Why are the Victorian Greens proposing a ‘right to a safe climate’?
- Victorians are already feeling the impacts of climate change – from bushfires to floods and heatwaves, extreme weather and storms.
- In 2022, a group of young people led by the courageous Anjali Sharma brought a case against the Environment Minister – to try and determine whether the government has a duty to consider climate impacts when making decisions like approving coal mines. Unfortunately that case was rejected (in Sharma v Environment Minister the court found that responsibility for developing a ‘climate duty of care’ sits with politicians, not the judiciary).
- Since then, Anjali Sharma has been pushing for the Federal Government to legislation a climate duty of care, with a private members Bill from Senator David Pocock.
- But while the Federal Labor Government has thus far rebuffed Senator David Pocock’s private member’s bill for a duty of care, there’s plenty that state governments can and should do to protect future generations from the worst impacts of climate change.
- The Victorian Greens believe that one simple, important reform would be to amend Victoria’s existing Charter of Human Rights and Responsibilities Act 2006 to ensure that everyone has the right to a safe climate.
- This would mean a new right that Victorians could deploy and rely on in climate litigation – while simultaneously meaning a new criterion the state government, public authorities, and courts in Victoria would need to interpret and abide by when performing their roles.
What is Victoria’s Charter of Human Rights and Responsibilities?
- Per the Victorian Equal Opportunity and Human Rights Commission’s comprehensive guide:
- “The Charter enshrines civil, political and cultural rights into Victorian law. Public authorities must observe those rights. New policies and legislation must also take into account human rights, and public authorities – for example, people working for the government – must also observe human rights so that members of the community are not treated unfairly.”
- Victoria already has 27 existing rights, including the ‘right to life’, ‘freedom of thought, conscience, religion and belief’, and ‘freedom of expression’ – so we know Labor can do it.
- The Charter protects human rights in Victoria in three ways:
- 1. Public authorities, including local government and Victoria Police, must act in ways that are compatible with human rights and take relevant human rights into account when making decisions.
- 2. Human rights must be taken into account when Parliament makes new laws.
- 3. Courts and tribunals must interpret and apply all laws compatibly with human rights.
- There are however limits and mitigation from existing laws (more on this below).
What are other governments doing?
- Governments across the world have already legislated equivalent rights, for example South Korea, the Philippines, Colombia – even the US state of Montana!
- As flagged, the Federal Labor Government has thus far rejected Pocock’s ‘Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023’
- The Bill would require that, when making decisions related to fossil fuel projects, the government must consider the climate-impact of decisions on the health and wellbeing of current and future children; and prevent decisions approving the exploration or extraction of coal, oil or gas,that pose a material risk to their health and wellbeing.
- The Labor-led senate inquiry into the bill rejected this – citing Labor’s laughably weak Safeguard Mechanism as proof of climate action – while Pocock and the Greens delivered dissenting reports
- During development of our bill, the ACT has actually announced their own, slightly different right: ‘The Human Rights (Healthy Environment) Amendment Bill 2023’
How would a new ‘right to a safe climate’ actually operate?
- A new right would mean that when making decisions and putting forward legislation - the state government would have to consider whether it makes climate change worse, particularly for young and future generations.
- This obligation would be particularly significant when government or public authorities are making decisions or discharging their functions in respect of, for example, fossil fuel projects.
- For example, while the Government would still have the power to approve the brown-coal-to-hydrogen HESC project, any ministers and bureaucrats involved in decision-making in respect of that project would have to consider (and justify) how such a decision to approve it would be consistent with a right to a safe climate.
- A legislated right under the Charter would also mean a new tool for members of the public seeking to hold governments and public authorities to account in respect of their decision-making. This is because not only is the new proposed right one that could be relied on in litigation to enforce a person’s rights, in addition, courts and tribunals must interpret all Victorian laws in a way that upholds the human rights that are outlined in the Charter (as far as this is possible).
- Further to the above example, any legal action against the HESC’s approval could rely on the right to a safe climate (more on legal action below).
- This is only one part of a responsible approach to climate change – the Greens also want an outright ban on all new fossil fuel projects, and have already introduced bills to ban new coal projects and, separately, offshore oil and gas exploration, mining and infrastructure projects.
How exactly is our right worded and why?
- 18A Right to a safe climate
- (1) Every person has the right to a safe climate, having regard to the risks to life, health and property arising due to climate change.
- This is the core right definition and importantly incorporates Sharma's consideration of the risk of economic loss and property damage from climate change, as well as personal injury and death.
- (2) Without limiting subsection (1), the right to a safe climate includes protection from the risks of climate change through actions which are reasonable in all the circumstances.
- This explains how the right can be interpreted in regards to Government and public agency action
- (3) For the purposes of subsection (2), without limiting what actions are reasonable, in determining whether actions are reasonable, consideration may be given to—
- (a) the potential contribution to greenhouse gas emissions of a decision or activity; and
- (b) any relevant State or Commonwealth emissions reduction targets; and
- (c) the magnitude of loss and damage as a consequence of climate change; and
- This is a non-exclusive guide to what that Government or public agency action can be judged against as reasonable – emissions, targets, unavoidable loss and damage, and mitigation and adaptation costs – and is intended to signal that this is a right that is to be broadly construed.
- (4) In this section, climate change has the same meaning as in the Climate Change Act 2017.
- This is the existing legal definition we are attaching out right.
- (1) Every person has the right to a safe climate, having regard to the risks to life, health and property arising due to climate change.
What specific obligations would this right impose?
- We can tell what impact a right to a safe climate would have by examining the Charter’s obligations on Parliament, courts and tribunals, and public authorities:
- Charter obligations on Parliament
- When introducing new laws into Victoria’s Parliament, a Statement of Compatibility must be tabled in Parliament, indicating how the proposed law is compatible or incompatible with the rights set out in the Charter.
- The Scrutiny of Acts and Regulations Committee reviews Bills and statutory rules and reports to Parliament as to whether they are compatible with human rights.
- In exceptional circumstances, Parliament may declare a law as being incompatible with one or more of the rights in the Charter but still pass the law.
- Charter obligations on courts and tribunals
- Courts and tribunals must interpret all Victorian laws in a way that upholds the human rights outlined in the Charter, as far as this is possible.
- The Supreme Court has the power to declare that a law or provision is inconsistent with human rights but does not have the power to strike it down.
- Charter obligations on public authorities
- Public authorities must act compatibly with human rights and give proper consideration to human rights when making decisions.
Would a right to safe climate unfairly constrain the government?
- While the Greens have designed a potent new right, the Charter is designed to curb, not control the government of the day, and provides an explicit exception:
- Under section 7(2) of the Charter, rights may be limited in certain circumstances, but it must be reasonable, necessary, justified and proportionate.
- For example, while Victorians have a ‘Right to freedom of movement’ under s12 of the Charter, police still have powers to arrest and detain people.
- For another counterexample to this right, Labor was able to forcibly lockdown public housing residents during the worst of the COVID-19 pandemic.
- Residents, human rights groups, and the Greens strongly disagreed with this approach
- Labor subsequently settled the subsequent class action lawsuit for $5 million – theoretically, if the residents had gone further in the action they would have been able to cite this right in the search for compensation.
Will this Bill pass?
- Unfortunately the Labor State Government has so far refused to pass Greens Bills banning new coal projects, or banning new offshore gas and oil drilling.
- However, we hope that the community will put enough pressure on Labor in Victoria to support this simple Bill - which enshrines the right to a safe climate in our law. Surely, the rights of all Victorians, and young and future generations, to live in a safe and healthy climate is a fundamental human right that should be supported.