Legal Recognition of the Human Right to a Healthy Environment in Australia: Useful, Redundant or Dangerous?

Transcription

1 Legal Recognition of the Human Right to a Healthy Environment in Australia: Useful, Redundant or Dangerous? New Frontiers in Global Environmental Constitutionalism: Implementing Human and Environmental Rights in Global Contexts North-West University Potchefstroom Campus 12 th April 2016 Meg Good BA LLB (Hons) PhD Candidate Faculty of Law University of Tasmania

2 The environmental rights revolution and Australia Countries around the world have begun to introduce environmental rights into their laws and policies Australia has not yet joined this environmental rights revolution Environmental rights are not recognised at any level of government in Australia It is currently one of only fifteen nations (including Canada and the US) which does not recognise the human right to a healthy environment at the federal level

3 Why has Australia failed to embrace environmental rights? Various possible explanations Approach to environmental protection Perception of effectiveness of current approaches to environmental protection Nature of Australia s legal/political systems & approach to rights protection

4 No constitutional recognition of environmental rights The Australian Constitution does not recognise The importance of environmental protection A bill of rights There are no express environmental rights Due to the absence of a bill of rights, it is not possible to interpret the Constitution to ascertain implied environmental rights

5 Factors explaining the lack of constitutional recognition The Australian Constitution is a reflection of the historical and social context of its creation It was not designed to address broad governance issues, or to safeguard individual human rights Incorporating environmental rights into the Constitution would constitute a significant alteration to the status quo It is both procedurally and politically very difficult to alter the Constitution

6 Options for constitutional recognition There are various options for constitutional recognition Adoption of a constitutionally entrenched bill of rights, recognising environmental rights (such as the human right to a healthy environment) Recognition of an independent human right to a healthy environment in a new or existing section of the Constitution

7 Likelihood of constitutional recognition All possible options for constitutional recognition are highly unlikely to be adopted Can be attributed to various factors Difficulties posed by the amendment procedure Historical reluctance to entrench express rights Politically controversial nature of environmental rights Current lack of acknowledgment of economic, social and cultural rights Significantly different approach to the status quo in relation to environmental protection and human rights Modified role of the judiciary

8 Potential benefits & limitations of constitutional recognition Benefit It could empower judges to invalidate legislative and executive action found to be incompatible with the right Limitation this could interact with existing complex systems for environmental protection in unpredictable and possibly undesirable ways Benefit It could increase government accountability and government action in relation to environmental protection

9 Legislative recognition Environmental rights (such as the human right to a healthy environment) could be recognised under legislation at both the federal and state/territory levels Legislative recognition would face less challenges than constitutional recognition However, it is still arguably unlikely to occur in the near future

10 Options for legislative recognition The most likely form of legislative recognition is recognition within the context of broader bills of rights legislation As the dialogue model has been adopted at the state/territory level in the only two Australian jurisdictions which have human rights charters (ACT/Vic), it is the model most likely to be adopted nationwide

11 Dialogue model The National Human Rights Consultation Committee (2009) recommended the adoption of a federal Human Rights Act based upon the dialogue model If the human right to a healthy environment was recognised under federal human rights legislation, it would have to be considered during the creation, implementation and interpretation of legislation In 2012, a Parliamentary Joint Committee on Human Rights was introduced into the Federal Parliament, tasked with the responsibility of scrutinising the compatibility of proposed legislation with internationally recognised human rights Accordingly, one crucial element of the dialogue model is already in operation at the federal level

12 Potential benefits of legislative recognition If the HRTHE was recognised under a federal Human Rights Act adopting the dialogue model, it would: Create a requirement for members of the executive to act in consistency with the right; Enable the judiciary to interpret legislation in consistency with the right; Increase parliamentary scrutiny of executive and legislative action impacting on the right. These consequences of legal recognition could potentially prove beneficial for environmental protection by increasing consideration and prioritisation of environmental protection, and increasing government accountability.

13 Limitations of legislative recognition Under the dialogue model, it would still be possible for legislation incompatible with the human right to a healthy environment to pass into law Even where the judiciary declared that a statutory provision impacting on the right could not be interpreted in consistency with the right, the legislature would retain the power to maintain the operation of the law in its inconsistent form Accordingly, the form of recognition of the right could limit its potential impact on environmental protection

14 Examples of potential impact Recognition of the HRTHE could impact on the laws regarding standing Recently, the Federal Government moved to remove the extended standing provision under Australia s federal environmental protection legislation (the EPBC Act) It argued that allowing extended standing constitutes a major threat to the administration of the EPBC Act as it delays projects and increases costs The Parliamentary Joint Committee considered the Bill and concluded that the amendments could result in a failure to properly enforce the protections under the Act, and therefore it could engage and limit the right to health and a healthy environment

15 Examples of potential impact The Committee reasoned that as the UNCESCR has stated that a violation of the right to health can occur where pollution laws are inadequately enforced, limiting the ability of environmental protection advocates to enforce those laws might engage and limit the HRTHE. Accordingly, the Committee is now seeking advice from the Minister for the Environment as to whether the bill limits the right to a healthy environment, and if it does, to provide a response to the following questions: whether the proposed changes are aimed at achieving a legitimate objective; whether there is a rational connection between the limitation and that objective; and whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

16 Concluding thoughts & questions Australia has not recognised environmental rights in its laws and policies, due to a variety of factors (including perceived incompatibilities with existing systems for environmental and human rights protection) Australia should give serious consideration to providing legal recognition of the human right to a healthy environment and other environmental rights, as they may provide significant benefits for environmental protection However, achieving legal recognition will be politically challenging Australia may be more likely to recognise the right under its domestic laws if the right receives express legal recognition under a binding global treaty. The elucidation of human rights indicators for the right at the international level may further help clarify the content of the right, and therefore clarify the content of the duties imposed on the Australian Government. Any questions? Meg.Good@utas.edu.au