The Environmental Defenders Office (EDO) was pleased to contribute to the Parliamentary Joint Committee on Human Rights’ Inquiry into Australia’s human rights framework, which seeks to examine the effectiveness of Australia’s current human rights framework including whether the Australian Parliament should enact a national Human Rights Act.  

With the recent United Nations General Assembly resolution that acknowledged access to a clean, healthy, and sustainable environment as a fundamental human righti – which was voted for in favour by Australia – this Inquiry comes at a critical time.  

The world is facing the triple planetary crises of climate change, biodiversity loss and the toxification of the environment, recognised as the greatest human rights threat of our era.ii In Australia, we are increasingly experiencing the effects of climate change, including worsened natural disasters such as bushfires and floods. Environmental human rights defenders protesting against government inaction and corporate contribution to these crises are increasingly being repressed by new state anti-protest laws, and are facing police harassment, arrest, and imprisonment. For these reasons, it is essential that a national Human Rights Act or Charter be urgently implemented to better protect Australians’ human rights. 

In making our submission, we made the following recommendations to ensure human rights – including the right to a clean, healthy, and sustainable environment and the protest rights of environmental defenders – are properly safeguarded in Australia under a future national Human Rights Act. In summary, EDO made the following key recommendations and comments: 

  1. The Australian Government should enact a federal Charter or Act of Human Rights and Freedoms (Charter).  
  1. The Australian Government should ratify the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).  
  1. The Charter should include the right to a clean, healthy and sustainable environment (the right to a healthy environment), which should be defined broadly, consistent with international law.  
  1. The Australian Government should not strictly delineate between human rights and the rights of nature in the Charter or in any explanatory memorandum, guidelines or policies. 
  1. The Charter should enshrine the environmental procedural rights that are protected under the Aarhus Convention, in addition to the participation duty of public authorities proposed by the Australian Human Rights Commission (Commission).  
  1. The Charter should enshrine all rights protected under the international human rights treaties ratified by Australia.  
  1. The Charter should include the cultural rights of First Nations Peoples proposed by the Commission. In addition, the Charter should enshrine all rights protected under the Universal Declaration of the Rights of Indigenous Peoples (UNDRIP). Alternatively, the Australian Government should enact legislation to give domestic effect to UNDRIP. Any provision relating to the rights of First Nations Peoples must be developed in culturally appropriate consultation with First Nations Peoples.  
  1. The Charter should include rights to protect environmental human rights defenders, in particular the right to a safe and enabling environment so that they are able to act free from threat, restriction and insecurity in Article 9(1) of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement), and other relevant protest rights in Article 9(2) of the Escazú Agreement.   
  1. The Charter should include a positive duty on public authorities as proposed by the Commission.  
  1. The Charter should explicitly state that, consistent with international law, the positive duty on public authorities extends to a duty to ensure that private actors act consistently with the human rights contained in the Charter. The Charter should also impose a duty on businesses and other private actors to act consistently with human rights and should include accessible remedies for harmful interference on human rights by private actors.   
  1. The Charter should include a participation duty as proposed by the Commission, however this duty should require public authorities to ensure the effective participation of all people who are most at risk of experiencing environmental harm in addition to First Nations Peoples, children, and people with disability, such as women, people who are financially disadvantaged, older people, people from a racial, ethnic or other minority,  people displaced by natural disasters, culturally and racially marginalised communities, and LGBTIQA+ communities.  
  1. The Charter should ensure access to effective remedies for breaches of human rights including an informal complaints mechanism, access to judicial remedies, and adequate protections for individuals against adverse costs orders, as proposed by the Commission.   
  1. The Charter should establish a rapid response mechanism to protect environmental human rights defenders exercising their rights in conformity with the Charter’s provisions from penalisation, persecution, harassment, or any other form of retaliation for their involvement, similar to the mandate of the Special Rapporteur on environmental defenders under the Aarhus Convention. At a minimum, the Charter must enable expedited access to effective remedies for environmental human rights defenders in urgent matters.   
  1. The role of the Commission should be expanded to include consideration of environmental human rights, including by exercising five key functions:  
    1. advocate for a strong definition of a right to a healthy environment in state and Commonwealth human rights legislation;  
    2. promote and increase awareness of the interrelationship between human rights protection and protection of the environment;  
    3. conduct research into the interrelationship between human rights protection and the protection of the environment in Australia;  
    4. monitor and scrutinise Australia’s performance in relation to its human rights commitments within the context of addressing environmental protection;  
    5. investigate and conciliate human rights complaints made within the context of the interrelationship between human rights and the triple planetary crises of climate change, biodiversity loss and a toxic environment. 

For a detailed look at our recommendations, see EDO’s submission to the Parliamentary Joint Committee on Inquiry into Australia’s Human Rights Framework. 

i United Nations General Assembly, The Human Right to a Clean, Healthy, and Sustainable Environment, UN Doc. A/RES/76/300 (28 July 2022). 

ii Office of the High Commissioner of Human Rights (OHCHR), ‘Environmental Crisis: High Commissioner Calls for Leadership by Human Rights Council Member States’ (Web Page, 13 September 2021).  <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27443>.