Australia: ACT to protect the right to a healthy environment, due to climate, pollution and biodiversity loss

That an ACT parliamentary committee has recommended that the right to a healthy environment be inserted into the capital territory's Human Rights Act 2004 (ACT) shows Australian politicians progressing a law necessitated by global developments, such as climate change, that most ignore.

That a local parliament has to consider enacting such rights protections does suggest that the powers that be in this country have strayed from their mandate of serving the community, as the system is obviously jeopardising the environment to the point that it is becoming unfit for people.

Such developments are hardly confined to the Australian Capital Territory though, as on the world stage, the United Nations has twice passed resolutions on the right to a healthy environment: once in October 2021 and again in July 2022.

Indeed, in its impact, the new law is likely to be similar to those that would have resulted from the July 2021 Federal Court ruling that found the environment minister has a duty of care not to harm kids residing in Australia, when approving fossil fuel projects.

But this was shot down on appeal in 2022 by the Morrison government.

And the ACT considering to pass this law is noteworthy, as the territory often passes laws that indicate the progressive way forward for the rest of the country. And it further has significance as parliaments right across the nation are considering Human Rights Acts, including at the federal level.

Human health and wellbeing

“The ACT will be the first Australian jurisdiction to enshrine the right to a healthy environment,” reads the explanatory memorandum to the Human Rights (Healthy Environment) Amendment Bill 2023, which was tabled in parliament on 26 October last year.

“This reflects the government's recognition of the triple planetary threat of climate change, environmental pollution and biodiversity loss and the increasingly urgent need for action,” the document continues.

The ACT government outlines that this is part of its “long-term commitment to protecting human rights”.

In fact, the territory was the first Australian jurisdiction to provide rights protections, besides a handful of obscure ones enshrined in the Australian Constitution.

Victoria and more recently, Queensland have followed the ACT's lead.

But this country remains the only western democracy without rights protections enshrined in federal law, which has on-the-ground consequences for all of us living here, especially in terms of rights-eroding laws being passed.

“Incorporating the right to a healthy environment will ensure that environmental and climate impacts are given proper consideration in the exercise of all public authority functions, including in the development of legislation, policy and decision-making,” the memorandum further makes clear.

Key to all other rights

The bill inserts section 27C into the Human Rights Act 2004, which stipulates that “everyone has the right to a clean, healthy and sustainable environment”, and that “everyone is entitled to enjoy this right without discrimination”.

This, the ACT advises, will serve to ensure better health comes and ecosystems both now and for future generations, as well as encourage stronger environmental laws and governance, improve justice regarding environmental harms and assist First Nations with environmental injustices.

In a 25 January statement, Australian Lawyers for Human Rights (ALHR) welcomed the ACT Standing Committee on Justice and Community Safety recommendation that such a “standalone human right” be passed, as it will require all within the capital territory to be mindful of the environment.

“This is a critical first step towards bringing all Australian jurisdictions in line with the global consensus that a sustainable environment is integral to the full enjoyment of almost every human right protected within the core UN human rights treaties,” said ALHR's Annika Reynolds.

“The climate and environmental crises impacting all Australians must be approached within a human rights framework,” continued the senior cochair of the ALHR environment and human rights committee, who added that this right is essential to guaranteeing all other human rights.

Reynolds also notes that with this current amendment the ACT is continuing to lead the entire continent in progressing human rights compliance, while more that 80 percent of UN member states, or 156 out of 193, have legislated environmental rights.

In terms of some of the rights that are protected in the ACT, but not in NSW right now, as this state doesn't have any protections, the ACT HRA protects the right to life, privacy, movement, freedom from torture, freedom of expression, the right to education and a fair trial, amongst others.

A dearth of protections

The right to a healthy environment is threatened right across the planet at present, as the impacts of the climate emergency become more apparent, and the Israeli government's annihilation of the environment in the Gaza Strip at present, is entirely at odds with this right or a future planet.

Any military actions run counter to the global emissions goals all countries are supposed to be aiming for. Although most nations merely put up an appearance of environmental friendliness and, instead, progress full steam ahead with fossil fuel extraction and use.

That the right to a healthy environment is key to all other rights, as Reynolds points out, doesn't necessarily trigger a necessity to enshrine this right in law in most Australian jurisdictions, as they continue not to protect any of the other rights one might enjoy with a healthy environment.

As Civil Liberties Australia chief executive Bill Rowlings told Sydney Criminal Lawyers last week, the Albanese government's inquiry into federal rights protections is about to report back to the government, which likely means it will recommend that this nation finally protects rights.

CLA has been behind a campaign that began in the last years of the Morrison government, pushing the next Labor administration to enact a HRA. However, the Rudd government held an inquiry two decades ago, and then went on to determine not to pass such an Act.

Rowlings assures that regardless of the federal level, HRA campaigns are underway in all other jurisdictions without protections.

The most prominent are the Human Rights Act for NSW campaign and the push for a Human Rights Act for SA, with an SA parliamentary inquiry now accepting submissions.

The rights expert added that further human rights developments have occurred in the ACT of late, as it amended “it's law, after two decades, to include new rights, permitting conciliation and a tribunal hearing for every clause in the HRA if there is a breach.”

And in terms of the rights protections that already exist in jurisdictions like the ACT, Rowlings said, “Those laws aren't yet perfect, but they are better than no rights protection at all.”

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