A federal Human Rights Act: Turning over a new leaf on climate litigation?
29.4.2024
In July 2022, the 76th session of the United Nations General Assembly adopted a landmark resolution to recognise the right to a clean, healthy and sustainable environment by a vote of 161 in favour, 0 against and 8 abstentions. Whilst Australia voted in favour of the resolution, the Federal Government has thus far not indicated any desire to legislate this domestically.
In March 2023, the Australian Human Rights Commission ('the AHRC') launched a Position Paper outlining a proposed federal Human Rights Act. Notably, amid the 28 rights outlined was the right to a healthy environment. This Position Paper has since formed the basis of an inquiry into a Human Rights Framework for Australia by the Parliamentary Joint Committee on Human Rights (‘the PJCHR’), with the final report due in early 2024. This revived push is an exciting development which has come after a decades-long call from the legal and general community alike for more comprehensive statutory protection of human rights.
This article explores the potential for a federal Human Rights Act to be utilised in the emerging area of climate litigation as a tool for the scrutiny of decisions by parliament, the executive and public entities. It will examine the proposed Act in comparison to existing State and Territory Human Rights Acts. It will go on to consider the rights to be protected under the Act with reference to overseas jurisdictions. Finally, it will consider the Queensland case of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 ('Waratah Coal v Youth Verdict (No 6)'), the first instance of climate litigation under a State or Territory Human Rights Act and how this may influence and shape the potential for a federal Human Rights Act to expand the toolkit of climate litigants moving forward.
The proposed federal Human Rights Act
In its Position Paper, the AHRC defines the proposed model for the federal Human Rights Act as a 'legislative dialogue model'. This model aims to create a ‘dialogue’ between the executive, legislature and judiciary. This will form a framework which will better enable the protection of human rights.
The model can broadly be summarised as below:
Accountability in Executive decision-making: The Executive must consider human rights when making decisions regarding laws and policies.
Parliamentary scrutiny measures: Parliament would be required to consider human rights when drafting and debating laws through pre-existing parliamentary scrutiny mechanisms. The recommendations of the Commission serve to strengthen PCJR, thus enabling it to better complement the proposed Human Rights Act in its review.
Judicial interpretation: Judicial officers would be required to interpret laws in a manner which is aligned with the Human Rights Act provided this is consistent with the ascertainable intention of Parliament (also known as the interpretative clause). This is subject to the limitations clause.
These three components will be explored in more detail in the following sections.
A. An overarching positive duty on decision-makers
This is to be achieved through the imposition of a positive duty to act compatibly with human rights upon public authorities. Given the increasing prevalence of governments contracting out work to the private sector, the term ‘public authorities’ is intended to encompass ‘private businesses, nongovernmental organisations and contractors’ performing public functions alongside governmental entities. The duty was described by the Victorian Attorney-General (in reference to the ‘positive duty’ in the Victorian Charter of Human Rights and Responsibilities) as ensuring that ‘human rights are observed in administrative practice and the development of policy within the public sector without the need for recourse to the courts.’
This duty is composed of two limbs. The first limb is a procedural duty to give ‘proper consideration’ to human rights. The second limb is a substantive obligation to ‘act compatibly’ with human rights. Public authorities would also be required to engage in a 'participation duty' where it is relevant to the 'proper consideration limb.' This would primarily involve the engagement of relevant groups and individuals whose rights may be directly or adversely affected by the policies or decisions. This is largely consistent with State and Territory Human Rights Acts.
B. Parliamentary scrutiny
Within federal Parliament, mechanisms for the scrutiny of human rights within the legislative process do exist. Chief of these is the role of the PJCHR. The key function of the PJCHR is to scrutinise proposed bills and legislative instruments with respect to their adherence to human rights. This is derived from Australia’s international human rights obligations as pursuant to section 7 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (“Scrutiny Act”). The obligations are themselves drawn from international instruments listed in section 3(1) in Scrutiny Act. The PJCHR utilises a limitation assessment to determine whether the identified limitations on rights are justifiable. As part of this process, the committee may consider statements of compatibility with human rights in respect to the bills and disallowed instruments.
While the Position Paper acknowledges the significant progress the PJCHR has made thus far in its protection of human rights, it also identified three key areas of improvement. These included the timeliness of the scrutiny process, adequacy of statements of compatibility and the degree of coordination of the work of scrutiny committees. In respect to timeliness – the Commission recommended amendments to prohibit the passing of bills prior to the tabling of a final report by the PJCHR, in order to prevent the passage of ‘over-hasty’ legislative measures. In respect to width – the Commission had multiple recommendations. This included, amongst others, increasing funding for the PJCHR so it could in turn deal with a greater number of matters. Lastly, the Commission noted that there were significant areas of overlap between the Scrutiny of Bills Committee and the PJCHR which could be streamlined to enable greater efficiency, especially regarding human rights matters.
C. Judicial interpretation
Judicial interpretation is crucial to the application of policies and enforcement of the legislative dialogue model. There are two relevant clauses. The first being the interpretative clause which provides that, where possible, courts should interpret statutes ‘in light of’ the human rights contained in the Human Rights Act. What this means is that courts should preference an interpretation of a legislative instrument which is ‘compatible’ with human rights. This compatibility assessment is carried out with reference to the derived intention of Parliament. This is subject to the second clause, the limitations clause. This states that there may be circumstances in which human rights may be permissibly limited.
The AHRC recommends the adoption of the definition of compatibility found in the Queensland Human Rights Act. This provides that 'an act or decision is compatible with human rights if the act does not a) limit a human right; or b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with [human rights]'.
A key departure from pre-existing State and Territory Acts is that federal judicial officers will not be able to issue a declaration of incompatibility, owing to uncertainty regarding the constitutionality of such a provision. For this reason, the AHRC does not recommend the inclusion of a formal power of declaration of incompatibility (see Momcilovic v The Queen (2011) 245 CLR 1). Instead, it recommends that a court may indicate where a statute can be interpreted in line with the Human Rights Act or where Parliament has indicated an intention to depart from the Act.
Other key proposals of the Position Paper
D. Causes of action
The AHRC recommends that claimants should be able to access an independent cause of action where there has been an alleged breach of human rights by a public authority. Currently, only the ACT allows an independent cause of action to be brought. Queensland and Victoria on the other hand only allow an action to be brought for breaches of human rights when it is raised in conjunction with a separate claim.
The AHRC also recommends that the proposed Act should enable human rights to be raised alongside other legal claims, i.e. a tort claim, criminal proceedings, etc. This will enable greater flexibility for litigants and recognise the multi-dimensional nature of human rights claims. The Position Paper provides an example from the Victorian Charter of Human Rights where a court can grant bail on conditions which are informed by the Charter.
E. Remedies
Currently no State nor Territory Human Rights Act allows damages to be granted as a remedy where there has been a breach of human rights. Outside Australia, the United Kingdom, New Zealand and Canada do provide damages as a remedy for breaches of human rights. The proposed Act will allow for monetary damages to be claimed in the event that a breach of human rights has been found.
What rights would be protected?
The Position Paper suggests 28 rights to be included in the proposed federal Human Rights Act. These rights are designed to implement Australia’s obligations under the International Covenant on Civil and Political Rights (‘ICCPR’) and International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) into domestic law. However, several of these rights are arguably also relevant to a discussion on climate litigation.
These particular rights are: a right to a healthy environment; the right to life; protection of children; protection of families; cultural rights and cultural rights of First Nations peoples.
A. Right to a healthy environment
The basis of the right to a healthy environment is drawn from the existing obligations contained within the ICESCR, being the right to health and the right to an adequate standard of living, as well as the right to life contained within the ICCPR. While none of these conventions explicitly reference the right to a healthy environment, they do place emphasise on health and environmental underpinnings. This is also the case for most interpretations of the right around the world, with most being intrinsically tied to or arising incidentally out of the right to life. This will be discussed in more detail below.
An example where this right has been expressly outlined, however, is in Canada. The right has been implemented as an interpretative guiding principle in the preamble of the Canadian Environmental Protection Act 1999 (‘CEPA’). The Act provides generally for the recognition of a right to a healthy environment for all individuals in Canada. Section 2(1) of the CEPA requires the Canadian government to protect the right to a healthy environment ‘as provided under this Act, subject to any reasonable limits.’
It is important to also consider how broad or narrow the right to a healthy environment should be constructed. A broader construction of the right may involve a general statement to the effect that ‘everyone has the right to a safe, clean, healthy and sustainable environment’ similar to that of CEPA. The advantages of having a broader framing of the right would allow for greater flexibility to changes in international human rights and obligations. However, casting a wider scope could also risk the right being more aspirational in nature and therefore more difficult to concretely enforce.
The AHRC states that the right to a healthy environment will provide every person with the right to an environment which does not adversely affect their health outcomes. The Law Council of Australia has noted that the AHRC’s approach to delineating the scope of rights in relation to the ICESCR, including the right to a healthy environment is more narrowly constructed. Notably, the proposed provision includes the specific right not be subject to unlawful pollution of air, water or soil as well as access to safe sources of food. This sets out a clear set of obligations rather than a more discretionary general principle.
B. Right to life
The right to life is articulated as the right to not be arbitrarily deprived of life and purports to implement Article 6(1) of the ICCPR. The wording itself maintains the broad construction from the existing Queensland Human Rights Act and Victorian Charter. The AHRC Report uses the COVID-19 pandemic as an example of where the right to life may be enlivened to enable greater measures to be taken by the government in order to protect human life.
Internationally, the right to life has been interpreted as implicitly encompassing environmental rights. The Courts in India have determined that the right to life and liberty under the Indian Constitution includes ‘right to [a] healthy environment free from hazardous pollutants’. Further, the Netherlands Supreme Court has echoed a similar sentiment that environmental protection is crucially interconnected with the right of life. This emphasises that the right to life, while able to be distinguished from the right to a healthy environment, is crucial to any argument surrounding climate change.
C. Protection of children
This right implements Article 24 of the ICCPR and Article 3 of the CRC. It relevantly states that every child should be protected without discrimination by reason of their status as a child and that public authorities should consider the best interests of every child as their primary consideration in all actions taken concerning children. The protection of children in this proposed model is distinct from the right of the protection of families found within the State Acts. The AHRC proposed that the protection of children should be distinct to prevent the absorption of their rights into the rights of families.
Maintaining this distinction is notable as climate litigation is a movement which is closely associated with young people i.e. Schools Strike 4 Climate and has a strong emphasis on the intergenerational impacts of climate change.
D. Protection of families
The right implements Article 23 of the ICCPR and references Article 10 of the ICESCR. The AHRC recognises that the term ‘family’ has a broad meaning and does not provide an exhaustive definition for it.
In respect to international environment rights, this right has been articulated in Article 8 of the European Convention of Human Rights as the ‘right to respect for private and family life’. In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, decided in April 2024, the European Human Rights Commission found that this right encompasses a right for individuals to ‘effective protection by State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life.’ This right was breached by the Swiss government due to their failure to reduce greenhouse gas emissions.
Whilst Australia is not a party to this Convention, the inclusion of this right within the proposed Act provides a promising ground for prospective litigants.
E. Cultural rights, and cultural rights of First Nations peoples
The AHRC's proposal seeks to protect the rights of people from particular religious, racial or linguistic backgrounds to enjoy their culture, practice their religion or speak their language. This implements Article 27 of the ICCPR which is based on sections 27 and 28 of the Queensland Human Rights Act.
The AHRC also specifically recognises the cultural rights of First Nations peoples. It recognises that First Nations peoples hold distinct cultural rights. Notably it provides that First Nations peoples should not be denied their right to maintain their relationship with the land and waters which they have connection to under Aboriginal custom and to conserve and protect the environment and productive capacities of their land and waters.
In 2022, the UN Human Rights Committee (‘UNHRC’) determined that Australia violated Torres Strait Islanders’ rights to enjoy culture and family life in their failure to protect Indigenous Torres Islanders from the adverse effects of climate change. Legislating for this right would empower First Nations peoples with an action to pursue public authorities such as the Commonwealth for future violations of their cultural rights. Further, this shift from external to internal governance will provide a greater degree of enforceability. This is pertinent given that areas such as the Torres Strait are increasingly vulnerable to changes in rising sea levels caused by climate change.
Recent landmark litigation: Waratah Coal v Youth Verdict (No 6)
In discussing the potential of a federal Human Rights Act for developing climate litigation, it would be remiss to exclude a key development which has occurred under the State Human Rights Acts.
The case of Waratah Coal v Youth Verdict (No 6) pursuant to the Human Rights Act 2019 (Qld) is the first climate litigation case which has been brought under a Human Rights Act in Australia. The landmark case is the first of its kind to recognise a substantial connection between the approval of mining leases to climate change, and subsequently a limitation on human rights. While novel in concept, this case stands as a crucial precedent to the future development of climate litigation under a federal Human Rights Act which has already indicated a greater emphasis on environmental rights.
A. The challenge
In 2020, a group of youth climate activists based in Queensland brought an action to challenge the approval of a mining lease and environmental authority for Waratah Coal Pty Ltd (‘Waratah Coal’). The mine was part of the Galilee Coal Project which was to be carried out in several locations in Central Queensland, including the Bimblebox Nature Refuge, a protected area.
As part of their challenge, the applicants advanced two grounds of why the approval of the mine would limit the enjoyment of a number of human rights pursuant to the Human Rights Act 2019 (Qld). The first is the Climate Change Ground. This ground identified six affected rights protected under the Queensland Act: the right to life (section 16), the cultural rights of First Nations peoples (section 28), the rights of children (section 26(2)), the right to property (section 24), the right of privacy and home (section 25(a)), and the right to equal enjoyment of human rights (section 15(2)). The applicants argued the human-induced climate change caused by the mine’s greenhouse gas emissions ('GHG emissions') would unjustifiably limit these rights. They alleged that the causal connection between the approval of the lease and the consequent harm from climate change was direct given that without an approval, the coal would not be mined and therefore would not be able to be combusted.
The second ground is known as the Glen Innes Ground. The argument here was that the landowners of Glen Innes, which encompassed the aforementioned Bimblebox Nature Refuge would have their rights to property (section 24) and the right of privacy and home (section 25(a)) affected by the adverse impacts of the mine’s operations.
In response to both grounds, Waratah Coal’s central argument was that the relationship between the approval of the applications and subsequent effects of climate change would be too remote to constitute a limitation on any human rights. They argued that act of approval would not authorise the combustion of mined coal.
Instead, Waratah advanced that the responsibility for the emissions caused by the mine ultimately rests upon the country in which the coal is combusted and therefore the Court should not consider the emissions from their mines in their assessment. Further, they advanced that the mine’s contribution to GHG emissions would ultimately have little impact on national and global emissions. They stated that the effect on emissions could even potentially be positive given that the emissions from the mine can displace lower quality coal (with higher GHG emissions) which would be burnt in its place.
B. The Court’s decision
In coming to a decision on whether the human rights identified had been limited, the Court needed to first determine the central question of whether there would be a substantial connection between the approval of the mining lease and environmental authority and subsequent climate change impacts.
Based upon the agreed facts, the Court found the Project would contribute to climate change as there was a sufficient connection. They noted that separating the mining of the coal with its eventual combustion was not possible. Furthermore, Waratah Coal’s argument that the mine would displace lower quality coal and result in reduced carbon emissions was found to be inaccurate. The Court determined that given the competition was from similarly high ranked coal, there would be little to no material difference in GHG emissions if the mine were not approved.
The Court then turned to evaluating the restriction upon each affected human right. It needed to determine whether there is a permissible limitation to the enjoyment of the right in question. The analysis by the court was guided by a balancing of the purpose of the limitation and the importance of preserving the human right, having regard to the nature and extent of the limitation.
There were further considerations specific to the rights in question. Notably, First Nations people were found to be most likely affected by climate change which would result in an inability to practice their culture rights and cultural displacement. Further, the Court considered that an assessment regarding the right to protect children should take into consideration the intergeneration impact of climate change, extending beyond just the current generation of children. The Court also considered the right to property in the context of a potential loss of property due to the destructive effects of climate change.
Ultimately, the Court determined that the applicants were successful in establishing on both grounds that the rights would be limited by the approval of the Project.
Paving the way for the future?
Waratah Coal v Youth Verdict (No 6) provides a significant contribution to domestic discourse surrounding climate litigation. The Court’s willingness to engage in a discussion on the connection between commercial project leases and climate change and human rights indicates a significant shift in the courts’ treatment towards conceptualising the impacts of climate change. Furthermore, the consideration of the multidimensional nature and impacts of climate change, particularly regarding intergenerational impacts, shines a spotlight on the important balancing exercise which takes place during such applications. These considerations will form the basis for future decisions under a federal Human Rights Act.
The AHRC’s preliminary steps towards the inclusion of more explicit environmental rights signals the opportunity for more targeted litigation around issues surrounding the environmental impacts of climate change. Considering this, Waratah Coal v Youth Verdict (No 6) provides an insight into the potential trajectory for climate litigation in Australia towards a more accountable and accessible landscape for human rights.
Amy Tan is a Bachelor of Arts/Bachelor of Laws student at the University of Sydney and legal assistant at Marrickville Legal Centre.
Suggested citation: Amy Tan, ‘A federal Human Rights Act: Turning over a new leaf on climate litigation?’ (29 April 2024) <https://www.auspublaw.org/blog/2024/4/a-federal-human-rights-act-turning-over-a-new-leaf-on-climate-litigation>