The right to a healthy environment in Australia

Revel Pointon, Justine Bell-James

Abstract


While Australia does not have human rights enshrined in our Constitution, and only limited reflection through other federal laws, various states have introduced legislation that seeks to recognise and protect human rights. As the dialogue around legal protection of human rights in Australia grows, where does the right to a healthy environment sit in this discussion? The right to a healthy environment has been integrated into over 150 legal frameworks around the world; Australia remains one of only 15 countries without the right to a healthy environment enshrined in our federal laws or constitution. This article reviews how the right has been both characterized and put into practice overseas, with a view to determining how Australian jurisdictions could benefit from this right being legislated

Full Text:

PDF

References


Reference List

A Articles/Books/Reports

Asia Pacific Forum, Human Rights and The Environment (Background Paper, 24-27 September 2007)

Australian Conservation Foundation, World Wildlife Fund, The Wilderness Society and The University of Queensland, Fast-tracking Extinction: Australia's National Environmental Law (Report, 2018)

Australian Panel of Experts on Environmental Law, The Future of Australian Environmental Laws (Overview Paper, 2017)

Australian Panel of Experts on Environmental Law, Democracy and the Environment (Technical Paper 8, 2017)

Barbu, Ilie Adrian, ‘The Right to a Healthy Environment – between a Basic Human Right and a Policy of Form without Substance’ (2016) 52(1) Revista de Stinte Politice 14

Boyd, David, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (UBC Press, 2011)

Bratspies, Rebecca, ‘Claimed Not Granted: Finding a Human Right to a Healthy Environment’ (2017) 26 Transnational Law and Contemporary Problems 263

Brett Young, Michael, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (Review, 2015)

Chakaraborty, Jayajit and Donna Green, ‘Australia’s First National Level Quantitative Environmental Justice Assessment of Industrial Air Pollution’ (2014) 9(4) Environmental Research Letters 1

Collins, Lynda and David Boyd, ‘Non-Regression and the Charter Right to a Healthy Environment’ (2016) 29(1) Journal of Environmental Law and Practice 285

Cooper, Nathan, Donna, Green, Marianne, Sullivan and David, Cohen, ‘Environmental Justice Analyses May Hide Inequalities in Indigenous People’s Exposure to Lead in Mount Isa, Queensland’ (2018) 13(1) Environmental Research Letters 8

Department of Environment and Energy, State of the Environment (Report, 2016)

Dobbie, Brendan and Green, Donna, ‘Australians Are Not Equally Protected from Industrial Air Pollution’ (2015) 10(5) Environmental Research Letters 1

Gunther, Handl, “Human Rights and Protection of the Environment: A Mildly Revisionist View” in A. Cançado Trindade (ed), Human Rights and Environmental Protection (1995) 117

Human Rights and Equal Opportunity Commission, Human Rights and Climate Change (Background Paper, April 2008)

Hillebrecht, Anna, ‘Disrobing Rights: The Privilege of Being Human in the Rights of Nature Discourse’ (2017) 6 Rachel Carson Center Perspectives 15

Knox, John, ‘The Global Pact for the Environment: at the Crossroads of Human Rights and the Environment’ (2019) 28(1) Review of European, Comparative & International Environmental Law 40

Knox, John H and Pejan, Ramin (eds) The Human Right to a Healthy Environment (Cambridge University Press, 2018)

Kolodizner Irina, ‘The Charter of Rights Debate: A Battle of the Models’ (2009) 10(1) Australian International Law Journal 219

Lewis, Bridget, Environmental Human Rights and Climate Change: Current Status and Future Prospects (Springer, 2018)

Maloney, Michelle, ‘Rights of Nature, Earth democracy and the Future of Environmental Governance’ in The Green Institute Rebalancing rights: Communities Corporations and Nature (Report, March 2019) 11

Parliament of Australia, Environment and Communications References Committee: Australia’s Faunal Extinction Crisis (Interim Report, 2019)

Queensland Government, Queensland Climate Adaptation Strategy: Human Health and Wellbeing Climate Change Adaptation Plan for Queensland (Sector Adaptation Plan, 2018)

Rose, Deborah Bird, Nourishing Terrains: Aboriginal Views of Landscape and Wilderness (Australian Heritage Commission, 1996)

Woinarski, John CZ, Sarah Legge, Sarah, James A Fitzsimons, Barry J Traill, Andrew A Burbidge, Alaric Fisher, Ron SC Firth, Iain J Gordon, Anthony D Griffiths, Christopher N Johnson, Norm L McKenzie, Carol Palmer, Ian Radford, Brooke Rankmore, Euan G. Ritchie, Simon Ward and Mark Ziembicki, ‘The Disappearing Mammal Fauna of northern Australia: Context, Cause, and Response’ (2011) 4(3) Conservation Letters 192

Zhang, Ying, Paul Beggs, Hillary Bambrick, Helen L Berry, Martina K Linnenluecke, Stefan Trueck, Robyn Alders, Peng Bi, Sinead M Boylan, Donna Green, Yuming Guo, Ivan C Hanigan, Elizabeth G Hanna, Arunima Malik, Geoffrey G Morgan, Mark Stevenson, Shilu Tong, Nick Watts, Anthony G Capon, ‘The MJA-Lancet Countdown on Health and Climate Change: Australian Policy Inaction Threatens Lives’ (2018) 209(11) Medical Journal of Australia-Lancet 474

B Cases

Ashgar Leghari v Federation of Pakistan (W.P. No. 25501/2015), Lahore High Court Green Bench, Orders of 4 Sept and 14 Sept 2015

Court of Appeal of The Hague, The State of the Netherlands (Ministry of Infrastructure and the Environment) v Urgenda Foundation, C/09/456689 / HA ZA 13-1396, 9 Oct. 2018,

Demanda Generaciones Futuras v Minambiente (2018) STC4360-2018 (unofficial translation)

New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] QLC 24

Taskin v Turkey [2004] Eur Court HR 179

C Legislation

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Human Rights Act 2004 (ACT)

Human Rights Act 2018 (Qld)

National Environment Protection (Ambient Air Quality) Measure 2015 (Cth)

D Treaties

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

E Other

Afshin Akhtar-Khavari, Elizabeth MacPherson, Erin O’Donnell, Katie Woolaston, Julian Yates, Alessandro Pelizzon and Rebecca Nelson, ‘Why do Australia’s Environmental Law Fail to Save Our Species from Extinction’ IUCN News (online, 13 July 2019) https://www.iucn.org/news/world-commission-environmental-law/201907/why-do-australias-environmental-laws-fail-save-our-species-extinction

Declaration of the United Nations Conference on the Human Environment in ‘Report of the United Nations Conference on the Human Environment’ UN Doc A/CONF.48/14/Rev.1 (1973) Principle 1

Department of the Environment and Energy, International Activities, Australian Government (Webpage)

Gabcikovo Nagymaros Project (Hungary v Slovakia) ICJ 97 [1997] (Separate Opinion of Vice President Weeramantry)

Good, Meg ‘Should Australia Recognise the Human Right to a Healthy Environment?’ The Conversation (online, February 22 2018)

Human Rights Council, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (2018) A/HRC/37/58

Knox, John, Special Rapporteur on Human Rights and the Environment, United Nations Human Rights, Office of the High Commissioner (Webpage, 21 April 2016)

Knox, John H, Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment UN Doc A/HRC/25/53 (30 December 2013)

IUCN, Red List: Table 6a: Red List Category Summary Country Totals (Animals) (Webpage, 2018)

Lyons, Kristen, ‘Torres Strait Islanders ask UN to Hold Australia to Account on Climate ‘Human Rights Abuses’ The Conversation (online, 27 May 2019)

Report of the United Nations Conference on Environment and Development, UN Doc A/CONF/151/26 (12 August 1992) annex I (‘Rio Declaration on Environment and Development’)

Knox, John and David Boyd, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, 73rd sess, UN Doc A/73/188 (19 July 2018)

Skelton, Russell, ‘Not a Single Drop to Drink: This is Australia’, The Sydney Morning Herald (online, 28 February 2008)