Explainer: Right to a healthy environment, developments in Australia

Tahlia McDonald

While the United Nations General Assembly has recognised the right to a healthy environment as a human right, the Australian Government is yet to do so. In this regard, Australia lags behind many on the international stage, with the right to a healthy environment already recognised in constitutional or legislative texts in 80 per cent of United Nations member states.

(UN General Assembly 2022, Human Rights Council 2020)

Human rights protections in Australia

Australia's legal framework for protecting human rights is partial, patchy and incomplete. As noted by the Australian Human Rights Commission (AHRC):

"Australia does not adequately protect human rights at the present time. Australia has a patchwork legal framework of human rights protection. The rights that are protected are located in scattered pieces of legislation, the Constitution and the common law. It is incomplete and piecemeal." (2022, p11).

The adequacy of Australia's framework to protect human rights is currently under review by a Parliamentary Committee. This provides an important opportunity for Australia's human rights system to be brought into line with our international human rights obligations, and for the many interconnections between human rights and environmental challenges to be recognised.  

The Parliamentary Joint Committee on Human Rights is seeking comments on whether Australia needs a Human Rights Act, and whether this should reflect a a model proposed by the AHRC. In its 2022 Position Paper, the AHRC recommends that any Human Rights Act should include at least 28 rights, including the right to a healthy environment.

As explained by the AHRC, this right would mean that a person has "the right not to be subject to unlawful pollution of air, water and soil" and "the right to access safe and uncontaminated water, and nutritionally safe food"(p372).

What is the right to a healthy environment based on?

The AHRC Position Paper reflects a broader trend in understanding of human rights internationally. In 2022, the UN General Assembly recognised that access to a clean, healthy, and sustainable environment is a universal human right, flowing from other rights including the right to life, the right to health and the right to an adequate standard of living.

The right to life is recognised in the International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee has noted that the right to life “depends…on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors” (2019). Australia is legally bound by the terms of the ICCPR, having ratified the Convention in 1980.

The right to a healthy environment is also based on the rights to health and to an adequate standard of living expressed in the International Covenant on Economic, Social and Cultural Rights (ICESCR) (AHRC p125). Australia signed the ICESCR and ratified it without reservations in the 1970s. The Committee on Economic and Social Rights has repeatedly recommended that the ICESCR be implemented into Australian law. The AHRC argues that ICESCR rights are essential to addressing the impact of climate change on the most vulnerable groups of society.

In August 2023, the UN Committee on the Rights of the Child, responsible for stewarding the Convention on the Rights of the Child, issued a comment on the rights of children and the environment, with a special focus on climate change. In this, the Committee acknowledged that:

"A clean, healthy and sustainable environment is both a human right itself and necessary for the full enjoyment of a broad range of children's rights."

Australia, along with nearly every country in the world, has ratified the Convention on the Rights of the Child. It is likely that increasingly, other UN mandate holders will recognise the relevance of the right to a healthy environment to other thematic issues.

If the AHRC proposal gets up, what positive steps would it require from government?

If legislated, a federal Human Rights Act along the lines proposed by the AHRC would create a positive duty for the federal government to act in alignment with the expressed rights, and to consider those rights when making decisions. Compliance with this duty would be judicially reviewable. The requirement for decision makers to consider human rights at an early stage should help to prevent potential breaches from occurring. Where breaches do occur, a legal course of action would be available, to enable review and remedy.

The AHRC recommends that legal change should be supported by a series of intensive measures to ensure cultural change within public authorities, and to support a fluent understanding of the Act, including:

·      A government-wide education program.

·      Ongoing educational requirements.

·      The establishment of permanent, dedicated internal departmental teams with human rights expertise responsible for consultation and education.

·      Creation of human rights action plans by federal departments and agencies.

·      Annual reporting requirements.

The AHRC proposes that if a court finds a parliamentary intention to override any of the rights contained in the Act, the Attorney-General should be required to trigger a process for reviewing the law in question.

The Commission also proposes that the Act include an overarching ‘participation duty’. This would require public authorities to ensure participation from First Nations peoples, children, and people with disability in relation to policies and decisions that directly or disproportionately affect their rights. This proposal draws on international human rights law standards and common law procedural fairness principles.

What decisions could be reviewed?

The AHRC doesn’t provide any examples of decisions that could potentially be reviewed in regard to the right to a healthy environment. However, it does give two examples that demonstrate the positive duty to consider other human rights:

·      “When making decisions about residential or disability care placements, a public authority may need to consider circumstances specific to the individual – such as whether they would be able to practise their religion in the care facility.”

·      “When making decisions about housing, whether accommodations may be needed to realise the individual’s right to privacy in accordance with their particular circumstances” (AHRC p139).

What right of remedy/recourse would be created?

Under the model proposed by the AHRC, if a public authority has allegedly breached its positive duty, a person could:

·      make a complaint to the Commission; 

·      initiate proceedings in the Federal Court or the Federal Circuit and Family Court;

·      rely on the rights under the Human Rights Act in other legal proceedings.

If a person is seeking to review a decision made by a public authority, they may be able to do so via a direct cause of action under the Act, or via ordinary judicial review pathways.

The AHRC states that “all unlawful actions under the Human Rights Act should give rise to a cause of action”, in accordance with international law (p268). The AHRC also asserts that the Act should allow the raising of the expressed rights in the context of another legal proceeding, for example a discrimination or criminal claim. Furthermore, the Commission recommends that the remedies available under the Act should be in line with those available under federal discrimination law, such as:

·      Injunctions.

·      Orders requiring action.

·      Declaratory relief.

·      Monetary damages.

·      Administrative law remedies.

What doesn’t the proposed right to a healthy environment cover?

The right to a healthy environment proposed by the AHRC is very much focused on health, and not the broader issues involved in a just transition – where consideration is given to ensuring that benefits of the transition into the green economy are distributed, and people are not left behind in the energy transition. However, aspects of just transition principles would be covered by the 'participation duty' proposed by the AHRC.

The positive duty to act in alignment with the right to a healthy environment would only applicable to public authorities. However, private businesses, non-government organisations and contractors that have “functions of a public nature and are exercising those functions on behalf of government” could be covered, when they carry out public functions (AHRC p20).

The AHRC proposal includes an ‘opt-in’ clause for private entities to voluntary accept responsibility to comply with the Act. The AHRC notes that private entities could be incentivised to do so, if they are given preference in Government tenders and contracting processes, or by tying federal funding with contractual requirements to comply.

You can follow the progress of the Parliamentary Inquiry here.