Nature and a Human Rights Document
BY STEPHEN KEIM S.C.
The committee headed by Father Frank Brennan SJ will, no doubt, receive many submissions as to what rights are sufficiently important to be reflected in and protected by an Australian Human Rights Act.
But it is unlikely that protection of the mountains, rivers and trees will be reflected in a human rights document emerging from the committee’s processes.
Nonetheless, the ability of people to stand up for the environment by bringing legal action has been an important rights issue over recent decades.
In 1979, the Australian Conservation Foundation (ACF) brought an action claiming the government had failed to follow legally required rules in approving the Iwasaki Resort since built on the Queensland coast, north of Rockhampton.
The High Court refused ACF the right to argue the case, but restated the law with regard to bringing actions where no personal interest is at stake. It ruled that a special interest was required to bring actions in the public interest, but left vague the question of how one could establish that special interest.
Over the ensuing three decades, community urgency about preserving even remnants of the environmental values on which our society depends has led to many groups being found to have the necessary special interest the High Court spoke of in the ACF case.
Legislation has increasingly made statutory provision for those concerned with the environment to have the right to sue to enforce environmental duties created by the legislation. The Commonwealth’s major environmental statute passed in 1999 provides for activists, researchers and conservation organisations to have those rights. More opportunity is in fact being provided to allow members of the community to ‘speak for the trees’.
The prospect of disastrous climate change, however, indicates a very close involvement between human rights and environmental change in future years. Climate change is already driving people from their homes. In future years, there will be millions of stateless people whose homes and livelihoods have been destroyed by climate change.
The big human rights challenge for the industrial countries will be whether they provide homes and a haven for those people. It is the industrial countries whose emissions over the last 200 years have caused climate change. What will we do to protect those people whose homes our actions have destroyed’
The prospect of a Human Rights Act is very important. The content and form of that legislation will involve some very important decision making.
However, the Human Rights Act for Australia will not be the last important human rights decision in which we are involved.
Stephen Keim has acted in environmental law cases for over 20 years. More recently, as barrister for Dr. Mohamed Haneef, he has earned the ire of the former prime minister, the former attorney-general and the current Commissioner of the Australian Federal Police.
