Human rights cities – how does Australia fare

Human rights cities – how does Australia fare?

Hanna Jaireth*

This article examines the growing international recognition of the interlinkagesbetween human rights and responsibilities, and local governments and theenvironment, noting selected developments in Canada and Australia. Theexperience of statutory charters of rights in Victoria and the ACT has beengenerally positive for cities, but with few environmental gains to date. Manylocal governments are calling for more funding and clarification of the roles ofeach level of government, and often pursue social justice and well-beinginitiatives without using the language of human rights. The amendment ordevelopment of intergovernmental agreements and national statutory schemesto improve integrated regional and national planning and development pro-cesses and outcomes, and the enactment of human rights charters in thejurisdictions that do not yet have them, would be beneficial reforms.There maybe opportunities for complainants to assert environmental rights in relation toclean air and water in those jurisdictions with rights charters in place.Ecologically sustainable development may be better progressed if an Austra-lian Bill of Rights protected environment-related rights across Australia.

INTRODUCTION

A welcome recent political development in Australia is federal cross-party support for the position andfunctions of the Minister for Cities and the Built Environment,1 and national urban policy initiativesthat aim to better integrate each tier of government in planning and development for liveable cities.The Reform of the Federation White Paper, building on other reviews, may generate momentum fornew policies and governance arrangements that re-work current intergovernmental agreementsconcerning ecologically sustainable development, and the inter-government cooperation2 andinfrastructure needed for that.3

Almost 80% of the growing Australian population lives in major cities, while regional and remotecities and townships are relatively sparsely populated and disadvantaged. The quality of our livedurban experiences, while comparatively good internationally, are challenged by both growing urbansprawl and urban density, and the impacts of increasing flows of traffic, freight and people on roadsand rail lines, and through ports and airports.4 Our ecological footprints are unsustainable andenvironmental regulation and land use planning needs to be better coordinated locally, bio-regionallyand nationally.5

* Writing in a private capacity as a member of the Australian Panel of Experts on Environmental Law on a pro bono project forthe Places You Love Alliance. This article does not represent the views of my employers, the Law Council of Australia or theACT Heritage Council (ACT Government).

1 The former Assistant Minister for Infrastructure and Regional Development, the Hon Jamie Briggs MP, Member for Mayo,South Australia, was appointed the Minister for Cities and the Built Environment on 21 September 2015.

2 SHOROC, Greater Sydney Commission Structure Welcomed as State and Local Government Partnership (2015).

3 See the Council of Australian Governments webpage. Current roles and responsibilities partly implement the Council ofAustralian Government’s (COAG’s) Heads of Agreement on Commonwealth and State Roles and Responsibilities for theEnvironment (1997) and the Intergovernmental Agreement on the Environment (1992).

4 Australian Government, Department of Infrastructure and Regional Development, State of Australian Cities 2014-15 (2015)pp 1, 14.

5 Armstrong B, Davison G, de Vos Malan J, Gleeson B and Godfrey B, Delivering Sustainable Urban Mobility: Report for the

Australian Council of Learned Academies (2015); Australian Parliament, House Standing Committee on Environment andHeritage, Sustainable Cities (Canberra, 2005); Perry QC M, “The Fractured State of Environmental Regulation” (2013) AER438; Australian Government, Department of the Environment, Heritage and the Arts, The Australian Environment Act: Report of

the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Dr Allan Hawke AC: Chair)

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This article explores the role of local governments in protecting environmental rights in thecontext of selected national and state level policies concerning domestic human rights protection. Itexplores global trends in relation to “human rights cities”, and then examines Australia’s currentNational Human Rights Framework and State and Territory views on specific environmental rights. Itassumes an understanding of local government functions in Australia.

This article was stimulated in part by the advocacy of the David Suzuki Foundation in Canada, inpartnership with city governments, concerning environmental rights protection, which is noted below.6

Close bilateral ties will continue between Canada and Australia with the October 2015 replacement ofStephen Harper’s Conservative Party majority with a Canadian Liberals majority led by CanadianPrime Minister Justin Trudeau. In relation to environmental justice and democracy, which are humanrights of importance to the sustainability agenda and liveable cities, Canada and Australia shared acommon recent political experience with some sustainability advocates in civil society attractingindustry and government opprobrium.7

CANADIAN CITIES AND ENVIRONMENTAL RIGHTS RESOLUTIONS

Liveable cities and environmental rights are championed by various popular organisations and socialleaders in Canada. Organisations such as “8 80 Cities” advocate for cities to become places for people,prioritising walkability, active transport, and accessible urban parks, trails and other public spaces. TheDavid Suzuki Foundation is working with city governments in advocating through a series ofmunicipal resolutions for the right to a healthy environment to be recognised, while also campaigningfor the Canadian Charter of Rights and Freedoms to explicitly address environmental rights. One ofCanada’s leading environmental lawyers, Adjunct Professor David Boyd, continues to advocate forconstitutional reform to recognise environmental rights.8 Five Canadian provinces and territories(Quebec, Ontario, the Yukon, Northwest Territories, and Nunavut) have environmental rightslegislation, and six Canadian cities have adopted environmental rights resolutions, includingYellowknife, Montreal, and Vancouver. In September the Union of British Columbia Municipalities(UBCM) called for an environmental bill of rights for British Columbia at its 2015 Convention.9

In May 2015 the Toronto City Council referred an environmental rights motion in this campaignto its Executive Committee for further consideration. The motion called on City Council and itscommittees to continue their work with residents and other experts to set, review and reviseobjectives, targets, timelines, and actions to fulfil residents’ rights to a healthy environment, whichinclude:• ensuring an equitable distribution of environmental benefits and burdens within the municipality,

preventing the development of pollution “hot spots”;• ensuring infrastructure and development projects protect the environment, including air quality;• addressing climate change by reducing greenhouse gas emissions and implementing adaptation

measures;• responsibly increasing density;• prioritising walking, cycling and public transit as preferred modes of transportation;• ensuring adequate infrastructure for the provision of safe and accessible drinking water;• promoting the availability of safe foods;

(2009), and Australian Government, Department of Sustainability, Environment, Water, Population and Communities(SEWPaC), Australian Government Response to the Report of the Independent Review of the Environment Protection and

Biodiversity Conservation Act 1999 (2011).

6 Referred by Brendan Sydes, Environmental Justice Australia.

7 See eg, the Australian Parliament, House of Representatives Standing Committee on the Environment Committee’s Inquiry intothe Register of Environmental Organisations (2015) and the Senate Environment and Communications Legislation Committee’sinquiry into the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015; Merritt C, “GreeniesOwe Millions in Court Costs”, The Australian (27 November 2015).

8 Boyd D R, The Right to a Healthy Environment: Revitalizing Canada’s Constitution (Vancouver, UBC Press, 2012).

9 UCBM, Resolutions to be Considered at the 2015 UBCM Convention (Vancouver Convention Centre, Vancouver BritishColumbia) p 95. The resolution was endorsed, but contested.


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• reducing solid waste and promote recycling and composting; and

• establishing and maintaining accessible green spaces in all residential neighbourhoods.

The motion also directed the City Manager to write to the Provincial Government calling for apublic review of Ontario’s Environmental Bill of Rights10 and to the Federal Government calling forthe development of national legislation that recognises that all people have the right to live in ahealthy environment.11

In October 2014, Linda Duncan (New Democratic Party (NDP)), an Opposition MP in Canada,introduced a private member’s Bill to establish a Canadian Environmental Bill of Rights. That Billlapsed at the 2015 election. The NDP lost 51 seats and fell back to being the third party in theCanadian Parliament,12 so the initiative is unlikely to progress any time soon.

THE STATE OF THE ENVIRONMENT IN AUSTRALIA’S CITIES

All levels of government and others working for ecological sustainability have responsibilities andincentives to create healthier environments, healthier people and healthier budgets. Current adverseecological trends need to be slowed and reversed. Economic, social and scientific data is readilyaccessible on the benefits of people having access to natural areas, multi-modal sustainable transportsystems, clean water, clean air, healthy food, protection against climate change and privacy.Procedural rights to information, participatory decision-making and access to justice also deliverpublic benefits. Environmental-rights policies specifically for children can also deliver inter-generational benefits, healthier children, and more sustainable futures.13

On the negative ledger, Australia’s population consumes disproportionately high levels of energy,water and other natural resources, and causes worsening traffic congestion, more pollution, morewaste, habitat change, feral species’ proliferation, climate change, and biodiversity decline.14 Thesetrends also impact on the regional environments around cities, and the national and globalenvironment.15

Some of Australia’s more than 550 local councils have been advocating for increased funding tobetter enable them to meet the needs of their local communities; a need recognised in variousreviews.16 Continuing a tradition of local councils adopting resolutions in response to political, socialand economic problems, a range of resolutions were adopted at the June 2015 National GeneralAssembly of Local Government Councils. The Assembly called unanimously for an end to the freezeon the indexation of Financial Assistance Grants (FAGs) to local governments. Other resolutions ofthe 2015 Assembly called for:

10 Environmental Bill of Rights 1993, SO 1993 c 28.

11 Toronto City Council, “The Right to a Healthy Environment: An Environmental Bill of Rights for Toronto”, Referral ofMember Motion by City Council (8 May 2015) EX6.19.

12 Bill C-634 Canadian Environmental Bill of Rights; Brewster M, “NDP Seats Lost As Liberals Take Majority Government”,The Canadian Press (19 October 2015).

13 See eg, Kardan O, Gozdyra P, Misic B, Moola F, Palmer LJ, Paus T, and Berman MG, “Neighborhood Greenspace andHealth in a Large Urban Center” (2015) 5 Scientific Reports 11610; Ikin K, Le Roux DS, Rayner L, Villaseñor NR, Eyles K,Gibbons P, Manning AD and Lindenmayer DB, “Key Lessons for Achieving Biodiversity-sensitive Cities and Towns” (2015)16 Ecological Management & Restoration 206; Louv R, Last Child in the Woods: Saving our Children from Nature-Deficit

Disorder (Algonquin Books, Chapel Hill, 2008); Taylor MP, Dong C, Kristensen L, Zahran S, “Australian Children Exposed toToxic Mining Metals Do Worse at School”, The Conversation (6 October 2015).

14 Australian Government, State of the Environment 2011 Committee, Australia State of the Environment 2011: Independent

report to the Australian Government Minister for Sustainability, Environment, Water, Population and Communities (Canberra,DSEWPaC, 2011); Places You Love Alliance, The Australia We Love: A Report on Key Issues Affecting Nature and Society in

Australia (Places You Love, Sydney 2014).

15 Only 77 of Australia’s local governments are members of ICLEI – Local Governments for Sustainability – a not for profitglobal non-government network that promotes sustainability at the local government level.

16 Discussed in Kelly AH, and Stoianoff NP, “Biodiversity Conservation, Local Government Finance and Differential Rates:The Good, the Bad and the Potentially Attractive” (2009) 26 EPLJ 5.

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• clarification of the structural interrelationship and core business of each level of government inAustralia, including principles, criteria and funds distribution;

• support for the principle of subsidiarity whereby responsibility for service delivery lies with thelowest level of government possible, with appropriate funding, particularly for transportinfrastructure and services and affordable housing and homelessness policies and programs;17

• FAG funding to be restored to the equivalent of one percent of Commonwealth taxation revenue;• a review of the Local Government (Financial Assistance) Act 1995 (Cth) and inquiry into ways

that duplication of services can be reduced as part of the reform of the Federation project oranother inquiry;

• the Commonwealth Grants Commission to coordinate a whole of government approach toinfrastructure funding development and management;

• support for the Australian Government’s Water Infrastructure Development Program;

• ongoing Australian Government funding for transport infrastructure of national importance, inaddition to the Asset Recycling Fund, with appropriate engagement and consultation with localgovernment, including for a high speed rail service between the east coast capitals, and otherpublic transport projects and the National Broadband Network;

• less duplication of land use, environmental and social impact planning and regulation;

• reinstatement of the National Partnership Agreement on Preventative Health with appropriatelevels of funding for local government;

• more Commonwealth and State Government funding for programs that improve environmentalassets including bushland management, vertebrate pest control and the development of a nationalIndian Myna control program;

• the re-establishment of the National Housing Supply Council to inform affordable housing policy;

• a national response to climate change with more funding for local government for natural disastermitigation, recovery and resilience efforts;

• tougher compliance standards for the road freight sector including emission controls on dieselemission particulate matter (PM2.5) as a priority;

• the acceleration of resource recovery by increasing industry targets in the National Television andComputer Recycling Scheme and introduction of a National Container Deposit Scheme;

• the development and implementation of a national home sustainability rating scheme coveringenergy, greenhouse and water performance, with nationally consistent assessment, implementationand compliance;

• appropriate modelling of infrastructure and service needs before dwelling targets and increaseddensities in urban renewal areas are released; and

• local governments to review their governance arrangements to ensure transparency indecision-making, and to note the value of public participation in democratic decision-making.18

These resolutions are all consistent with more sustainable and liveable cities and better humanrights outcomes, without using the language of human rights. As noted below, several local councils inVictoria support the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Leaders across the political spectrum addressed the June 2015 National General Assembly.

• The Australian Government Minister for Infrastructure and Regional Development outlined theCommonwealth’s funding for local government in a range of programmes including Roads toRecovery and Black Spot and Heavy Vehicle Safety and Productivity, the National StrongerRegions Fund, the Bridges Renewal Programme and the Stronger Communities Fund.19

17 Counter considerations include the irrelevance of jurisdictional boundaries to many development challenges, spillover effects,competence, respect, and resourcing which made national level governments a more appropriate governance level.

18 Australian Local Government Association, Resolutions of the 2015 National General Assembly of Local Government (17 June2015).

19 Warren Truss MP, Minister for Infrastructure and Regional Development, Opening Address – Australian Local Government

Association – 2015 National General Assembly (Speech delivered at the National Convention Centre, Canberra, 15 June 2015).


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• The Australian Government Minister for the Environment discussed local on-ground programdelivery under the Australian Government’s Plan for a Cleaner Environment, including theEmission Reduction Fund, the National Clean Air Agreement, Clean Land policy initiativesincluding the Green Army, National Landcare and 20 Million Trees programmes, the NationalTelevision and Computer Recycling Scheme and Mobile Muster.20

• The Leader of the Opposition noted that Australian Labor Party policies include a Minister forCities, an Urban Policy Forum and State of Australian Cities annual report. He noted the formerGovernment’s establishment of the Australian Council of Local Governments and 6,000 locallevel projects. Better planning, urban waterways and renewable energy initiatives remainpriorities.21

• The Australian Greens’ Leader discussed his party’s support for Constitutional recognition oflocal government, the importance of innovation, climate change, funding for local governmentand the subsidiarity principle, and the Trans Pacific Partnership Agreement.22

GLOBAL TRENDS

At the global level, several initiatives focus on the links between human rights and sustainabledevelopment, and the role of local governments in promoting and respecting both. The examplesfollowing recognise environmental protection as a precondition to the exercise of human rights;procedural rights as an essential component of environmental protection; and the right to a safe,healthy and ecologically-balanced environment as a human right in itself.23

Human habitat has been on the global sustainability agenda since at least the 1972 Declaration ofthe United Nations (UN) Conference on the Human Environment. It has been a priority issue over thelast 20 years due to global urbanisation trends. The 1992 UN Conference on Environment andDevelopment included the opening for signature of Agenda 21, the non-binding global blueprint forparticipatory action for sustainable development and more habitable human settlements. Chapter 28focuses on the role of local authorities (LA 21).24

In 2002, the local government session of the Johannesburg Earth Summit adopted the 10“Melbourne Principles for Sustainable Cities”. These refer to the need for a long-term vision forequitable cities; long-term economic and social security; recognition of the intrinsic value ofbiodiversity and ecosystems; the need to reduce ecological footprints; town planning to followecological principles; empowering people and encouraging participation through networks; enablingcontinuous improvement based on accountability, transparency and good governance; the use ofenvironmentally sound technologies; and demand management to promote sustainable production andconsumption.25

This year the focus on sustainability and cities continues. In September 2015, the UN 2030Sustainable Development Agenda (the Agenda) included various references to universal human rightsas integral to sustainability and a just and inclusive world. The Agenda refers to the 2011 GuidingPrinciples for Business and Human Rights (see below), labour rights, non-discrimination,

20 Greg Hunt MP, Minister for the Environment, Working with Local Governments for a Better Environment (Speech deliveredat the National General Assembly of Local Government, 15 June 2015).

21 Bill Shorten MP, Leader of the Opposition, Speech to the Local Government National General Assembly (Parliament House,16 June 2015).

22 Senator Dr Richard Di Natale, Leader of the Australian Greens, Australian Local Government Association Speech (16 June2015).

23 Collins L M, “Are We There Yet? The Right to Environment in International and European Law” (2007) McGill Int’l JSustainable Development L & Policy 119.

24 United Nations, Agenda 21: Programme of Action for Sustainable Development, UN GAOR, 46th Session, Agenda Item 21,UN Doc A/Conf 151/26 (1992).

25 United Nations Environment Programme (UNEP), Melbourne Principle for Sustainable Cities (International EnvironmentalTechnology Centre, 2002).

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environmental and health standards, and “peaceful, just and inclusive societies that provide equalaccess to justice and that are based on respect for human rights”. Goal 11 of the Agenda is to “makecities inclusive, safe, resilient and sustainable”.26

In August 2015 an Advisory Committee to the UN Human Rights Council recommended thatguiding principles be developed to assist local governments to implement internationally recognisedhuman rights, to help realise “human rights cities”.27 The French philosopher Henri Lefebvre wrote ofsuch cities in Le Droit a la Ville (1968). A similar concept was fostered by the international serviceorganisation the People’s Movement for Human Rights Education in 1997 and was developed furtherin several regional and global congresses and declarations.28 The concept calls for:

both a local community and socio-political process in a local context where human rights play a keyrole as the fundamental values and guiding principles … including the principles of democracy,participation, responsible leadership, transparency, accountability, non-discrimination, empowermentand rule of law … the broad participation of all actors and stakeholders, in particular marginalised andvulnerable groups, and … monitoring mechanisms to which all people have recourse.29

This concept seems to be consistent with the new collaborative environmental governance policyand practice that brings together in a polycentric way, local private, public and non-governmentstakeholders in participatory dialogue and deliberation, devolved decision-making and inclusive,transparent consensus-building.30

In March 2015, the UN Human Rights Council extended the mandate of the former IndependentExpert on Human Rights and the Environment, John Knox, for three years. He is now a specialrapporteur on human rights obligations relating to the enjoyment of a safe, clean, healthy andsustainable environment.31 Knox’s reports suggest that States are obliged under international humanrights law to protect environment-related human rights.32 He has reported briefly on various “goodpractices”.33 This continues an initiative that the UN member states did not progress in the 1990sdespite a promising start,34 but returned to in the 2000s.

Other UN initiatives continue its focus on human rights, including environmental rights:• In 2011 the Human Rights Council endorsed Guiding Principles on Business and Human Rights

that require States to protect human rights within their jurisdiction by third parties, including

26 United Nations, Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc A /RES/70/1 (21 October2015).

27 United Nations Human Rights Council (UN HR Council), Role of Local Government in the Promotion and Protection of

Human Rights – Final Report of the Human Rights Council Advisory Committee, UN Doc A/HRC/30/49 (7 August 2015), p 19.

28 Including the 2005 World Charter for the Right to the City, the 2011 Gwangju Declaration on Human Rights City, the 2011European Charter for the Safeguarding of Human Rights in the City, the 2011 Global Charter-Agenda for Human Rights in theCity, and the 2014 Gwanngju Guiding Principles for a Human Rights City: UN HR Council, n 27, UN Doc A/HRC/30/49,pp 12-13.

29 UN HR Council, n 27, UN Doc A/HRC/30/49, p 12.

30 Gunningham N, “The New Collaborative Environmental Governance: The Localization of Regulation” (2009) 36(1) Journal

of Law and Society 145 at 145-146.

31 UN HR Council, Human Rights and the Environment, Resolution 28/11, 55th Meeting, UN Doc A/HRC/28/L.19 (26 March2015).

32 UN HR Council, Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a

Safe, Clean, Healthy and Sustainable Environment, John H Knox, Preliminary Report, UN Doc A/HRC/22/43 (24 December2012); United Nations, Human Rights Council, Report of the Independent Expert on the Issue of Human Rights Obligations

Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H Knox, Mapping Report, UN DocA/HRC/25/53 (30 December 2013).

33 UN HR Council, Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a

Safe, Clean, Healthy and Sustainable Environment, John H Knox: Compilation of Good Practices, UN Doc A/HRC/28/61 (3February 2015).

34 United Nations, Economic and Social Council, Commission on Human Rights, Review of Further Developments in Fields

with which the Sub-Commission has been Concerned: Human Rights and the Environment: Final Report prepared by

Mrs Fatma Zohra Ksentini, Special Rapporteur, UN Doc E/CN.4/Sub.2/1994/9 (6 July 1994) and UN DocE/CN.4/Sub.2/1994/Corr.1


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businesses. The special rapporteur for this initiative reviewed 320 allegations of corporate humanrights breaches and found that one third concerned environment-related human rights, includinglife, health, food and housing;35

• In 2007 the UN Declaration on the Rights of Indigenous Peoples recognised the rights ofIndigenous peoples to the conservation and protection of the environment and the productivecapacity of their lands, territories and resources and to non-discriminatory access to assistanceprograms;

• In 2009 the UN Environment Programme supported a forward planning meeting,36 and in 2011 ananalytical study on human rights and the environment was published.37

• The General Assembly and Security Council have adopted resolutions on environmental rightsand climate change and continue to focus on “the role of climate change as a threat multiplier forglobal security”;38 and

• Rights-based approaches also inform the implementation of the World Heritage Convention andinternational development policy more broadly.39

These developments share a common recognition that environmental degradation can impact onindividuals’ life, health, housing, private life and property. They also demonstrate that rights toculture, education, association, due process, information and communication are required forecologically sustainable development. A growing body of jurisprudence exists on a range of articles inglobal and regional treaties and implementing legislation protecting environment-related rights.40

A far weaker global trend concerns the rights of nature and the more recent earth laws/wild lawmovement that advocates recognition of legal standing for the intrinsic rights of nature, as articulatedby a minority of legal philosophers and environmental lawyers. Nature rights have been recognised inEcuador’s Constitution and in a limited way in New Zealand, Bolivia and in several states in theUnited States.41

AUSTRALIA’S NATIONAL HUMAN RIGHTS FRAMEWORK

This section notes recent policy consideration of a charter of rights at national and state levels. Thisshould be of interest to each level of government given current sustainability data.


36 United Nations Environment Program, High Level Expert Meeting on the New Future of Human Rights and Environment

(Nairobi, 2009).

37 UN HR Council, Analytical Study on the Relationship between Human Rights and the Environment, Report of the United

Nations Commissioner for Human Rights, UN Doc A/HRC/19/34 (16 December 2011).

38 Werrell C and Femia Francesco, “Climate Change as a Threat Multiplier for Global Security” in Climate and Security (8 July2015). The Center for Climate and Security (CCS) site discusses recent UN activities to the human security dimensions ofclimate change.

39 See eg, UNESCO, Convention Concerning the Protection of the World Cultural and Natural Heritage, “World Heritage andSustainable Development”, World Heritage Committee, 39th Session Bonn, Germany 28 June – 8 July 2015, 39 COMWHC-15/39.COM/5D (Paris, 15 May 2015); Strecker A, “Landscape and Human Rights” in UNISCAPE (ed) Living

Landscape: The European Landscape Convention in Research Perspective (Bandecchi & Vivaldi, 2010) pp 488-495; Greiber T(ed) Conservation with Justice: A Rights-based Approach (IUCN Gland, 2009); Campese J, Sunderland T, Greiber T andOviedo G (eds), Rights-based Approaches: Exploring Issues and Opportunities for Conservation (CIFOR and IUCN Bogor,Indonesia, 2009); IUCN, ICOMOS, ICCROM, World Heritage and Rights-based Approaches (Ministry of Climate andEnvironment, Norway, 2014).

40 Boyle A, “Human Rights and the Environment: Where Next” in Boer B (ed), Environmental Law Dimensions of Human

Rights (OUP, 2015) pp 201-239; Anton D and Shelton DL, Environmental Protection and Human Rights (CUP, 2011);Shelton DL (ed), Human Rights and the Environment (EEP, 2011); Picolotti R and Taillant JD, Linking Human Rights and the

Environment (UAP, 2003); EDO NSW and EDO Vic, Protection of Human Rights and Environmental Rights in Australia:

Discussion Paper (2009). The European Union has declined to adopt specific environmental rights, noting that existing rightsextend protection to those: Van de Venis J, “A Human Right to a Clean and Healthy Environment: Dream or Reality in Europe”(2011) 1(11) ELNI Review 27.

41 See eg, Stone C, Should Trees Have Standing? Law Morality and the Environment (35th ed, OUP, 2010); Burdon P (ed),Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakefield Press, 2011), the Te Urewera Act 2014 (NZ) and theWanganui River Agreement (2012) and Settlement in New Zealand and more generally, Community Environmental LegalDefense Fund “The Rights of Nature” website.

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Under international law, States are bound by the obligations they assume under internationaltreaties and to report on compliance, and are responsible for sub-national implementation.42 States canalso assume obligations arising from domestic law. For example, substantive environmental rightshave been recognised in more than 90 national Constitutions.43 State and provincial legislation canprotect environmental rights, as discussed below in relation to Australia.

There is a growing recognition that local governments, as the level of government closest to localcommunities and their everyday needs, also require powers and financial resources to contribute to theimplementation of States’ human rights obligations.44

Australia has ratified the seven main global international human rights conventions and partiallydischarges its obligations in domestic law through a range of Acts, administrative practices andoverlapping scrutiny mechanisms.45 Australia is also accountable to international treaty bodies for itshuman rights implementation.

The National Human Rights Consultation recommended in 2009 that a new national HumanRights Act create rights of action for breaches of civil and political rights initially, with non-justiciableprotection for several economic and social rights. The Consultation recommended that the Act conferpower on courts to interpret Commonwealth laws consistent with human rights, and morecontroversially, to draw Parliament’s attention to departures from rights. The Consultation alsorecommended that complaints about an infringement of the right to an adequate standard of living(including adequate food, clothing and housing) and about the enjoyment of the highest attainablestandard of physical and mental health, and the right to education, be heard by Australian HumanRights Commission. During the National Consultation 15 focus groups recommended that basicamenities (water, food, clothing and shelter), essential healthcare, and equitable access to just andpersonal safety be included in unconditionally protected rights.46

The Australian Government did not accept the recommendation for a national Human Rights Act,but did agree that the Executive would introduce statements of human rights compatibility whenintroducing Bills to the Parliament, introduce a program of human rights education, and establish aParliamentary committee on human rights. That Committee became the Parliamentary JointCommittee on Human Rights (PJCHR).47

The PJCHR has raised environmental rights questions. For example in September 2015 it notedthe possible infringement of environment-related rights caused by the proposed removal of extendedstanding for the judicial review of decisions under the Environment Protection and BiodiversityConservation Act 1999 (Cth) in light of Art 12 of the International Covenant on Economic, Social andCultural Rights (the right to health and a healthy environment).48 Consistent with the dialogue modeladopted by the National Human Rights Framework, the Committee asked the Minister for theEnvironment whether the amendments did limit that right, were aimed at achieving a legitimate


43 UN Doc A/HRC/28/61, n 33, p 15 [73].

44 UN Doc A/HRC/30/49, n 27, pp 6-7.

45 For a recent overview see: Australian Government, Australian Law Reform Commission, Traditional Rights and Freedoms –

Encroachments by Commonwealth Laws, ALRC Interim Report 127 (Sydney, 2015), Ch 2. Federal implementing laws includethe Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), Australian Human Rights Commission Act 1986 (Cth), and Native

Title Act 1993 (Cth). State and Territory legislation includes: Human Rights Act 2004 (ACT), Discrimination Act 1991 (ACT);Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1992 (NT), Anti-Discrimination Act 1991 (Qld), Equal

Opportunity Act 1984 (SA), Anti-Discrimination Act 1998 (Tas), Equal Opportunity Act 2010 (Vic), Racial and Religious

Tolerance Act 2001 (Vic), Charter of Human Rights and Responsibilities Act 2006 (Vic), and Equal Opportunity Act 1984

(WA).

46 Brennan SJ AO, F, The Practical Outcomes of the National Human Rights Consultation (Address to Judicial Conference ofAustralia Colloquium, Sir Stamford, Circular Quay, Sydney, 12 October 2013) p 3.

47 See Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

48 Australian Parliament, Parliamentary Joint Committee on Human Rights, 27th Report of the 44th Parliament (Canberra,8 September 2015) at [1.17]-[1.29]. See also the report on the Safety, Rehabilitation and Compensation Amendment (Improving

the Comcare Scheme) Bill 2015.


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objective rationally connected with the rights limitation, and whether the limitation was a reasonableand proportionate measure for achieving that objective.49

JURISDICTIONS WITH CHARTERS OF RIGHTS

Australian Capital Territory

The Australian Capital Territory, in 2004, was the first jurisdiction to adopt a dialogue model ofstatutory human rights protection following the lead of the United Kingdom and New Zealand.50

During consultations on the proposal several submissions advocated protection of the right to a cleanand healthy environment but the Consultative Committee and the ACT Government were notpersuaded. In the ACT, planning and development is regulated by both Commonwealth and ACTlegislation and statutory land use plans with commendable provisions, and other legislation alsoprotects environmental values, as is appropriate for the national capital.

After an amendment of the Bill was moved successfully by ACT Greens MLA Kerry Tucker, theHuman Rights Act in 2004 required that the Act be reviewed after its first year of operation with thereport to the Attorney-General to include an assessment of whether environment-related human rightswould be better protected if there were statutory oversight of their operation by someone withexpertise in environmental protection.51 The Review Report, having discussed the range of statutesand oversight mechanisms protecting the environment recommended: “The Government should notconsider specific mechanisms to protect environment-related rights before other recommendations areaddressed.”52

In 2010 the ACT Economic, Social and Cultural Rights Research Project recommended that theHuman Rights Act 2004 be amended to include economic, social and cultural rights including “theright to health, including food, water, social security and a healthy environment”.53 A BackgroundPaper for the project noted the case law under several treaties; that the right to a healthy environmentcould prevent pollution and contamination and occupational accidents and diseases, and that thirdparties carried obligations to protect the right.54

In 2014 the ACT Justice and Community Safety Directorate reviewed the operation of the right toeducation in the Act and whether other economic, social or cultural rights should be included and howthey might operate over time. On health and environment-related rights it said:

The Government considers that right to health has a broad scope, extending to the underlyingdeterminants of health. Potentially this could bind the Government to consider wide ranging factorssuch as air and soil quality levels. Additional requirements to monitor and report against the variousunderlying determinants of health would impose a significant burden on the Territory. Further there isconsiderable overlap between Territory and Commonwealth responsibility in relation to health fundingand service delivery that would create jurisdictional uncertainty in relation to the scope and applicationof a right to health. The Government therefore considers that the right to health is not suitable forinclusion into the HRA.55

49 See Momcilovic v The Queen (2011) 245 CLR 1 and other case law on the proportionality principle in human rights case law.

50 Bill of Rights Act 1990 (NZ) and Human Rights Act 1988 (UK). The operation of these Acts is discussed in the ACT Bill ofRights Consultative Committee, Towards and ACT Human Rights Act: Report (Canberra, 2003) Ch 3.

51 Section 43(2)(b) of the Human Rights Act 2004 (ACT).

52 ACT Department of Justice and Community Safety, Human Rights Act 2004: Twelve-Month Review (Canberra, June 2006)p 56.

53 Charlesworth H, Byrnes A, Thilagaratnam R and Young K, Australian Capital Territory Economic, Social and Cultural

Rights Research Project Report 2010 (Canberra 2010), 17.

54 McKinnon G, “Background Paper: Economic, Social and Cultural Rights: Implications for the Environment, Energy andWater” in Charlesworth H, Byrnes A, Thilagaratnam R and Young K, Australian Capital Territory Economic, Social and

Cultural Rights Research Project Report 2010 (Canberra, 2010) pp 4-5 [14]-[22].

55 ACT Government, Justice and Community Safety Directorate, Economic, Social and Cultural Rights in the Human Rights Act

2004: Section 43 Review, (November 2014).

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The Human Rights Amendment Bill 2015 that gives effect to the Review recommendations doesnot include a right to safe and healthy environment. It recognises important cultural rights forAboriginal and Torres Strait Islander people based on Victoria’s Charter provisions, imposes on publicauthorities a duty to protect the right to education, and clarifies the rights of children.

The Human Rights Act has to be taken into account during law and policy development with theaim of creating a human rights culture in the ACT. Notwithstanding this, there have been only a fewcases in the ACT that have raised environment-related rights, many of which have not been successfulon the human rights arguments.56 The legislation sets a high bar, consistent with international humanrights law, that one or more human rights has to have been engaged, that limitations on those rightscannot be demonstrably justified in a free and democratic society, and that a rights infringement hasoccurred.

Victoria

The Charter of Human Rights and Responsibilities Act 2006 (Vic) is Australia’s second sub-nationalhuman rights charter. It applies to public authorities, including local governments. In September 2015the eight-year review of the Charter was tabled in the Victorian Parliament.57 Its author, Michael BrettYoung, recommended a range of ways to make it more accessible, effective and practical. Broadlysupportive of the Charter, the Review’s 52 recommendations included that the Victorian EqualOpportunity and Human Rights Commission be given responsibility for providing human rightseducation within the public sector, including to local government councillors, and to staff of localgovernment and other public sector bodies. The Review noted that several submissions had raisedissues “in relation to environmental justice, climate change, sustainable development and a healthyenvironment”,58 but did not recommend including a new right to a healthy environment. Otherlegislation promotes public health,59 and the Review did make recommendations about the Actapplying to the provision of public transport, public health services and water supply. It supportedbuilding a human rights culture, more effective parliamentary scrutiny, and mechanisms to engage theprivate sector including by establishing a Corporate Charter Champions group, and working withbusiness to build understanding of the Charter to which they could “opt in”. It also recommended thatlocal laws be made subject to the Charter by amending the Local Government Act 1989 (Vic) so thatthe Minister can consider compatibility issues when deciding whether to revoke a local law, and thatthe Act be amended to confer a right of action for a remedy, as in the ACT. It recommended that thepublic have access to dispute resolution at the Victorian Equal Opportunity and Human RightsCommission, and that the Victorian Civil and Administrative Tribunal decide whether their rights havebeen breached. It recommended a further review four years after the commencement of therecommended complaint and remedies provision, and that the review consider including economic,social and cultural rights and available remedies.

An interesting emerging issue raised in the review is the influence of rights charters on the variousnational schemes for the adoption of harmonised legislation. The review recommended that Victoria

adopt a whole-of-government policy that, in developing a national scheme, the Charter should apply tothe scheme in Victoria to the fullest extent possible. Alternatively, the national scheme should

56 See eg, privacy and enjoyment of property, fair hearing, frivolous applications: Warren Gardner & Julie Beaver v ACT

Planning and Land Authority (Administrative Review) [2010] ACAT 64; Thomson v ACT Planning and Land Authority

(Administrative Review) [2009] ACAT 38; procedural rights: Concerned Citizens of Canberra v Chief Planning Executive

(Planning and Land Authority) [2014] ACTSC 165; fair hearing right: Thomson v ACT Planning and Land Authority

(Administrative Review) [2009] ACAT 38; National Trust of Australia (ACT) v ACT Heritage Council (Administrative Review)

[2015] ACAT 52; freedom of information: Allatt & ACT Government Health Directorate [2012] ACAT 67: protection of thefamily and freedom of religion concerning landscaping impacts of a development application: Oberoi v ACT Planning and Land

Authority (Administrative Review) [2015] ACAT 65.

57 Brett Young M, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act

2006 (State of Victoria, 2015).

58 Brett Young, n 57, p 243.

59 See eg, Public Health and Wellbeing Act 2008 (Vic). See also State of Victoria, Victorian Public Health and Wellbeing Plan

2015-2019.


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incorporate human rights protections equivalent to, or stronger than, the Charter. In developing anational scheme, the Government should consider separately the questions of protection and promotionof human rights through scrutiny of legislation, the interpretation of legislation, whether regulators andothers involved in administering a national scheme in Victoria are public authorities, and oversight andcompliance mechanisms.60

Several submissions from local councils to the 2015 review, including Hobsons Bay City,Boroondara City Council and Brimbank City Council, demonstrate satisfaction with the application ofthe Charter to councils, councillors and members of council staff who are public authorities under theCharter. Each supported the Charter and referred to its positive influence on council policydevelopment, but also suggested amendments to improve its operation. Brimbank City Council calledfor the Charter to recognise climate change as a human rights issue. The Review report made severalrecommendations to strengthen the influence of the Charter on local councils.

A 2011 review by the Victorian Parliament’s Scrutiny of Acts and Regulations Committee(SARC) considered whether it should protect additional rights. The Committee noted that it hadreceived “a number of submissions supporting the inclusion of environmental rights” both for thebenefit of individuals and as “a stand-alone right that the environment itself be accorded the right toexist”.61 The Committee recommended against adding new rights to the Charter, noting that currentlaws did not demonstrate a problem needing to be rectified, and that it was unlikely that better publicpolicy outcomes would be achieved by the courts commenting on the appropriateness of resourceallocation in areas such as health, education, or public housing.62 The Victorian Government agreed,noting that its priority was to protect civil and political rights and that compelling evidence had notbeen presented to expand the Charter to include other rights.63 Victoria has had more successfulreview applications concerning environment-related rights than the ACT.64

JURISDICTIONS WITHOUT CHARTERS OF RIGHTS

New South WalesIn 2001 an inquiry report by the NSW Legislative Council’s Standing Committee on Law and Justiceconcluded that it was not in the public interest (especially parliamentary supremacy and judicialindependence) for the NSW government to enact a statutory Bill of Rights. It recommended insteadthe establishment of a Parliamentary Scrutiny of Legislation Committee similar to the Senate Scrutinyof Bills Committee, resourcing for that and an amendment of the Interpretation Act 1987 (NSW) toconfirm the common law position that judges are able to consider international treaties andconventions to which Australia is a party, when there is an ambiguity in a NSW statute.65

Environmental rights were noted in passing in the inquiry report.

QueenslandIn 1993 the former Electoral and Administrative Review Commission (EARC) recommended that aQueensland Bill of Rights be adopted. In 1998 the Queensland Parliament’s Legal, Constitutional and

60 Brett Young, n 57, p 209, rec 47.

61 Victorian Parliament, Scrutiny of Acts and Regulations Committee, Review of the Victorian Charter of Human Rights and

Responsibilities Act 2006: Final Report (Melbourne, 2011) at [259].

62 Victorian Parliament, Scrutiny of Acts and Regulations Committee, n 61 at [260]-[269].

63 Parliament of Victoria, Scrutiny of Acts and Regulations Committee, Review of the Charter of Human Rights and

Responsibilities Act 2006: Victorian Government Response (14 March 2012) p 6 [2.10].

64 See eg, participation, service and access rights: Slattery v Manningham City Council [2013] VCAT 1869 where acomprehensive and indefinite ban on entering council buildings against a resident against with psychological disabilities wasfound to be discriminatory and in breach of the Charter cf Richardson v City of Casey Council [2014] VCAT 1294 whereexclusion from council question time was found to be justifiable. A Council approval was affirmed as non-discriminatory andsupporting freedom of religion: Rutherford v Hume City Council [2014] VCAT 786. In Kerrison v Melbourne City Council

2014] FCAFC 130 a Council requirement that “Occupy Melbourne” protestors leave public gardens and remove tents and otheritems was held to be rights-compliant and proportionate in the circumstances. Access to housing has been an issue in manycases in both the ACT and Victoria.

65 New South Wales Parliament, Legislative Council, Standing Committee on Law and Justice, A NSW Bill of Rights (Sydney,2001).

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Administrative Review Committee recommended against implementing that recommendation, citingconcerns about its impact on the judicial function, possibly increased litigation beneficial to the moreprivileged, the costs of the proposal, its ineffectiveness in relation to private sector activities anduncertainty about the rights best covered. Environmental rights were mentioned only briefly in thereport.66 An educational initiative about human rights followed.67

In August 2015 the Queensland Government agreed to conduct a Parliamentary Inquiry into aCharter of Human Rights and Responsibilities during its current term,68 a development that severalstakeholder organisations welcomed. As in New South Wales, key issues for the inquiry may includeobligations on the business sector and land use policies, particularly in relation to the impacts ofmining and coal seam gas activities on human rights, and climate change policies in coastal shires.The inquiry began on 3 December; reporting by 30 June 2016.

Northern Territory

In 1995 the Northern Territory Legislative Assembly’s Constitutional Development Committeereleased Discussion Paper No 8: A Northern Territory Bill of Rights? In 2005, in consideration of thequestion of whether the Territory should “graduate” to statehood, the Statehood Steering Committeewas established by the Legislative Assembly to consult and educate the Territory’s community. In May2007, the Steering Committee’s discussion paper, “Constitutional Paths to Statehood” contained asection about a Northern Territory Bill of Rights complemented later by a fact sheet entitled, “What isa Bill of Rights?”

South Australia

Private member’s human rights bills in 2004 and 2005 have not proceeded. The 2004 Bill introducedby the Hon Sandra Kanck MLC was modelled on the Human Rights Act 2004 (ACT) and included anequivalent clause concerning a 12-month review of whether environment-related human rights wouldbe better protected if there were statutory oversight of their operation by a person with expertise inenvironment protection.69

Tasmania

There have been at least two attempts in Tasmania to introduce a Human Rights Charter. In 2006 theTasmanian Law Reform Institute conducted a three-month consultation for the Tasmanian Governmenton whether and how human rights could be better protected and enhanced in Tasmania. The Instituterecommended that the proposed Charter include “[t]he right to a safe environment and to theprotection of the environment from pollution and ecological degradation”, modelled on s 24 of theSouth African Bill of Rights.70 A majority of submissions supported better human rights protection inTasmania. The Tasmanian Government in response deferred further action until the National HumanRights Consultation had concluded.71 In 2010 the Tasmanian Government undertook anotherconsultation on a model for a Human Rights Charter, including on an “environmental sustainability”right to have the environment protected for the benefit of present and future generations; encouragecommunity involvement in resource management and planning; and promote the sustainable

66 Legislative Assembly of Queensland, Legal, Constitutional and Administrative Review Committee, The Preservation and

Enhancement of Individuals’ Rights and Freedoms in Queensland: Should Queensland Adopt a Bill of Rights?, Report No 12(November 1998).

67 Brennan SJ AO, n 46, pp 237-238.

68 Australian Lawyers for Human Rights, Leading Australian Human Rights Lawyers Commend Queensland ALP on Rights

Leadership (1 September 2015).

69 Human Rights Bill 2004 and Human Rights Monitors Bill 2005.

70 Tasmanian Law Reform Institute, A Charter of Rights for Tasmania, Report No 10 (October 2007) pp 3, 11, 42, 125, 136-137.

71 Brennan SJ AO, n 46, p 237.


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development of natural and physical resources and the maintenance of ecological processes andgenetic diversity.72 “Budgetary constraints” are said to have caused the Charter proposal not toproceed.73

Notwithstanding that Tasmania does not have a rights charter, in 2013 a project looking at the roleof local government used language consistent with human rights and responsibilities, including inrelation to fostering a sense of place and security, engaging with communities in an inclusive manner,promoting sustainability and social connectivity.74

Western Australia

In 2007, the Consultation Committee for a Proposed WA Human Rights Act recommended thatWestern Australia adopt a Human Rights Act, including a right to health amongst other economic,social and cultural rights.75 These recommendations have not been implemented. In 2014-2015 afurore erupted over possible plans to reallocate public funding from up to 150 remote townshipsassessed against a set of “liveability” criteria.76

CONCLUSIONS

The discussion above suggests that to realise “human rights cities”, key issues include access tomulti-modal sustainable transport systems and clean air, better coordination of strategic, bioregionaland local land use planning; the provision of living and non-living infrastructure that responds tochallenges like population growth, climate change and our ageing population; more focus onpreventative health, affordable housing, participation rights, quiet enjoyment of property rights andlivelihoods; and more funding for local councils (with appropriate coordination oversight andaccountability and scaling up to regional governance).77

Residential areas near major freight transport routes with high levels of diesel emission particulatematter and poor infrastructure and services, and rural residents concerned about the environmental,health and water impacts of mining activities (including open cut mining and unconventional naturalgas sources), are likely to be interested in the protections offered by environment-related charterrights, should they apply in their jurisdiction.

The Federation White Paper on the Reform of the Federation is keenly awaited as it is likely topropose some new directions for the current suite of intergovernmental agreements and engage withthe issues of regional and local government planning and service delivery in cities, including in remoteIndigenous communities. It should also engage with the emerging issue of charter rights influences onnational legislative schemes.

A broad range of international and domestic stakeholders seem to agree that human rights citiesare an aspiration worth striving for. The National Human Rights Consultation learnt that Australiansseek better protection of their rights to basic amenities (water, food, clothing and shelter), healthcareand safe environments. A welcome step towards the better implementation of Australia’s human rightsobligations would be for Queensland to become the next jurisdiction to adopt a charter of rights,having considered the positive experiences in other jurisdictions, followed by the introduction of anational Human Rights Act with express environmental rights.

72 Tasmanian Government, Department of Justice, A Charter of Human Rights and Responsibilities for Tasmania? (Hobart,2010).

73 Schokman B, Human Rights Protections in Tasmania a Vital and Cost-effective Way to Promote Human Rights (HumanRights Law Centre, Melbourne, 2012).

74 Champion C, Howard J, Adams D, Planning Institute of Tasmania (Local Government Association, Tasmania and TasmanianGovernment, 2013).

75 Consultation Committee for a Proposed WA Human Rights Act, A WA Human Rights Act (Perth, 2007).

76 Perpitch N, Number of WA Aboriginal Communities Facing Axe Revealed in Leaked Strategy (26 March 2015).

77 Adams S, Crowley M, Forinash C and McKInstitute H, Regional Resilience Primer (Institute for Sustainable Communities,2015).

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Documents

Human rights cities – how does Australia fare