Legal recognition of the human right to a healthy environment as a tool for environmental protection in Australia : useful, redundant, or dangerous?

Jurisdictions around the world are increasingly considering the utility of rights-based approaches to environmental protection, a trend which has been termed the ‘environmental rights revolution’. Although Australia has not embraced this global trend, it is fortunately placed to learn from the experience of other jurisdictions which have already begun to integrate versions of these concepts into their legal systems. The aim of this thesis is to consider the potential utility of one particular rights-based approach within the Australian environmental protection context. The thesis seeks to explore whether legal recognition of the human right to a healthy environment at the international level and at the Australian domestic level might offer some potential benefits for environmental protection (hereafter ‘the right’). In order to explore the possible realisation of these general benefits in a specific environmental protection context, the thesis conducts a case study on Australian water resources management. Firstly, it outlines the nature of existing approaches to environmental protection in Australia, in order to identify the challenges currently facing environmental protection, and to ascertain whether there is room for the adoption of new approaches. It then seeks to explain why Australia has failed to embrace rights-based approaches as a possible means of addressing environmental protection. Having identified various potential rights-based approaches which Australia could adopt, the analysis concentrates on one particular rights-based approach, namely, legal recognition of the human right to a healthy environment. The legal status of the right at international law is considered, concluding that the right may be interpreted as an implied right under the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).1 It is noted that as the right has yet to receive explicit recognition under the Covenant, it is not yet possible to determine the precise content of the right and the obligations it imposes on state parties. Despite this, it is argued that it is possible to identify a number of potential benefits for environmental protection in Australia associated with international legal recognition of the right. Specifically, increased scrutiny of Australia’s environmental protection performance, the opportunity to learn from international experiences with implementation of the right, and the facilitation of comparison against an international standard. The potential realisation of these benefits in the case study context of Australian water resources management is discussed. A number of limitations associated with international legal recognition of the right for environmental protection are outlined, including the fact that the obligations imposed by the right may be largely duplicative of existing international environmental law obligations, and the Australian Government’s human rights record in relation to rights recognised at the international level which are not recognised under domestic legislation. Options for domestic legal recognition of the right are then outlined, explaining that there are constitutional and legislative options for recognition in Australia. A set of potential benefits for environmental protection associated with domestic recognition of the right in other jurisdictions is explored, in order to ascertain whether realisation of these benefits in the Australian context would constitute benefits for environmental protection according to the definition adopted by the thesis. These benefits include increased prioritisation of environmental protection considerations in government decision-making, and increased avenues to bring legal actions in the interests of environmental protection. As it is concluded that the identified benefits would be considered benefits if they could be realised in the Australian context, Chapters Six and Seven discuss the potential realisation of these benefits under specific forms of constitutional and legislative recognition. The case study of Australian water resources management is utilised to demonstrate the potential operation of these benefits in a specific environmental protection context. It is argued that although both forms of recognition are unlikely to occur in the near future, legislative recognition of the right is more likely to be accepted than constitutional recognition. Having evaluated a range of possible legislative recognition options, it is argued that the most preferable form of recognition is recognition of an independent human right to a healthy environment in the context of a broader statutory bill of rights based on the dialogue model at both the Commonwealth and state/territory levels. It is argued that recognition of the right through this form of recognition may be a potentially useful, albeit limited, tool for environmental protection in Australia. The limitations of the right as a tool for environmental protection are outlined, in particular the limitations associated with the form of recognition, the nature and content of the right, and the social and political context in which it must operate. It is concluded that whilst the right may have a potentially useful operation as a tool for environmental protection in Australia, its general utility should not be overstated. This is due partly to the inherently limited nature of the right as a tool for environmental protection, and partly to the limited scope of the thesis research. It is explained that future research is necessary to ascertain further potential benefits associated with recognition of the right in Australia, including consideration of the right’s potential operation in specific environmental protection contexts. However, it is explained that this cannot occur until the normative content of the right is authoritatively outlined, as only then will it be possible to consider the potential impact of the right at a more specific level. It is hoped that the research will contribute to a national discussion regarding the adequacy of traditional legal and regulatory approaches to environmental protection, and to a broader international discussion concerning the utility of rights-based approaches to environmental protection