BY KENT BLORE

Late last year, the Dutch case of Urgenda made international headlines when the Dutch Supreme Court found its government in breach of the rights to life and privacy for failing to scale up its emissions reductions targets to combat climate change. In the wake of Urgenda, Scott McDougall, the Queensland Human Rights Commissioner, has declared that climate change is now a mainstream human rights issue. While momentum is building for recognition of this status, it is not yet a foregone conclusion that cases like Urgenda can be translated uncritically to the domestic Australian context. Nonetheless, as international authority continues to mount, the question will eventually arise as to whether the human rights enumerated in the Human Rights Act 2004 (ACT), the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2019 (Qld) are engaged by government decisions which contribute to climate change.

This post canvasses the emerging international consensus that inaction on climate change limits human rights, foremost among them the right to life. However, any translation of that position to the Australian context requires a number of issues to be worked through. This post raises six questions: (1) Has an international consensus crystallised? (2) Are the rights relied upon elsewhere different? (3) Are human rights as understood in Australia different? (4) Do these human rights in Australia apply to future generations as well as the present generation? (5) Are the rights at stake individual or collective in nature? (6) Is the test for causation different under the Australian human rights Acts?

None of these issues is necessarily fatal to domestic recognition of the link between climate change and human rights. Given the possibility that an Australian court may hold that the right to life is engaged by inaction on climate change, government entities in the ACT, Victoria and Queensland may need to start thinking about the impacts of their decisions on climate change and human rights.

Growing link between climate change and human rights

In 2015, the Paris Agreement drew an explicit link between climate change and human rights. The preamble appealed to nation states to ‘respect, promote and consider their respective obligations on human rights’ when taking action to address climate change. That link became tangible in the Pakistani case of Ashgar Leghari v Pakistan, decided the same year. The Lahore High Court found that government inaction to adapt to the effects of climate change infringed a farmer’s constitutional rights to life and human dignity. Two years later, in an advisory opinion, the Inter-American Court of Human Rights recognised the ‘undeniable relationship’ between protection of the environment and protection of the rights to life and human dignity under arts 4(1) and 5(2) of the American Convention on Human Rights.

Then in 2018, in The Netherlands v Urgenda Foundation, the Hague Court of Appeal upheld a District Court judgment that had ordered the Dutch government to take more effective action on climate change. Whereas the District Court had based its decision on tortious liability, the Court of Appeal grounded its decision in human rights. The Court of Appeal found that the Dutch government has a positive duty to protect the rights to life and privacy of its citizens, and that failure to adopt more stringent emission reduction targets would amount to a breach of those rights under arts 2 and 8 of the European Convention on Human Rights (ECHR). At the end of December 2019, the Supreme Court of the Netherlands upheld the ruling.

In September 2019, the Human Rights Committee (UNHRC) – which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR) – reissued its general comment regarding the right to life under art 6. Article 6 of the ICCPR is the progenitor of the right to life under the human rights legislation in the ACT, Victoria and Queensland. The Committee noted that climate change presents one of ‘the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’. Accordingly, the state’s obligation to respect and ensure the right to life requires states to take measures to address climate change. The Human Rights Committee applied this linkage between human rights and climate change in a case for the first time one month later in Teitiota v New Zealand. The Committee accepted that turning away climate refugees may infringe the right to life. A majority nonetheless found that Ioane Teitiota’s home state of Kiribati had not yet become so uninhabitable as to engage the right to life, though in the future, rising sea levels may threaten the lives of I-Kiribati. Accordingly, at least for now, New Zealand did not breach Ioane Teitiota’s right to life by deporting him back to Kiribati.

The cases are still coming. In May 2019, a group of Torres Strait Islanders filed a complaint with the UNHRC, alleging that the Australian government’s failure to mitigate the effects of climate change will deny them their cultural rights, for example, their right to access sacred sites that will be lost to rising sea levels (see AUSPUBLAW’s July 2019 post on that complaint here). In another matter, Greta Thunberg and 15 other children have filed a complaint with the Committee on the Rights of the Child – the treaty monitoring body for the UN Convention on the Rights of the Child. They allege that Argentina, Brazil, France, Germany and Turkey have breached their rights to life, health and culture, by failing to take adequate action to address climate change. These complaints face a number of hurdles, but they go to show that the case law to date on the link between human rights and climate change is likely only the first wave of a growing jurisprudence.

A countertrend can be seen in recent US authority in relation to rights under its constitution. In 2016, in the case of Juliana v United States, the US District Court held that the Fifth Amendment to the US Constitution – which protects against deprivation of ‘life, liberty, or property, without due process of law’ – encompasses ‘the right to a climate system capable of sustaining human life’. The ruling was recently overturned on appeal to the Ninth Circuit Court of Appeals. The majority found that there is ‘compelling evidence’ that we are headed for ‘environmental apocalypse’. But even assuming that a constitutional right to a safe climate system exists, that ‘impressive case for redress must be presented to the political branches of government’, rather than the courts. In a powerful dissent, Judge Staton reaffirmed a right to a safe climate system which is capable of judicial enforcement.

Issues in translating emerging consensus to Australia

A pattern is emerging. Courts are increasingly drawing a link between climate change and human rights. But translating this international trend to the domestic Australian context presents a number of issues. First, given that the Paris Agreement was adopted by consensus, there is at least international agreement that there is some link between climate change and human rights (as acknowledged in the Paris Agreement’s preamble). However, arguably, the consensus about the precise nature of the link is still emerging. An Australian court might be reluctant to follow the lead of the Dutch Supreme Court until it is clear that a consensus has crystallised, especially when there is US authority that points in the other direction (though in many respects, the US is an outlier in international human rights law and now environmental law, having begun the process to withdraw from the Paris Agreement).

Second, some of the rights found to be limited by inaction on climate change are worded differently from the equivalent right in the Australian human rights Acts. For example, in Urgenda, the Dutch Supreme Court found a breach of the state’s positive obligation to ‘respect’ one’s ‘private life’ under art 8 of the ECHR. The concept of ‘private life’ has received an expansive reading in Europe to embrace ‘physical and psychological integrity’ as well as ‘notions of the quality of life’. By contrast, the equivalent right in Australia is expressed as a negative right not to have one’s privacy unlawfully or arbitrarily interfered with. The difference in wording may mean that the positive right to a private life in Europe gives rise to a standalone right to dignity, whereas the negative right to privacy in Australia is concerned more with the humbler topic of confidentiality of private information. Climate change may have profound impacts on human dignity, but not confidentiality.

The same cannot be said of the right to life. The UNHRC has clarified that inaction on climate change engages the right to life under art 6 of the ICCPR. The text of the equivalent right to life in the ACT, Victoria and Queensland is indistinguishable.

Third, the statutory context may militate a different reading of the equivalent rights in Australia. The protected human rights must be read together harmoniously. Whether inaction on climate change engages the right to life depends on whether the right includes access to the resources required for life, such as a climate system capable of sustaining human life. Yet when Queensland decided to go further than the ACT and Victoria and protect the right to access health services in s 37 of its Human Rights Act, the decision was accompanied by a clear indication that the scope of the right would not include the ‘underlying determinants of health, such as food and water … and environmental factors’. It might be thought curious if the underlying determinants of life are excluded from s 37, only to be protected inadvertently under the right to life in s 16. As Emerton J said in one Victorian case, ‘a clear statement in the explanatory memorandum that the legislature did not intend the Charter to create a certain kind of right must … be relevant to construing the rights that have been included in the Charter’.

On the other hand, when it comes to the right to life itself, the explanatory note in Queensland may point in the other direction. It states that the right to life is intended to impose obligations on the State to ‘take positive measures to address … threats to life such as malnutrition and infant mortality’. Moreover, the text of the Queensland Human Rights Act draws an express link between the environment and human rights in s 28(2)(e), which provides that Indigenous peoples must not be deprived of the right to ‘conserve and protect the environment’ of their traditional lands, waters and coastal seas. It cannot be said that the Queensland legislature intended to exclude environmental impacts from the content of all of the human rights protected under the Act. The statutes in the ACT and Victoria offer fewer clues: they enshrine neither a right to health nor an Indigenous right to protect the environment.

Fourth, some of the emerging consensus is based upon a breach of the human rights of future generations. For example, in Ashgar Leghari, the breach of the rights to life and human dignity were said to be reinforced by notions of ‘inter and intra-generational equity’. The UNHRC’s general comment refers ‘to the ability of present and future generations to enjoy the right to life’. It is not clear that future generations hold human rights under the Australian human rights Acts. Section 6 of the ACT Human Rights Act is representative. It states that ‘[o]nly individuals have human rights’, using the present tense and presupposing that the individual already exists. On this basis, it might be thought that humans who are yet to be born do not hold human rights under the Australian human rights Acts. On the other hand, a transitional provision in s 106 of the Queensland Human Rights Act clarifies that nothing in the Act affects any law relating to termination of pregnancy or the killing of an unborn child. The need to clarify this might indicate that the right to life would otherwise extend to people yet to be born.

In any event, the courts in Juliana and Urgenda side-stepped the issue of whether future generations hold human rights. In Juliana, the US District Court found that it was unnecessary to address whether the plaintiffs had standing to sue on behalf of future generations, because the plaintiffs themselves had alleged that they are suffering the effects of climate change now. That position was upheld on appeal. Likewise in Urgenda, the Hague Court of Appeal considered it sufficient that ‘it is without a doubt plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced’. Accordingly, it was irrelevant whether the Urgenda Foundation also had standing to sue on behalf of future generations.

In this connection, there may be a difference of views about the imminence of the danger required to engage the right to life. In Urgenda, the Dutch Supreme Court noted that the existing authorities recognise an obligation to take positive steps to protect life if there is a ‘real and immediate risk’ to life. The Court explained:

In this context, the term ‘real and immediate risk’ must be understood to refer to a risk that is both genuine and imminent. The term ‘immediate’ does not refer to imminence in the sense that the risk must materialise within a short period of time, but rather that the risk in question is directly threatening the persons involved. The protection of Article 2 [of the ECHR] also regards risks that may only materialise in the longer term.

By contrast, in Teitiota v New Zealand, a majority of the UNHRC found that the risk that the entirety of Kiribati will be lost to sea level rise in the next 10 to 15 years was not sufficiently imminent to engage the right to life. As Committee Member Muhumuza said in dissent, the level of imminence required by the majority seems to require us ‘to wait for deaths to be very frequent and considerable’ before we can conclude that the right to life is engaged. It remains to be seen whether that level of imminence is required by the UNHRC outside of the context of climate refugees. The Torres Strait Islanders’ complaint presently before the Committee may answer that question.

Fifth, the dispersed nature of the effects of climate change means that it may be difficult to identify its individual victims. We know that individuals will perish as bushfires become more intense, but we do not know who they will be. This was not an issue for the Dutch Supreme Court because ‘[t]he protection afforded by Articles 2 and 8 [of the ECHR] is not limited to specific persons, but to society or the population as a whole’. However, as noted above, under the Australian human rights Acts, ‘only individuals have human rights’, not society collectively. The protection of cultural rights under each Act nonetheless recognises that human rights may be held by individuals ‘in community with others’. Perhaps on some level all human rights are collective in this sense. On a societal level, all human rights are held by individuals in community with others. Moreover, there is Victorian authority that ‘it is not necessary for an identifiable individual to be affected in order for a human right to be engaged so as to trigger the obligations imposed on public authorities …  A potential effect on the rights of a class of persons is sufficient for a Charter right to be engaged’.

Sixth, the test of causation may be different. Under the Australian human rights Acts, a right is engaged by conduct of the executive branch of government, if the right is ‘relevant’ to, or ‘limit[ed]’ by, an act or decision. The nexus required between the act or decision and the impact on human rights remains unsettled. In a recent ACT case, Burns J held that a decision only limits a right if it is the ‘operative cause’ of the impact on the right. To date, climate change litigation has routinely failed to establish that individual actions are the operative cause of the harm, since both the harm and its causes are global in scale. Nonetheless, in a recent Victorian decision, Dixon J held that a human right may be limited by a decision, even though a subsequent act or decision will be the operative cause of the impact on the human right. Arguably, the Dutch Supreme Court’s approach to causation in Urgenda would satisfy either approach. By framing responsibility in terms of the remaining carbon budget, the Court appreciated that ‘each reduction of greenhouse gas emissions has a positive effect on combating dangerous climate change’. It follows that ‘no reduction is negligible’, and conversely, every failure to reduce emissions contributes to the problem.

Time to start considering the human rights impacts of climate change?

As can be seen, the emerging consensus that human rights are limited by inaction on climate change may not translate directly to the human rights enumerated in the Australian human rights Acts. However, none of the potential issues identified in this post is necessarily fatal to the proposition that the right to life in the ACT, Victoria and Queensland requires government action to protect against the worst effects of climate change within our lifetimes. There is at least a real possibility that an Australian court will eventually join the chorus and find that the right to life is engaged by inaction on climate change, especially if the weight of international authority continues to mount.

Under the Australian human rights Acts, government entities have two distinct obligations. One is that they must act, or make a decision, in a way that is compatible with human rights. When reviewing the balance struck by the government entity between the human right and the countervailing societal interests, the court is likely to accord ‘a limited degree of deference to the decision-maker’. The court cannot disturb the government’s assessment of compatibility ‘simply because it takes a different view of the act or decision on the merits’. Because decisions which involve impacts on climate change will often involve complex policy considerations, arguably the courts will give a greater degree of latitude to the government entity to decide how the balance should be struck.

Urgenda and Juliana are both authority for deference when it comes to government decisions having some bearing on climate change. In Juliana, the reason why the majority found that the courts could not provide redress was that the plaintiffs sought an order requiring the US government to prepare and implement a plan to phase out fossil fuel emissions and draw down excess carbon dioxide. The majority found that such a plan would ‘necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches’. In Urgenda, the Dutch Supreme Court found that the international consensus was that a nation like the Netherlands needed to reduce its greenhouse gas emissions by 25 to 40 percent compared to 1990 levels by 2020, but the Court only ordered a reduction of 25 percent, in recognition that it was up to the other branches of government to decide how far to take emissions reductions beyond the Netherlands’ minimum fair share. Further, the Court ‘le[ft] the State free to choose the measures to be taken’ to achieve that target. Applying a similar level of deference would leave the ACT, Victoria and Queensland free to decide how the polity will tackle climate change, especially where the particular act or decision under review is ‘but one … piece of jigsaw’ in the government’s overall climate change policy.

However, this will not exempt government entities from having to think about the human rights repercussions of climate change. The second obligation under the Australian human rights Acts is that government entities must give proper consideration to human rights. This procedural obligation may apply even if the ultimate outcome is compatible with human rights. The reason is that ‘if rights had been properly considered a different decision might have been made’ which would be better from a human rights perspective. Accordingly, government entities in the ACT, Victoria and Queensland leave themselves exposed to the risk of litigation if they completely fail to turn their minds to the impact of their decisions on climate change and the right to life, at least where the decision will have an appreciable impact on the remaining carbon budget. That risk came to fruition in the recent English case of Plan B Earth v Secretary of State for Transport, in which plans for a third runway at Heathrow Airport came unstuck because the Secretary of State had failed to take the Paris Agreement into account.  Although a full understanding of the link between climate change and human rights is still emerging, it may be time that government entities start turning their minds to the issue.

Kent Blore is a Senior Principal Lawyer at Crown Law in Queensland, and a committee member of the Queensland chapter of the Australian Association of Constitutional Law. All views are his own.

Suggested citation: Kent Blore, Climate change and human rights under the Australian Charters, on AUSPUBLAW (3 April 2020) <https://auspublaw.org/2020/04/climate-change-and-human-rights-under-the-australian-charters>