n societies and c u l t u r e i t s e l f a r e e m e r g e n t c o m p l e x s y s t e m s. They are a d a p t i v e, a n d i t i s a r g u a b l e t h a t t h e y have no teleological or p r e - o r d a i n e d i d e a l s t a t e s.

The planet itself, according to this view, has no ideal state. If there is an ideal state, it is important to know what that is and why that state is ideal. In such

a world, the following questions, among others, become fundamental:

• What things should be preserved?

• Why should they be preserved as against other things?

• What things can be preserved?

• In what form should things be preserved?

• In what ways should we seek to preserve what we must preserve?

Environmental f u n d a m e n t a l i s t s tend to apply two inter-related a n d complementary theses to these questions. One is inspired by the utopian vision of the world as an idyllic Garden of Eden that is an end in itself. Alternatively, it regards Earth in all its physical and biological complexity as a super-organism called Gaia.

The Gaia Hypothesis, f o r m u l a t e d by James Lovelock in the mid-1960s, proposes t h a t our planet functions a s a single o r g a n i s m t h a t m a i n t a i n s conditions necessary for i t s survival. This hypothesis is by no means s u b s t a n t i a t e d, but h a s become the i n s p i r a t i o n of the r o m a n t i c and r a d i c a l elements within the environmental movement. As a hypothesis about the nature of the complex system that is Earth, it cannot do much harm. However, there is a tendency among Gaia believers to deify the concept, and to subordinate t h e interests of all beings to the wellbeing of Gaia, about which they claim to have superior knowledge. The G a i a t h e s i s leads believers to the apocalyptic t h e s i s.

According to t h i s view, h u m a n societies have acquired the technological c a p a b i l i t y of destroying the balance t h a t s u s t a i n s Gaia, and unless t h i s capability is controlled, Gaia and all that lives within are doomed.

There are highly respected scientific opinions that challenge environmental f u n d a m e n t a l i s m. T h e d e a r t h o f d i s p a s s i o n a t e a n d o b j e c t i v e d i s c u s s i o n o f these questions is unfortunate, and may prove catastrophic to humanity and the very environment that we seek to protect.

A problem with the vegetation management legislation in Australia is that i t i s d e s i g n e d o n t h e a s s u m p t i o n t h a t e c o s y s t e m s a r e s t a t i c. T h e overwhelming goal of these laws is the protection of “ r e m n a n t ” vegetation and o t h e r ecosystems thought to be necessary for biodiversity. They take no account of the f a c t t h a t trees regrow and forests thicken. They do not acknowledge t h a t ecosystems will change in the short term depending on how areas are managed (for example, with or without fire, with or without grazing), and that in the longer term ecosystems change and adapt to climate change.

Since natural systems are dynamic, prohibiting land management and tree clearing will result in forest encroachment and woodland t h i c k e n i n g t h a t w i l l impact on biodiversity and surface water runoff. It will not be a case of holding the landscape in some sort of precautionary stasis. The full implementation of the vegetation management laws of Queensland is likely to be general woodland thickening across approximately 50 million hectares of Queensland. 7 B i l l B u r r o w s, a h i g h l y respected environmental scientist who h a s spent a professional l i f e t i m e investigating these questions, is worth quoting on these


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