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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-22 Daily Xml
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SOUTH AUSTRALIAN PUBLIC HEALTH BILL

Committee Stage

In committee.

Clauses 1 to 4 passed.

New clause 4A.

The Hon. T.A. FRANKS: I move:

Page 10, after line—Insert:

4A—Right to a healthy environment

A person has the right to a clean and healthy environment and the duty to take reasonable steps to protect it for the benefit of the community and future generations.

The amendment was partly covered in my second reading contribution to this bill. I referred to this amendment and outlined why the Greens believe that a right to a healthy environment should be inserted into this bill. I do not propose to repeat much of what I said in my second reading speech, but I would like to add some additional information. I referred in my second reading contribution to the fact that the right to a healthy environment and similar rights are referred to in a number of international treaties that Australia has both signed and ratified.

We also have the UN General Assembly Resolution 64/157 of 8 March 2010 which calls for the 'international realisation of the human right to a healthy environment'. In addition, there are many other international treaties that we are not party to that refer to this right. They include the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988), the African Charter on Human and People's Rights (1981) and the European Convention on Human Rights (1950).

In relation to this European Convention, there is now a growing movement demanding that the right to a healthy environment be given more formal legal status. This includes through codification in the convention. This has already been passed through the European parliament, but it is currently being blocked by the Committee of Ministers of the Council of Europe. One of the main groups advocating for this law reform is called Stand up For Your Rights, an Amsterdam-based NGO that focuses on human rights and environmental issues. If members are interested, they can follow that campaign at www.righttoenvironment.org.

Some of the groups supporting the campaign for the right to a healthy and clean environment to be codified in European Convention on Human Rights include the Dutch section of the International Commission of Jurists (NJCM), the IUCN The Netherlands, Greenpeace International, Friends of the Earth UK, the Club of Rome Erasmus Liga, the Northern Alliance for Sustainability (ANPED) and many others. I also referred in my second reading speech, as members would know, to the fact that even treaties that Australia has signed and ratified are actually of limited value here in South Australia.

The South Australian act that I referred to as undermining the status of these treaties is the Administrative Decisions (Effect of International Instruments) Act 1995. The Greens maintain that this should be repealed. In relation to this specific amendment before us, I can also advise the council that the words are based on the specific words contained in the Timor Leste constitution, a document that was drafted with input from prominent Australian lawyers and funded through AusAID. The clause is very simple, as members will see.

The question is: what does this all actually mean? In a nutshell, the Greens believe that this right will add gravitas and emphasis to a range of principles that are actually already enshrined in this and other state legislation. It gives context to our regime for public health protection, namely, that advancing public health is not just a good idea of itself but that it is also a right that we should have in a wealthy, developed and technologically advanced society such as we have here in South Australia—the right to live in a healthy environment.

The question is: does this right create extra obligations or an extra burden on our government? The answer is that actually it should not, and the reason that it should not is that we are already committed to advancing a healthy environment as an outcome of this legislation before us and many other acts such as the Environment Protection Act. If you take local government as an example, council officers or elected members are making decisions about their local communities already, and they are taking public health considerations into account.

Public health is, in fact, as we know, core business of local government, and decision-makers here are already required to take into account the effect of their decisions on public health. The same applies at the state level where officers at the EPA or the health department are already required to have public health considerations at the forefront of their thinking and decision-making. This amendment puts those considerations into a context. A healthy environment for South Australians is not a state-imposed objective: it is actually the right of its citizens.

Inclusion of this right in legislation may actually have potential benefits for resolving intractable or legacy planning decisions of the past, whether they were made by a local or a state government. Often councils have their hands tied by the legacy of previous bad decisions. A local council decision-maker might be fully aware of a health problem that exists or is likely to arise from past or future development decisions, but they have no real choice in the matter because of the rules around complying development and existing use rights.

These kinds of issues are notoriously difficult to resolve, and often the only people not at the table are, in fact, the ones most directly affected: the local residents, either in their own right or as represented by councils. For example, citizens have no right to be consulted or to engage in pollution-licensing decisions made by the EPA, other than initial licensing, before an activity commences. Not even neighbours need to be consulted on EPA licence renewals. No-one, except a disgruntled applicant, has the right to appeal against these decisions.

The proposed Greens amendment does not change the legal situation, but it does add weight to the importance of public consultation, and should have a positive tendency towards encouraging decision-makers to better engage affected communities at an early stage, even if as a protective measure against future disputes.

The next question that arises is whether this right automatically establishes standing for any person to bring legal action to defend their rights if he or she believes they have been infringed. The answer is that it does not, but the Greens hope that it will allow more people to raise their concerns—including in courts if necessary—than is currently the case under our existing laws. In short, it adds to the reasons that can be presented to a court as to why a person should have a standing. It does not guarantee them a standing.

My colleague, the Hon. Mark Parnell, was heavily involved in the Whyalla Red Dust Action Group case against OneSteel over dust pollution in Whyalla. In that case the residents were reliant upon unwieldy and ultimately unworkable provisions of the EPA to try to resolve the pollution problems they were facing. The biggest legal argument was not whether the elevated dust levels were bad for health but whether or not the local residents had the right to even approach the courts for redress.

The creation of a broad right to a healthy environment in the public health act will provide an acknowledgement that the ultimate beneficiaries, or victims, of government and corporate decision-making are the very citizens on whose behalf we are enacting these laws today. A legislated right to a healthy environment increases the likelihood of citizens being given a standing in court proceedings, but it does not guarantee it.

The final point I will make is to explain the reason for including a simple right in the legislation without detailed supporting legislation showing how that right is to be exercised. The reason is that this amendment is a tentative first step towards recognising a basic human right, and it is not necessary to set out in legislation how that right would operate in practice in every single situation.

When parliament does try to be prescriptive it usually gets it wrong, which is why third-party or civil enforcement regimes that already exist in several acts are rarely, if ever, used. The courts are perfectly capable of balancing rights and responsibilities with practical considerations; they do this every day. I commend this amendment to the committee.

The Hon. G.E. GAGO: The government does not support this amendment. It is of the view that the amendment, although well-meaning, is in fact misplaced and has not been subject to the necessary consultation. The government believes it has addressed the issues of the general public's right to a clean and healthy environment in much more concrete ways throughout the bill, and I will briefly go through some of those.

In the first instance, it is worth remembering that this public health legislation, which is concerned with the health of the public as a whole, is not a vehicle for the articulation of individual rights. Where a statement of a person's rights are referred to—for example, in clause 14—they are within the context of those persons who may be the subject of some form of public health order or direction for control or controlled notifiable conditions in parts 10 and 11 of the bill.

The bill is clear in 4(1)(b) that its aim is to protect individuals and communities from risks to public health and to ensure, so far as is reasonably practicable, a healthy environment for all South Australians, particularly those who live within disadvantaged communities. We believe that the intention of this proposed amendment is already substantially met within the bill. Clause 56 of the bill also contains a general duty for public health. It provides:

(1) A person must take all reasonable steps to prevent or minimise any harm to public health caused by, or likely to be caused by, anything done or omitted to be done by the person.

This general duty is, in many ways, mirrored by a similar general duty in the Environmental Protection Act 1991, amongst others. The difference between what is in the bill and what the Greens are proposing is that the general duty comes with enforceable compliance orders if breaches are identified. So, it is very clear cut and, if it is breached, there are clear consequences.

The general duty has real and practical effects and will be a robust tool in the hands of authorised officers to identify, assess and take action to ensure that public health is protected. A general duty is also a powerful educational tool and will be used to raise people's awareness of their and the community's responsibility to prevent damage to public health. The Local Government Association has expressed concerns about this amendment in terms of its potential to create confusion about how it may influence or interfere with the obligations placed on councils by this legislation. So, the LGA has raised some real concerns.

Whilst I am sure we would support the principle expressed by this amendment, the government is strongly of the view that the bill already caters for this through the general duty, and any insertion along the lines contemplated by this amendment would serve only to confuse matters and therefore we are obviously not going to support it. It should also be noted that we have been committed to broad consultation on this bill and on public health measures generally; it has been lengthy—over a number of years, I am advised.

This amendment has not been the subject of consultation and I have been advised that it did not come up in consultation. So, even though we have been out there over a number of years consulting broadly and extensively with a wide range of different stakeholders, this proposed amendment, I am advised, was not raised, and therefore it is not included in the bill. It has not been included following that consultation, so we believe it should not be supported, particularly given that its specific implications have not been tested or examined.

The Hon. J.M.A. LENSINK: The Liberal Party will not be supporting this amendment. On my layperson’s reading, and not having legal qualifications, I did initially think that it added to the objects of the act, but I am informed by the Greens that it is a greater measure than that and provides for an additional statutory inclusion of a right to a healthy environment. I am grateful for the clarification, particularly the briefing note that was provided to us on this matter.

I stand to be corrected, but I think that similar arguments arise around bills of rights and those sorts of issues, which we on this side of the house are generally not inclined to support. I indicate that I have some sympathy for the intent of it because I see that we have had some difficulty with EPA powers, particularly where there are poor planning decisions, when the EPA should have had a greater input into reducing the potential conflict between industry and local residents.

I think we still have some examples of that in our community, with Adelaide, Brighton and Bradken, and so forth, but I indicate that I think that the inclusion of these additional statutes can lead to a confusing layer of various remedies for people in that situation, and I think that the statutes ought to be clear. If there is a problem with the EP Act, or there is a problem with the planning system, that is the appropriate place for us to be amending the legislation; therefore, we cannot support this particular amendment.

The Hon. M. PARNELL: I am disappointed to hear that neither the government nor the opposition will be supporting the amendment, but I want to respond to a couple of things that have been said. The first thing I would say in relation to the minister's comments about consultation is that I accept that, whilst here in this little corner of the world there may have been some consultation undertaken, the concepts I am talking about have occupied international lawyers and jurists and human rights activists for four decades around the planet.

This concept—the right to a clean and healthy environment—is in constitutional provisions in many countries. In India it has probably been the single most important provision that has allowed for civil society to engage with government to ensure that places like the Taj Mahal were protected, the Ganges was cleaned up and noxious industries were removed from residential areas.

Whilst it is always easy to say, in relation to legislation, that it does not cross every 't' and dot every 'i', that is no reason not to acknowledge that part of the collection of human rights we have as citizens is the right to a healthy environment. It will be difficult for people who do not support this clause when the next Bradken Foundry and the next OneSteel come along to say to residents, 'Well, we aren't really prepared to put anything on the statute books that even suggests that you have rights to engage in the process and, in particular, the right to go and seek redress before the courts.'

One of the things the minister said which, rather than supporting her case for why the amendment should be opposed, in fact, strengthens the Greens' case for why it should be supported, is her reliance on the general environmental duty in clause 56 of the legislation. My question of the minister—and she can choose whether or not to answer it—would be: what if that section is breached, and what if an agency or a company or whatever breaches its general duty; where is the redress mechanism in this bill for affected communities?

We do not have a civil enforcement provision, such as the one that does not work properly in the Environment Protection Act, and there is not a civil enforcement provision such as the one in the Natural Resources Management Act. We do not have a provision in the bill which acknowledges that these laws are on behalf of the community to protect the community and the community have rights to enforce them in a court of competent jurisdiction. I will leave that question hanging; the minister can answer if she chooses.

However, I would say that I do not accept the criticism that, because the right is simply worded, it is somehow an absolute right, which means that anything that is not clean or is not healthy guarantees standing in court and guarantees that the objectors will win a court case. It is not like that. The right is similar to the right of free speech. The right of free speech is not an absolute right. We do not have the right to defame; we do not have the right to vilify on the basis of race. It is a constrained and not an absolute right.

I think that what the government should be doing is thinking about how we as a state are going to give effect to these international treaties we have signed. As a nation, we thump our chest, we pat ourselves on the back and we are often in an unseemly rush to be the first to sign these treaties and, when we do and when parties such as the Greens come into this place and try to put some of these provisions which we have nationally agreed to in legislation, we are told that we cannot do so because we do not really believe in it, and I find that to be most disappointing.

New clause negatived.

Clause 5.

The CHAIR: Hon. Ms Franks, is the amendment to clause 5 consequential?

The Hon. T.A. FRANKS: Yes, that is consequential.

Clause passed.

Progress reported; committee to sit again.

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