ACT Government to legislate protection of the right to a clean, healthy and sustainable environment

The Australian Capital Territory Government is proposing to amend the territory's Human Rights Act in order to recognise and protect the right to a clean, healthy and sustainable environment. In this note, we explore potential implications of the new bill, where it fits in with the Australian and global context on the right to a healthy environment, and considerations arising for business.

Snapshot

• The ACT will be the first Australian jurisdiction to legislate the right to ‘a clean, healthy and sustainable environment’, which the UN General Assembly declared to be a universal human right on 28 July 2022 (UN General Assembly Resolution).¹
• The right is generally considered to cover clean, healthy and/or sustainable (as applicable) air, climate, water, sanitation, food, biodiversity and ecosystems. It also affords procedural rights of access to environmental information, public participation in environmental decision-making and access to justice. It is expected the exact scope of what the right protects under each element will evolve overtime, including through implementation at the national level and as scientific knowledge continues to evolve.
• Australia voted in favour of the UN General Assembly Resolution but the Federal Government has not indicated any intention to introduce or amend any federal legislation in order to ensure protection of the right in Australia. The right may however become relevant in the Federal Parliament’s committee scrutiny of bills for human rights compatibility.
• Globally, the UN General Assembly Resolution is expected to increase the speed at which States adopt recognition and protection of the right through their constitutions, national legislation or regional treaties. As at January 2023, the right to a healthy environment was recognised in 156 of 193 UN Member States at national and regional levels.²
• The increasingly widespread recognition of the right to a healthy environment and developments in domestic law to protect that right underscores that companies should have regard to the interactions and interdependencies between environment protection, biodiversity, human rights and sustainable development (and in particular to consider environment-related human rights impacts) as part of their human rights due diligence.
• Herbert Smith Freehills has released a toolkit for corporate actors on navigating the emerging regulatory landscape designed to protect nature and biodiversity. Explore at the link below.
  

Read more

The Bill

The Human Rights (Healthy Environment) Amendment Bill 2023 (ACT) (Bill) is a relatively simple bill that proposes to amend the ACT’s existing human rights protection framework, the Human Rights Act 2004 (ACT), to insert a new section 27C into the list of rights, as follows:

• Everyone has the right to a clean, healthy and sustainable environment.
• Everyone is entitled to enjoy this right without discrimination.

The Bill’s explanatory memorandum explains that ‘introducing the right is part of the Government’s long-term commitment to protecting human rights and recognising the importance of the environment in determining outcomes for human health and wellbeing’.

The ACT Government has deliberately adopted the broad, principled language of the UN General Assembly Resolution so that the right may evolve and develop consistently with international law. The Government intends for the interpretation of the scope and content the right to be informed by international human rights case law and commentary of the UN treaty bodies.

Why recognise a right to a healthy environment?

The UN General Assembly Resolution recognises the connection between a healthy environment, climate change, sustainable development and the enjoyment of human rights:³

• sustainable development and the protection of the environment contribute to and promote human well-being and full enjoyment of human rights for present and future generations,
• while conversely climate change, unsustainable development and the resulting loss of biodiversity interfere with the enjoyment of a healthy environment and that environmental damage has both direct and indirect negative implications for the enjoyment of all human rights.

What does the right to a healthy environment protect?

There is no universally agreed definition of the right to a healthy environment, however it is generally understood to include the following elements (as described by the UN Special Rapporteur on human rights and the environment):⁴

It is expected that the exact scope of what the right protects under each of these elements will evolve over time, including as scientific knowledge develops and in turn international and community expectations continue to increase. For example, consider how scientific knowledge and community expectations of is ‘clean air’ has evolved in societies overtime. Further, how sustainable food usage and farming practices evolve.

What are the implications for the Bill for the ACT Government?

The ACT Government’s intention is that the Bill will ensure proper consideration of the right:

‘Incorporating the right to a healthy environment 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.’

Businesses proposing to undertake business in the ACT or interacting with the ACT Government should be aware of the implications. The obligations in the Human Rights Act will apply to the right, including:

• The specific obligation for public authorities to act consistently with human rights and to give proper consideration to relevant rights in decision making (section 40B)
• the Attorney-General will also need to certify compatibility of new bills with the right (section 37), and the right will be relevant to parliamentary committee scrutiny of bills (section 38).

However, at least initially, enforceability of the right will be limited. In particular, a person will not be able to commence proceedings in the ACT Supreme Court alleging a public authority has acted incompatibly with the right or has failed to give proper consideration to the right when making a decision. The Minister must review that limitation in 5 years’ time along with a review of the operation of the right more generally.

The Australian position on the right to a healthy environment

At a federal level, Australia does not have a bill of rights or human rights act under which the right to a healthy environment could be expressly protected. However, all bills must be accompanied by a Statement of Compatibility with human rights, and a Parliamentary Joint Committee on Human Rights which reviews the human rights impact of new laws including by reference to Australia’s international treaty obligations to assess compatibility.⁵

The UN General Assembly’s July 2022 resolution does not directly change how this framework currently works. However, the right to a healthy environment could more strongly bear on interpretation of rights which are within the purview of the parliamentary committee e.g. the rights in the Convention on the Rights of the Child. On 22 August 2023,⁶  the UN Committee on the Rights of the Child released a General Comment on children’s rights and the environment with a special focus on climate change. It notes the UN General Assembly Resolution as of relevance and states:

Children have the right to a clean, healthy and sustainable environment. This right is implicit in the Convention and directly linked to [other rights in the Convention].

General Comments set out authoritative guidance on interpreting the Convention on the Rights of the Child, demonstrating the influence of the UN General Assembly Resolution so far. This shows how human rights treaties to which Australia is already a party may come to be interpreted in ways that protect the environment and even an express right to a healthy environment in certain contexts.

Most Australian states and territories also have a ‘general environmental duty’ in some form as part of their environment protection legislation, which requires persons to undertake their activities in a way that minimises harm to the environment. This duty is typically enforced through regulatory action by the state’s Environment Protection Authority. To date, Australian environmental litigation has tended to focus not on the general environmental duty but instead on challenges to project approvals, or nuisance and negligence claims.

There is however a growing trend of climate change-related strategic legal proceedings relating to breaches of human rights, both globally and in Australia. For example, proceedings arguing that human rights considerations are relevant to government decision-making on project approvals, in particular invoking human rights arguments relating to environmental damage from climate change (see e.g. the Sharma litigation (which was successful at trial, then overturned on appeal) and the Waratah Coal v Youth Verdict litigation, both challenging the approvals of coal mine projects).⁷

What about other states and territories?

Of the Australian states and territories, only ACT, Victoria and Queensland have human rights acts. It is likely that each state will weigh different factors when considering whether to legislate the right to a clean environment, and in determining the level of procedural and substantive protection to be given to that right. However, the global trend towards recognition and protection of the right to a healthy environment is clear and is likely to influence further development of the law in Australia.

Even where not formally implemented through domestic legislation, international environmental law and international human rights law can influence government decision-making and the interpretation by Courts of legislation or legal obligations. The UN General Assembly Resolution could continue to grow in influence, not only in the context of climate change, but also across the spectrum of environmental concerns including loss of biodiversity, clean water and air, and rehabilitation / remediation.

The Global position

On a global level, the UN General Assembly Resolution is expected to increase the speed at which States adopt recognition and protection of the right through their constitutions, national legislation or regional treaties. The characterisation of climate change, in particular, as a human rights issue has continued to grow in prominence internationally. A request for an advisory opinion on State obligations in relation to climate change, including in respect of the human rights of "[p]eoples and individuals of the present and future generations", is currently pending before the International Court of Justice, while climate advisory proceedings are also pending before the Inter-American Court of Human Rights (see our previous posts here and here).  It is likely that both Courts will consider and comment on the right to a clean and healthy environment in their judgments in these cases.

Key takeaways for business

Beyond the potential implications of the Bill itself, the momentum behind substantive recognition of the right to a healthy environment underscores that companies should be aware of, and be prepared to address, the way their business interacts with environment protection, human rights and sustainable development. The UN General Assembly Resolution itself refers to the UN Guiding Principles on Business and Human Rights, which underscore the responsibility of all business enterprises to respect human rights.

• Cohesive ESG policies and practices: Companies may wish to consider how their human rights and sustainability policies and practices interact in light of the interactions and interdependencies between environmental and human rights considerations.
• Avoid silos in corporate ESG and sustainability management: Traditionally, some companies may delegate environmental management to a specific environment function, while human rights issues are managed by other teams. However, holistic ESG risk management integrates both aspects. Issues like greenhouse gas emissions, pollution and land clearance are increasingly viewed as having both short and long term human rights implications.
• Preparing for biodiversity in the corporate context: We are seeing a steep rise in biodiversity-related laws and policies globally, with corresponding levels of engagement from stakeholders (whether through regulatory enforcement, shareholder resolutions or grassroots litigation). There are also increasing expectations around nature and biodiversity-related disclosures. This is especially so with the publication of the final disclosure framework from the Taskforce on Nature-related Financial Disclosures (TNFD), effectively the nature equivalent of the disclosure framework developed by the Taskforce on Climate-related Financial Disclosures (TCFD), with the former likely to follow a similar voluntary-to-mandatory trajectory as the latter.

Herbert Smith Freehills has released a toolkit for corporate actors on navigating the emerging regulatory landscape designed to protect nature and biodiversity. Explore at the link below.

Read more

¹ The human right to a clean, healthy and sustainable environment, GA RES 76/300 (adopted 28 July 2022), adopted with 161 votes in favour, 0 against and 8 abstentions.
² UNDP, OHCHR and UNEP, What is the Right to a Healthy Environment (5 January 2023), https://www.undp.org/publications/what-right-healthy-environment, p7.
³ The human right to a clean, healthy and sustainable environment, GA RES 76/300 (adopted 28 July 2022).
⁴ Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Right to a healthy environment: good practices, HRC 43rd session, 3 A/HRC/43/53 (30 December 2019); See also Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, HRC 37th session, 3 A/HRC/37/59 (24 January 2018); see also UNDP, OHCHR and UNEP, What is the Right to a Healthy Environment (5 January 2023), https://www.undp.org/publications/what-right-healthy-environment.
⁵ See Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).
⁶ Committee on the Rights of the Child, General comment No. 26 (2023) on children’s rights and the environment, with a special focus on climate change, CRC/C/GC/26 (22 August 2023, adopted by the Committee at its 93rd session 8-26 May 2023).
⁷ Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for Environment (2021) 391 ALR 1 at trial, Minister for Environment v Sharma (2022) 291 FCR 311 on appeal, Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21.

by Heidi Asten, Partner, Antony Crockett, Partner and Paige Mortimer, Solicitor