The ACT Government has released a Discussion Paper regarding a 'Right to a Healthy Environment' as part of a 'public consultation to inform consideration of the introduction of a right to a healthy environment in the Human Rights Act 2004 (ACT)'.
The paper states that the ACT Government committed to considering the inclusion of a ‘right to a healthy environment’ in the Act and is accordingly seeking 'community views on how the right to a healthy environment could be included in the Human Rights Act and what the content of the right could be'.
In particular, the community is being asked to provide feedback on the following:
• How could we define the right to a healthy environment?
• What duties could be included for the Government and private entities to ensure respect for individuals’ right to healthy environment?
• What additional measures could be considered to ensure protection of the right to healthy environment for vulnerable groups?
• How could the right to a healthy environment recognise the importance of ‘country’ for Aboriginal and Torres Strait Islander people?
• How could the Government go about fulfilling the right to a healthy environment?
It comments
The Human Rights Act provides statutory protection of human rights in the ACT. The ACT was the first jurisdiction in Australia to enact a legislative charter of human rights. Similar legislation was subsequently introduced, first in Victoria (Charter of Human Rights 2006 (Vic)) and then in Queensland (Human Rights Act 2019 (Qld)). Australia does not have a national charter of human rights.
The Human Rights Act protects a number of civil and political rights as well as some economic, social and cultural rights (ESC rights). These rights are primarily drawn from the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Public authorities are required to act consistently with human rights recognised in the Act and individuals have a right of action in the Supreme Court for failure to act consistently with human rights.
The Human Rights Act recognises that human rights may be subject to reasonable limitations that can be demonstrably justified in a free and democratic society. In addition, economic social and cultural rights have aspects that are immediately realisable, and aspects that must be progressively realised by the Government over time, and subject to available resources.
If introduced into the Human Rights Act, a right to a healthy environment would give rise to certain general obligations that would require immediate action by the Government. In addition, there would be an obligation on the Government to take further positive measures to improve the enjoyment of the right via appropriate means and within available resources. It would also require the Government not to take backwards steps that would reduce protection of the right. These aspects of the right would also be subject to reasonable limitations.
Human rights vs rights of nature
The Human Rights Act provides that only individuals have human rights (section 6). This aligns with the international human rights law principle that human rights are held by all people by virtue of being human. xx Commentary on environmental rights suggests that nature and natural phenomena such as rivers, lakes and trees share the right to exist and that the rights of nature should be protected in the same way as the rights of humans. However, the present exploration of whether to include a right to a healthy environment in the Human Rights Act excludes consideration of the rights of nature and non-human species in their own right.
In practice, the proposed regime might not amount to much. The paper states
The Human Rights Act contains procedural obligations on public authorities aimed at safeguarding human rights. This includes the obligation on public authorities to give proper consideration to human rights when making decisions, and the requirement for the Attorney-General to inform the public about human rights impacts through compatibility statements presented with new legislation to the Legislative Assembly.
It may be complicated to include additional procedural rights specific to the right to a healthy environment in the Human Rights Act. This might lead to inconsistencies with specific obligations and remedies within existing Territory and Commonwealth environment laws. This would also be inconsistent with the way that other human rights are protected in the Human Rights Act.
Human Rights Act procedures for ‘enforcing’ human rights
The Human Rights Act in section 40C provides a cause of action in the Supreme Court against a public authority where the public authority has failed to act consistently with human rights or has failed to properly consider human rights in accordance with the duty in Section 40B.
Decision makers are also required to interpret laws consistently with human rights as far as possible to do so consistent with the purpose of the law. The Supreme Court may issue a declaration of incompatibility where a law cannot be interpreted to be compatible with human rights. Where such a declaration is issued it does not invalidate the law but allows it to be considered further by the Legislative Assembly. Recognition of a right to a healthy environment would ensure the right is considered as part of government decision-making and given effect through human rights compatible legislation, policy and practice.
Importantly, inclusion of a right to a healthy environment would not require public authorities to provide all Canberrans with a healthy environment in all circumstances.
Indeed
Rather public authorities would have to demonstrate that they have properly considered the right and that any limitations on the right to a healthy environment are authorised by law and are justifiable as necessary, proportionate and reasonable in accordance with section 28 of the Human Rights Act. ...
When it comes to substantive aspects that form part of the right to a healthy environment, according to the UN Special Rapporteur, these would include:
o clean air;
o a safe climate;
o access to safe water and adequate sanitation;
o healthy and sustainably produced food;
o non-toxic environments in which to live, work, study and play; and
o healthy biodiversity and ecosystems.
Within each of the substantive areas there is a body of existing international environmental law, which is given effect nationally through inter-governmental agreements between the Commonwealth, states and territories. For example, actions taken by ACT Government agencies relating to ensuring non-toxic environments are based on the extensive body of international law that addresses pollution and toxic substances including the Basel, Rotterdam and Stockholm Conventions.
The paper refers superficially to 'rights of nature' but fortunately does not grapple with questions about personhood for the environment or specific domains. It dances around the wide range of existing ACT environment legislation and ACT government environment strategies, alongside little engagement with the relationship with Commonwealth legislation (a weakness evident in the proposal for a Four Day Week).
