Australia is an outlier in the international community in that we have no federal recognition of our human rights.
Unlike many other United Nations member countries, many important human rights are not encoded in our constitution or enshrined in federal legislation and differing approaches and regimes in Australian states and territories mean that there are gaps and inconsistencies for Australians’ human rights protections.
On 30 June, EJA made a submission to the Inquiry into Australia’s Human Rights Framework outlining why the government must follow the Australian Human Rights Commission (AHRC) recommendation to create a Federal Human Rights Act as soon as possible – and why it is essential that the Act protects the right to a safe clean, healthy and sustainable environment, the right to protest, and the cultural and environmental rights of First Nations peoples.
THE RIGHT TO A SAFE, CLEAN, HEALTHY, AND SUSTAINABLE ENVIRONMENT
Australia’s current laws for environmental protection are weak, non-binding and don’t reflect best available science. State and territories don’t recognise the human right to a healthy environment, a right that will need more legal protection the further we find ourselves dealing with the impacts of the climate crisis.
We support the Australian Human Rights Council’s position that other universally recognised human rights cannot be truly protected without first ensuring the right to a safe environment. While some would argue that the right to a safe, clean, healthy, and sustainable environment is covered by other human rights, to protect this right adequately we need clear and unambiguous recognition. Australia voted in the UN General Assembly to recognise the right to a safe environment as a distinct protected category.
Now we must follow through by ensuring our laws reflect this. We need to join more than 80% of our fellow UN member states in federally ratifying this right, in a way that can’t be misconstrued or stripped away.
This right needs to include an obligation for transparency in environmental decision-making that enables Australian communities and individuals to have their say in decisions being made about the environment. These decisions and the information upon which they are based should be made publicly available. The principles created around environmental decision-making in the Aarhus Convention, which Australian courts have already considered, must be ratified as a part of a Federal Human Rights Act. Federal authorities should be obliged to consider the right to a healthy environment when making decisions, and make sure corporations and other actors are doing this as well.
If the right to a healthy environment is breached, there must be frameworks in place that enable this human right to be enforced in court.
CULTURAL AND ENVIRONMENTAL RIGHTS FOR ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES
A Federal Human Rights Act must recognise First Nation rights to the protection of Country, as well as rights to care for and connect to the land and to continue cultural practices that are intimately tied to the health of Country, including waters and seas.
Our federal law needs to recognise the unique relationship of First Peoples to the environment. This is already a legally recognised category of rights in Queensland, where Indigenous groups have successfully argued for protection of cultural rights in court.
Denial of these rights is antithetical to self-determination and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which recognises the need for First Nations peoples to have agency over traditional lands and natural resources. Read EJA’s submission on applying UNDRIP in Australia.
The UNDRIP should be enshrined in federal law in Australia as an absolute minimum – and the government must partner with First Nations advocates throughout the development of a Federal Human Rights Act.
THE RIGHT TO PROTEST IN DEFENCE OF THE ENVIRONMENT
Democracies fundamentally rely on the right to advocate, protest, and organise for change. As a nation we are obliged under the UN Declaration on Human Rights, to protect the democratic right of peaceful protest, but we don’t have laws that reflect this.
Unlike other countries, Australia doesn’t have a federally recognised ‘freedom of speech’ or similar human right enshrined in our constitution. This has enabled States and territories to create harsh anti-protest laws to crush community action.
In recent years, we’ve seen anti-protest legislation rushed through parliaments in Victoria, Tasmania, Western Australia, New South Wales and South Australia, overwhelmingly targeted at protesters aiming to protect the environment. In Tasmania, one of these laws was found to be unconstitutional and struck down by the High Court as it was such a blatant infringement on human rights.
Criminalising peaceful protest is a tactic that’s only made available because of the lack of a Federal Human Rights Act, and we can prevent this by codifying protest rights in our federal law. The Australian Human Rights commission calls for Australia to recognise the right to peaceful assembly, freedom of expression, freedom of movement and freedom of association.
Codifying these rights isn’t a radical or progressive idea – these are basic, universally recognised human rights which are already federally protected by many of our international peers.
What next?
EJA has submitted these views to Parliament for consideration, and there will be a report on this inquiry by March 2024. While submissions for the inquiry have closed, there are three public hearings open to the community in the next three months – August 15th in Brisbane, August 25th in Melbourne, and September 27th in Sydney.
Australia needs to create a Federal Human Rights Act that not only recognises human rights related to the environment but protects them under law.
Read EJA’s submission to the Inquiry into Australia’s Human Rights Framework below.
