The environment is the resource base for all life and is the basis on which many of our fundamental rights depend (EDO NSW and EDO Victoria, 2009), as humans we have the right to live in a clean and healthy environment, with clean water and unpolluted air. We have the right to preserve the environment for aesthetic, non utilitarian reasons and safeguard it for future generations. Globally, environmental protection is equally important for everyone, as human life cannot be sustained in a degraded environment. As the environment significantly affects each and everyone of us, its preservation warrants vital protection at a high political level.
Environmental awareness is becoming more prominent both inside and outside the courts. Globally, the legal protection of environmental rights is often found in a Environmental Charter or in some cases the constitution. A charter is a formal declaration of environment values which affords a degree of legal recognition and protection beyond that of normal legislation (Fisher, 2003). In Australia we do not have a charter for the environment nor is environmental protection written into our constitution.
In this essay I will look at the role of the courts in protecting environmental rights and discuss the shift of balance between the courts and parliament if an Environmental Charter is introduced into the Australian legal system. I will further argue what role I believe the court should take in the protection of environment rights.
Environmental Rights in Australia
In Australia we have a system of a representative democracy, regulated by the Commonwealth Constitution, in which political decisions are made by persons chosen to represent (Preston, 2006). The government is divided into three arms, the legislative, who makes the law; the executive, who administrate the law and the judiciary, who interpret and apply the law.
Australian environmental rights are spread across a range of legislation in both state and territorial law along with some at the federal level. These have developed fragmented and ad hoc in response to perceived problems that have arisen (Fisher, 2003). Australian environmental management is now guided by the principles of environmental policy set out in the Intergovernmental Agreement for the Environment 1992 and the National Strategy for Ecological Sustainable Development 1992. These principles are accepted by all levels of government and represent the strategic foundations of environmental law (Fisher, 2003).
The Role of Courts
The role of the courts in protecting environmental rights is limited. Once a law is made in parliament the courts role is to apply and interpret the law. The courts can only apply the law to the facts put before them and they can only reach their decisions based on facts that have already been established. The courts cannot overrule parliament unless parliament has acted beyond their powers.
The courts have a broad range of powers to deal with environmental matters including injunctions, declarations, fines or imprisonment or remediation orders. The courts can restrain projects that have not adequately been planned and assessed by insisting they not go forward until they can demonstrate they have considered and adequately resolved all matters affecting the environment (Preston, 2006).
Judges play a pivotal role in improving environmental protection, decisions made by judges create legal precedents thereby building a form of common law for the environment (Preston, 2006). Preston further argues that the courts have been more effective in developing a body of procedural law than substantive environmental law. The outcomes from such litigation further promotes environmental rights as it act as a deterrent for others.
It is the judiciary’s role to interpret the law and where in doubt the courts may look to words of statutes or to public policy to imply a requirement of environmental sustainability (Robinson, 1997). Creative interpretation of the law by the courts can help protect environmental rights and shape laws towards the principles of sustainability. In this sense, court decisions can shape laws in the legal protection in environmental rights.
The courts have a role in fashioning and upholding the structures of accountability and rationality that govern the exercise of public power (Preston, 2006). It is a fundamental principle of administrative law that the courts must not get involved in determining the merits of a decision. The courts do however have the power to review the process by which the decision was made through a judicial review. The court can scrutinise the circumstances of the decision and bring it forward into the public domain (REF).
As information becomes easier to access so has the growth of public interest to matters concerning the environment. The availability of the courts means that access to the government is possible for ordinary citizens. Anyone can take a case of environmental litigation to court providing they satisfy the requirements of legal standing. That is, that they have a special interest in the area in question, over and above that of general public interest (REF).
The costs of legal proceedings may pose as barrier for people to reach the courts. Carnworth argues, litigation through the courts is prohibitively expensive for most people unless they are either poor enough to qualify for legal aid or rich enough to be able to undertake an open ended commitment to expenditure running into tens or hundreds of thousands of dollars.
As discussed earlier, to further protect environmental rights and increase the power of the courts an Environmental Charter maybe introduced. An Environmental Charter is an ordinary statute that affects the way laws are interpreted and applied, it does not override other laws. The aim of a charter is to provide a dialog between the three arms of government for the promotion and protection of the environment and ensure the environment is considered when developing and interpreting law. A charter would set a minimum standard that the people can expect when dealing with environmental matters (REF).
Many countries around the world already provide some protection of environmental rights within their charters. Australia is one of the only western democratic countries without any kind of environmental charter.
A new role for the Courts
An Environmental Charter will require courts to think and act in different ways. In our current political system the parliament decides the balance between rights and interest. If introduced, the courts have the jurisdiction to preserve and enforce charter rights and play a more prominent role influencing parliamentary laws, ensuring that these align with the charter.
The courts can identify short comings in the law and call for law reform (Preston, 2006). The courts cannot strike down a law only parliament can do this. If a law is inconsistent with the charter the courts will issue a Declaration of Incompatibility, which requires the minister responsible for the law to prepare a written response (REF). Declarations are not binding, the parliament still remains supreme and has the last word.
It is possible that when interpreting an Act with the Charter, the fine line between applying the law and creating new policy is blurred by the courts. Decisions may have policy implications especially those concerning matters of high environmental significance. As the courts are accountable to nobody and judges are not elected it can be argued that decisions are unlikely to be representative of the people. In a speech presented by John Howard the former Prime Minister of Australia he argued in a bill of rights reduces the rights of citizens to determine matters over which they should continue to exercise control. It does this by transferring decision making authority to unelected judges, accountable to no one except in the barest theoretical sense.
A charter provides an obligation of public authorities to act compatibility with environmental rights. It would require the minister to publish a statement on the compatibility of bills they are piloting through parliament therefore the onus is on the ministers to make sure their legislation compatible (REF). This allows the courts to make certain the executive can explain and justify reasons for their activities.
Activities of the state become more transparent, as decision making activities would now be made in the public arena of the courts rather than politicians making them behind closed doors. The courts can ensure that the executive is accountable to the people by opening executive decision making to public scrutiny (Preston, 2006).
The introduction of a charter would not be trouble free. New rules, practises, directions, procedures must be established for handling cases. Judges must also develop their existing roles to take on new responsibilities and familiarise themselves with the breadth and depth of environmental issues.
The Balance of Power
An Environmental Charter would permit the courts more power in our legal system, enabling the courts to question parliamentary laws, but how will this balance of power translate into the protection of environmental rights?
Firstly, it can be argued that an Environmental Charter would not make any difference to the protection of environmental rights. Environmental rights are already recognised in our legal system. An Environmental Charter is not required to bring matters of the environment to the courts as a function of common law already allows this. Furthermore, the incorporation of a charter does not mean it is enforceable through the judicial system (Fisher, 2003). Parliament sovereignty provides that a government retains the power to pass a law inconsistent with any law it has passed before, if a newly elected government wanted to breach environmental rights it can.
Secondly, the shifted balance between the arms of government may even hinder the protection of environmental rights. There maybe sensitive issues such as the environment, cultural, economic and political factors which exercise scientific uncertainty or policy implications that may not be appropriate for judicial determination. In these instances the parliament is far better equipped to balance these kinds of matters and exercise its discretion as the voice of the people.
Thirdly, the transfer of balance to courts will better protect environmental rights and further regulate government. Unelected judges can take the role of keeping the politicians honest. The courts ensure openness, reduce arbitrariness, irrationality and lack of proportionality in executive decision making (Preston, 2006). Carnwoth also argues national judges are one of the most stable and informed sections of their societies. Governments come and go but judicial traditions have proved surprisingly resilient.
A charter requires governments, parliaments, courts and public authorities to place environmental rights on their agendas, thereby holding them to international standards. It can be argued that this will raise the level of understanding and the quality of administration decision making.
Even with a shift of responsibility of the courts, if the law is wrong that is still a matter for Parliament to decide not the judges. Judges can only do what they can within their power, interpret the law. Responsibility is then transferred to a political authority where they are better equipped to make policy decisions.
By shifting more power to the courts there is a greater opportunity for public involvement on decision making. The courts can assemble community values and actively promote and protect environmental rights against the state unless Parliament undertakes to override those rights (REF.)
A charter would encourages the courts to consider international law and judgements of domestic and foreign courts. The courts can mould law into policy through creative interpretation therefore better protecting environmental rights.
Increasingly parliaments tend to enact laws in general terms often including safe concepts which meet with political approval, assigning the issue to the Courts to avoid the political or electoral repercussions of a decision. (EDO, Law, Standing and the Environment 2002). If politicians don’t accept decisions that are properly theirs, then why are they given the responsibility in the first place.
Conclusions and RECOMENDATIONS
There is no questions that more needs to be done raising the profile of environmental rights. The introduction of an environmental charter will align Australia globally with international standards and further increase environmental rights in our current system. The court already is legitimately creative in interpreting the constitution to meet the needs of the environment, a further push from the courts will strengthen the expectation that governments must deliver on the environment. Or as Sax, in Preston, 2006 claims, courts alone cannot and will not do the job that is needed. But courts can help to open the doors to a far more limber government process.
Judicial capability in environment and sustainable development matters should be strengthened. Courts should have within their power to apply judgement calls on sustainability principles such as the precautionary principle and in cases of scientific uncertainty to protect environmental rights.
The court system exists to provide justice for all citizens. We should move away from an administrative system of regulation to an open participatory approach. Courts should play an increasingly role in determining particular environmental questions, public litigation increased and more openness adopted in the community. The public require improved access to the courts to participate in decisions affecting the environment, slacking legal standing requirements and costs should be abolished where matters are of public interest litigation.
A new ethic of governance and responsibility is required in our administrative system if environmental rights are to be better protected. Parliaments should continue to develop appropriate policy, carefully detailing environmental duties and responsibilities and continue to allocate and manage resources. Governments must become more transparent and divulged more information to the public. The role of the court is to ensure that political branches of government act according to the law (Preston, 2006) and environmental rights are considered consistently.
There are no environmental rights nor any powers with respect to the environment within Australia’s constitutional structures (Fisher, 2003). Under rules of international law, the Commonwealth is responsible, for the quality of the Australian environment (Fisher, 2003). The parliament is limited by the powers given to it under the constitution and has no specific power to make laws relating to environmental matters. It can however use other constitutional powers such as external affairs to pass laws relating to environmental matters.
- Carnwath, (2004). Judicial Protection of the Environment: At Home and Abroad, Journal of Environmental Law 16(3):315 327.
- Howard, J. (Speaker). (2009). Proposed Charter of Rights, Perth, Australia: University of Western Australia
- EDO NSW (Environment Defenders Office NSW), EDO Victoria (Environment Defenders Office Victoria). (2009). Discussion Paper on Protection of Human Rights and Environmental Rights in Australia
- Robinson, N. (1997). Regional Symposium on the role of Judiciary in promoting the rule of sustainable development, pg 3
- Fisher, D. E. (2003). Australian Environmental Law Sydney, Lawbook Co.
- Preston, B.J. (2006). The Role of Public Interest Environment Litigation. Environmental and Planning Law Journal, 23: 337 350