In a momentous step towards recognising the right to a healthy environment, ACT Minister for Human Rights, Tara Cheyne MLA, has introduced a bill to amend the territory’s Human Rights Act 2004 to include the right to a clean, healthy and sustainable environment.
It is the first time the right to a healthy environment will be recognised as a standalone human right in Australia.
Legislating the right to a healthy environment recognises that we all need a healthy environment to thrive and live happy, healthy lives. It also recognises that despite existing environmental laws and systems, Australians are witnessing unacceptable levels of harm to our natural environment and human health from pollution, unsustainable development practices, destruction of significant First Nations’ cultural heritage, and climate change. Environmental harm has a disproportionate impact on overburdened people and communities – such as First Nations, older people, young people, women, and people with a disability – who are most at risk of environmental harm, but who are often least responsible for such harm.
EDO has advocated for the recognition of the right to a healthy environment in Australia for over 20 years, since a Bill of Rights was first considered for the ACT in 2002.i This Bill was introduced following extensive public consultation, of which EDO played an important part, and EDO commends the ACT Government for this important reform.
As noted in our report, A Healthy Environment is a Human Right, it is well beyond time to enshrine the right of all Australians to live in a clean, healthy and sustainable environment in law. With the introduction of the Human Rights (Healthy Environment) Amendment Bill 2023 into the ACT Parliament, an important first step has been taken, and EDO calls on governments at all levels to follow suit. This legal update provides an overview of the right to a healthy environment, and analyses key changes implemented by the bill.
The right to a healthy environment
The right to a healthy environment was first recognised internationally over 50 years ago, in the 1972 Stockholm Declaration.ii However, it is important to acknowledge that the foundations of the right to a healthy environment come from the cultural knowledges and traditions of Indigenous Peoples around the world, including First Nations Peoples’ cultural knowledges and traditions,iii which have existed in Australia for over 60,000 years.
On 22 July 2022, the United Nations General Assembly (UNGA) adopted a resolution by an overwhelming majority to declare access to a clean, healthy and sustainable environment, to be a universal human right.iv Australia was one of 160 UN Members States who voted in favour. However, despite voting in favour of the UNGA resolution, Australia is among the minority 20% of UN Member States that do not expressly recognise the right to a healthy environment in their laws.
The Special Rapporteur on Human Rights and the Environment has defined the right to a healthy environment to include the following substantive elements:v
- clean air,vi
- a safe climate,vii
- access to safe drinking water and sanitation,viii
- healthy biodiversity and ecosystems,ix
- toxic free environments in which to live, work and place,x and
- healthy and sustainably produced food.xi
The Special Rapporteur recognises that it is not possible to recognise and implement the right to a healthy environment, and its substantive elements, without also implementing the corresponding procedural elements. xii The procedural elements include the right to information, the right to participate in decision-making, and access to justice.xiii
When introducing the Bill, Ms Cheyne MLA, acknowledged the triple planetary crisis of climate change, biodiversity loss and pollution, which the UN High Commission for Human Rights has described as the “single greatest challenge to human rights in our era”.xiv This statement recognises the interdependence between the environment and human health.
In Australia, and within the ACT, we have a variety of laws, systems, and processes that protect components of our environment, and our human rights, to some extent. However, it is likely that both existing Commonwealth and ACT laws do not satisfy all of the Commonwealth or ACT Governments’ obligations under international human rights law as they relate to the enjoyment of healthy environment. In both our submission to ACT Government on the right to a healthy environment and our submission to the Parliamentary Joint Committee on Inquiry into Australia’s Human Rights Framework, we provide detailed analysis of state of existing laws in protecting this right.
It is clear that existing laws are not doing enough to fulfill our right to a healthy environment. The 2021 Australia State of the Environment Report and other independent reviews into Australian environmental law – such as Professor Graeme Samuel AC’s review into the Environment Protection and Biodiversity Conservation Act 1999 (Cth) – have identified that stronger environmental laws are urgently needed to address future trajectories of environmental decline.
This is why the recognition of the right to a healthy environment is so important – it puts people at the centre of the problem.
In the Bill, the right is expressed broadly and in the same terms as the UNGA Resolution. EDO commends the ACT Government for defining the right to a healthy environment broadly, as it will allow the right to evolve and develop consistently with international law.
Below we outline how the new provisions will operate, and make recommendations for the continued improvement and expansion of the right under ACT law.
Enforceability of the right and direct action to the Supreme Court
Under the Act, public authorities will have obligations to comply with the right to a healthy environment, including in the scrutiny of new Billsxv and the requirement to check new bills for compatibility with the right.xvi Under the Act, the Supreme Court also has the ability to issue a declaration of incompatibility where a law cannot be interpreted to be compatible with the right to a healthy environment.xvii
However, the direct statutory right of action to the ACT Supreme Court for a breach by a public authority will not apply to this right. This means if a public authority breaches an individual’s right to a healthy environment, they will have limited options for bringing a complaint to enforce the right. EDO notes that the Human Rights (Complaints) Legislation Amendment Bill 2023, which was recently introduced to the ACT Legislative Assembly, will allow individuals to bring complaints to the ACT Human Rights Commission for conciliation. However, as it is not possible to bring a complaint to the ACT Civil and Administrative Tribunal under the Act, if conciliation fails there will be no avenue to review that decision.
The Bill promotes and complements other substantive rights contained in the Act, by providing for the protection of the environment to contribute and promote human wellbeing for current and future generations. The right to a healthy environment may also be seen as an aspect to other rights contained in the Act including the right to lifexviii, right to privacy, family and homexix and the cultural rights of Aboriginal and Torres Strait Islander peoples.xx The Bill clarifies that even though there is no direct statutory recourse to the Supreme Court, this will not affect the ability to take action and make a claim in relation to breaches of other related rights. However, the Bill is silent as to how the right to a healthy environment promotes the procedural rights of access to information and participation in decision-making, both of which are protected under the Act to some extent.xxi Access to justice is not protected under the Act at all. As noted above, the procedural elements are necessary for the recognition of the substantive elements. Accordingly, access to the courts recognised in legislation, is important for the enforceability of the right to a healthy environment.
The Bill provides for a mandatory five-year statutory review period for the new insertions in the Act, including the statutory limit on bringing a direct action to the Supreme Court. Given the imminent triple planetary crises and impact these crises are having on Australians today, and the limited guarantee that a review would result in the removal of the limit, this is not satisfactory. The Bill should be amended to make the right justiciable now, by removing any limit to bringing a direct action to the Supreme Court and review that arrangement in five years’ time (Recommendation 1).
The need for further reform
As noted above, the procedural elements of the right to a healthy environment are crucial for achieving recognition of the substantive elements. Access to justice is a key procedural element of the right to a healthy environment, as it ensures people who suffer harms or breaches of their rights can access remedies. Crucially, this includes access to the courts. In EDO’s submission to the ACT Legislative Assembly Inquiry into Petition 32/21 (No Rights Without Remedy), we identified the main barriers to access to justice for human rights matters in the ACT and made several recommendations to improve access to justice. A key recommendation is that if a human rights complaint cannot be resolved through the ACT Human Rights Commission, proceedings regarding breaches of the Act may be initiated in the ACAT. This will ensure complainants will have access to accessible and appropriate remedies for breaches of their human rights (Recommendation 2).
EDO strongly believes that individuals should have access to review rights at both ACAT and the ACT Supreme Court should they not be able to resolve their human rights complaints through conciliation with the ACT Human Rights Commission.
Evidence from decades of experience in other countries that already recognise the right to a healthy environment shows that express recognition of the right to a healthy environment will be a catalyst for several important benefits to human health and the environment. EDO is pleased to see the ACT Government paving the way in Australia towards achieving better outcomes for our environment and health in Australia.
We have recommended some minor changes to the Bill that will strengthen the right to a healthy environment and improve access to justice for people seeking to enforce their right. EDO calls on the Commonwealth Government to follow suite and recognise the right in a national charter of human rights. EDO will continue to advocate for a right to a healthy environment that is strong and enforceable, and for better access to justice for all.
i Hanna Jaireth, Environmental Defenders Office ACT Inc., Submission on the Need for an ACT Bill of Rights (Submission #61, Bill of Rights Consultive Committee, 2002).
ii Stockholm Declaration on the Human Environment: Report of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14 and Corr.1 (16 June 1972).
iii Maria Antonia Tigre, ‘Exploring the Bedrock for Earth Jurisprudence’ (2021) 22(2) Rutgers Journal of Law & Religion 223, 265–270.
iv General Assembly resolution A/RES/76/300, 28 July 2022.
v See David R Boyd, Special Rapporteur on Human Rights and the Environment, Right to a Healthy Environment: Good Practices, UN DOC A/HRC/43/53 (30 December 2019).
vi David R Boyd, Special Rapporteur on Human Rights and the Environment, Issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc A/HRC/40/55 (8 January 2019).
vii David R Boyd, Special Rapporteur on Human Rights and the Environment, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc A/74/161 (15 July 2019).
viii David R Boyd, Special Rapporteur on Human Rights and the Environment, Human rights and the global water crisis: water pollution, water scarcity and water-related disasters, UN Doc A/HRC/46/28 (19 January 2021).
ix David R Boyd, Special Rapporteur on Human Rights and the Environment, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc A/75/161 (15 July 2020).
x David R Boyd, Special Rapporteur on Human Rights and the Environment, The right to a clean, healthy and sustainable environment: non-toxic environment, UN Doc A/HRC/49/53 (12 January 2022).
xi David R Boyd, Special Rapporteur on Human Rights and the Environment, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc A/76/179 (19 July 2021).
xii David R Boyd, Special Rapporteur on Human Rights and the Environment, Right to a Healthy Environment: Good Practices, UN DOC A/HRC/43/53 (30 December 2019) 5-8.
xiii David R Boyd, Special Rapporteur on Human Rights and the Environment, Right to a Healthy Environment: Good Practices, UN DOC A/HRC/43/53 (30 December 2019) 5-8.
xiv UN Office of the High Commissioner on Human Rights, ‘Environmental Crisis: High Commissioner Calls for Leadership by Human Rights Council Member States’ (Web Page, 13 September 2021).
xv Human Rights Act 2004 (ACT) s38.
xvi Ibid s 37.
xvii Ibid s 32
xviii Human Rights Act 2004 (ACT) s9.
xix Ibid s12.
xx Ibid s 27(2).
xxi Ibid ss 19(2), 17(a).