Greening the proposed Australian Capital Territory Bill of Rights

Abstract

Overview: As a matter of principle, ACEL-ANU strongly supports the establishment of an entrenched Bill of Rights1 that establishes enforceable civil, political, economic, social and cultural rights within the ACT as outlined within the Committee's terms of reference. Some of the most compelling and cogent reasons and persuasive arguments for taking such action in the face of reasoned resistance can be found in influential texts by Philip Alston, Hilary Charlesworth, Bede Harris, and George Williams - amongst others - and will not be rehearsed in any detail in this submission. Suffice that it to say here that the ideas of individual liberty and human rights have been the grand innovation of the state under the rule of law, at first as moral imperatives and later through establishment by law. As experience has made plain, however, "without a political guarantee of legal recourse, there are no individual rights but only pious profession of the value of human beings". Accordingly, it is only by recognising rights as elements of law - through protection, for example, by a Bill of Rights - that those rights serve as an effective limit on power under the rule of law. By establishing a Bill of Rights a society protects its members against in at least two ways. First, it protects against despotism -- government acting against the will of its constituents. Second, and much more importantly, it protects against "acts in which the Government is the mere instrument of the major number of the constituents." This protection against the tyranny of the majority is the very thing that detractors of rights use most frequently to claim that rights are undemocratic and also undermine notions of parliamentary sovereignty. Such a claim is, if not demonstrably no as a general proposition, particularly specious under the present circumstances of this Inquiry – an Inquiry in which the people can help choose its own destiny and decide on what rights, if any, should be given legal status to serve as a protective agent in the community. This brings us to the crux of the matter. The remainder of this submission concentrates on an item that goes unmentioned in the terms of reference -- whether a right to a safe, clean and healthy environment ought to be protected by an ACT Bill of Rights. The Australian Centre for Environmental Law submits that such a right is vital in the contemporary world. In a democratic country such as Australia, environmental pollution may be one of the most significant threats to the realisation of basic human rights. Government action and inaction in the field of environment implicates core international human rights, including the right to life, the right to security of the person, and more controversially, a general right to a safe environment. A cursory survey of environmental statistics in Australia indicates that too often Australia is failing to provide adequate environmental protection necessary to ensure that rights to human life, health and safety do not suffer. As an example, some Australian studies have found a relationship between the levels of pollutants in the outdoor air and increased death rates, attendances at hospital emergency departments or hospital admissions. Thus, there is a clear need to include the environment in the ACT Bill of Rights, if for no other reason than to make certain that other core rights, such as the right to life, are effectively implemented. For the purpose of this submission, the broad area of environmental human rights can be broken down into five components: environmental aspects of the rights to life and security of the person, the free-standing right to a healthy environment, the right to a nondiscriminatory allocation of environmental burdens and benefits, indigenous environmental rights, and the right to environmental information, public participation and access to justice.