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Implementing the Human Right to Water in Australia
MEG GOOD[*]
In July 2010, the United Nations General Assembly passed a non-binding resolution declaring that access to clean water and adequate sanitation is a human right.[1] Although 41 countries abstained from the vote (including Australia), 122 members voted in favour of recognising the fundamental importance of the right to water ‘as a human right that is essential for the full enjoyment of life and all human rights’.[2] The resolution was passed in recognition of the fact that, at present, ‘approximately 884 million people lack access to safe drinking water’.[3] Reinforcing this significant development, in September 2010 the United Nations Human Rights Council (‘UNHRC’) adopted a resolution confirming that the human right to safe drinking water is ‘derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity’.[4]
The United Nations independent expert appointed to report on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, has explained the significance of this resolution for the status of the right.[5] She notes that the UNHRC’s resolution means that the human right to water is legally binding as it is already contained within existing human rights treaties.[6]
The international recognition of the legally binding nature of the human right to water places pressure on nation states to ensure that the right is adequately protected, respected and fulfilled at the national level.[7] The UNHRC’s resolution explicitly calls upon states to ‘develop appropriate tools and mechanisms, which may encompass legislation...to achieve progressively the full realization of human rights obligations related to access to safe drinking water and sanitation’.[8] Accordingly, as a member of the United Nations and a party to the relevant human rights instruments referred to in the resolution, Australia has an obligation to ensure adequate implementation of the right on the domestic level.
This article explores the rationale and means of implementing the human right to water in Australia. The status, scope and content of the right at international law are outlined in order to determine how it might be implemented on the domestic level. Whilst most of the literature pertaining to the human right to water concentrates on the ability of humans to access and use clean water, the paper adopts an environmental focus by evaluating the usefulness of human rights approaches for environmental protection. It is argued that there are numerous benefits provided by human rights approaches, including the focus they place on the principle of intergenerational equity.
Specifically, in regards to the human right to water, the paper argues that the principle of intergenerational equity is incorporated within the right, requiring consideration of the water needs of both present and future generations. In recognition of this requirement to cater for the needs of future generations, it is further argued that the human right to water implicitly incorporates the human right to a clean and healthy environment.
The paper concludes that the most effective means of implementing the right in Australia is through the introduction of a federal Human Rights Act recognising the human right to water and the human right to a healthy environment. In the alternative, it is proposed that a ‘Human Right to Water Act’ should be introduced at the Commonwealth and state levels. Possible impacts resulting from implementation of the right are considered, including implications for the commodification and trading of water, the possible use of the right as a cause of action and impacts on the interpretation of legislation and environmental policy in Australia.
Prior to the passing of the UNHRC resolution in 2010, the human right to water was a right of uncertain status at international law. The right is not included in the Universal Declaration of Human Rights[9] and is only referred to in a small number of binding international legal agreements.[10] The right has traditionally been characterised as a derivative right, implicit within other human rights, such as the right to life, the right to food and the right to health.[11] As a consequence, Erik Bluemel argues that there has been a ‘fragmented recognition of the right to water’.[12] Amanda Cahill argues that this fragmented recognition has resulted in the right to water possessing a ‘unique status’ somewhere in-between a derivative and independent right.[13]
It is now clear as a consequence of the UNHRC’s resolution that the human right to water is a legally binding derivative right implicit within numerous human rights guaranteed under international human rights instruments.[14] It is necessary to examine these sources of the human right to water at international law in order to determine the scope and content of the right.
The UDHR contains a number of human rights which have been interpreted to incorporate the human right to water. Although the UDHR is not legally binding, many of the rights recognised under the Declaration have reached customary international law status.[16]
The two relevant human rights included in the UDHR which have been interpreted to incorporate the right to water are Articles 3 (right to life) and 25 (right to health):
Article 3
Everyone has the right to life, liberty and security of person.
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
It is clear that the human right to life expressed in Article 3 can not be realised without access to sufficient clean water as human existence is not possible without water.[17] Similarly, the human right to health provided in Article 25 also implicitly requires a right to clean water, as it is impossible to achieve a ‘standard of living’ adequate for health without sufficient water. Implication of the human right to water in Article 25 can be justified on the grounds that it uses the word ‘including’ which presumably indicates an inclusive rather than exclusive definition of the rights required in pursuance of the right to health.[18]
The human right to water has also been interpreted to be implicitly included within a number of human rights provided for under the ICESCR:[20]
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed...
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
In 2002, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) explained that the human right to water ‘clearly falls within the category of guarantees essential for securing an adequate standard of living’ under Article 11 of the ICESCR.[21] The CESCR also clarified that the human right to water is ‘inextricably related to the right to the highest attainable standard of health’ under Article 12 and the rights to adequate housing and adequate food under Article 11.[22] Whilst the interpretations of the CESCR are not binding, they are designed to assist states by providing ‘greater interpretative clarity as to the intent, meaning and content’ of the ICESCR.[23] The CESCR’s interpretation of the ICESCR was subsequently endorsed by the UNHRC through the adoption of a legally binding resolution recognising the fundamental necessity of the human right to water to the realisation of the rights to an adequate standard of living, health, life and human dignity.[24]
Another possible source of the human right to water is as an independent right arising under customary international law.[25] Although opinion differs regarding how to determine when a ‘norm has reached the threshold to be considered as custom’, it is generally accepted that ‘usage’ and opinio juris must be established.[26] Whilst state recognition of the human right to water is increasing, it is arguable whether the human right to water has reached customary international law status due to the lack of widespread recognition of the right as an independent right.
The International Union for the Conservation of Nature (IUCN) has identified fifty nations with constitutional provisions recognising (in various forms) the human right to a healthy and clean environment, which involves an implicit recognition of the human right to water.[27] However, only a few countries expressly recognise the human right to water in their national constitutions, such as South Africa.[28] In India, although the Constitution of India (1950) does not expressly recognise the human right to water, the Supreme Court has implied a right to water through the interpretation of the right to life which is guaranteed under the Constitution.[29] In Europe at present, Belgium is giving serious consideration to recognising the right to water as a constitutional right at the federal level which, as Chiara Armeni notes, would make Belgium the first European Union country to expressly include the right to water in its Constitution.[30] However other European countries such as Italy do not seem set to recognise the human right to water on the domestic level in the near future.[31]
Despite the limited explicit recognition of the human right to water in the domestic law of many nation states, a significant body of case law is developing around the world involving the application of the human right to water.[32] Rebecca Bates has made a convincing argument for the right to water as ‘a principle of customary international law as a result of its repeated direct and indirect recognition in international agreements and the practices of States’.[33]
Even if the human right to water has not yet reached customary international law status, it is foreseeable that given the increasing recognition of the right at both the national and international levels the right may reach this status in the near future. The significance of the right reaching customary international law status lies in the fact that the right would then become legally binding upon states which have not formally recognised the right.[34]
As noted by Cahill, there is no ‘indisputable legal definition’ addressing the essential scope and content of the international human right to water.[35] However, the CESCR has provided an outline of the ‘normative content’ of the right in its comment on the human right to water (General Comment 15).[36] In General Comment 15, the CESCR explains that the ‘right to water contains both freedoms and entitlements’:
The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies. By contrast, the entitlements include the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water.[37]
As a minimum requirement, the right requires that every person has access ‘to sufficient, safe, acceptable, physically accessible and affordable water, for personal and domestic uses’.[38] The General Comment does not provide definitions of the terms ‘sufficient’, ‘safe’ or ‘acceptable’. However, given the fact that the human right to water is a derivative right of the right to life, the focus of the right is upon an adequate quantity and quality of water to sustain human life. Importantly, the General Comment explains that water ‘should be treated as a social and cultural good’ rather than primarily as an ‘economic good’.[39] This inclusion is significant given the increasing global trend towards the commodification of water through privatisation of water supply services and the introduction of water trading in countries such as Australia. Another important qualification included in the General Comment concerns recognition of the importance of maintaining intergenerational equity. The Comment states that the ‘manner of the realization of the right’ must be sustainable in order to ensure that the ‘right can be realized for present and future generations’.[40]
However, it is clear that the CESCR did not intend to provide a comprehensive or definitive explanation of the content of the right. As noted by Douglas Fisher, the mere recognition of the ‘existence’ of a right does not answer critical questions such as what is the ‘best use of the resource’, the purposes water may be used for, how ‘different uses are to be prioritised’ and how the ‘water resource and its environment can be protected from degradation’.[41] General Comment 15 does not provide adequate guidance for states in relation to these significant issues.
Presumably this is due to the fact that these issues involve contentious matters relating to national resource use and environmental planning priorities. The General Comment does however outline the obligations expected of states regarding the realisation of the right on the domestic level. There are three main obligations imposed by the human right to water (as with any human right) – the obligations to protect, respect and fulfil the right:
(a) Obligations to respect
21. The obligation to respect requires that States parties refrain from interfering directly or indirectly with the enjoyment of the right to water.
(b) Obligations to protect
23. The obligation to protect requires States parties to prevent third parties from interfering in any way with the enjoyment of the right to water.
(c) Obligations to fulfil
26. The obligation to fulfil requires States parties to adopt the necessary measures directed towards the full realization of the right to water. The obligation includes, inter alia, according sufficient recognition of this right within the national political and legal systems, preferably by way of legislative implementation. [42]
These obligations aim to prevent states and third parties from interfering with the enjoyment of the right to water by human beings. However, Scanlon, Cassar and Nemes argue that the human right to water ‘does not only refer to the rights of people but also to the needs of the environment’.[43] This argument finds support in the General Comment itself which explicitly states that parties should ‘adopt comprehensive and integrated strategies and programmes to ensure that there is sufficient and safe water for present and future generations’ (emphasis added).[44] This reference to the needs of future generations means that observance of the human right to water requires consideration of both the rights of present generations to safe, clean, accessible and affordable drinking water and the need to maintain the ecological integrity of water supplies in order to ensure that the rights of future generations can be fulfilled.
Therefore, although the right is a ‘human’ right, it necessarily involves consideration of environmental needs in order to sustain a balance between meeting the needs of present generations without jeopardising the needs of future generations. This conclusion is supported by the fact that one of the sources of the right to water at international law is the ‘right to life’. The right to life is a right possessed by human beings, both at present and in the future.
In consideration of the right to life and other human rights contained within the ICESCR, in 1997 the United Nations Educational, Scientific and Cultural Organization stated in the non-binding Declaration on the Responsibilities of the Present Generations Towards Future Generations that ‘present generations should preserve for future generations natural resources necessary for sustaining human life and for its development’.[45] This notion of intergenerational equity is therefore a fundamental aspect of the right to water, which as Helen Greatrex notes, suggests that the right to water encompasses a right of future generations to have ‘current water resources carefully managed.’[46]
It must also be noted that the substantive right to water is accompanied by ‘procedural rights’. Although General Comment 15 is generally directed to ‘substantive’ issues, it does explain that the right to water grants water users the procedural right to ‘participate in decision-making processes that may affect their exercise of the right to water’.[47] Additionally, it states that ‘[i]ndividuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties’.[48] Scanlon, Cassar and Nemes argue that the ‘core procedural rights that should accompany a human right to water’ also include ‘the right of individuals to recourse for environmental harm suffered’ and ‘the right of individuals to fair and just administrative action’.[49] Whilst these statements in the General Comment and more general expressions of procedural human rights in international instruments are a useful starting point, an official comprehensive guide explaining the full range of procedural rights associated with the right to water is required.[50]
Over the past few decades, international environmental law has begun to explore the possible utility of human rights approaches for environmental protection.[51] In an age of current and projected water scarcity it is vital for international environmental law to explore all possible options for addressing the problem of water scarcity. As noted by Michael Anderson, human rights approaches to environmental protection can be viewed from either an anthropocentric or an ecocentric perspective.[52] From the anthropocentric perspective, ‘environmental protection may be cast as a means to the end of fulfilling human rights standards’.[53] In the context of the problem of water scarcity, from this perspective the sustainable use and proper management of water resources could be viewed as a means of fulfilling the ‘human’ rights to water, food and life. This anthropocentric perspective can be contrasted with the ecocentric perspective which views ‘the legal protection [of] human rights [as] an effective means of achieving the ends of conservation and environmental protection’.[54] Viewed from this perspective, the human right to water could be utilised as a means for individuals to force states/non-state entities to manage water resources in an ecologically sustainable manner.
In this sense, the human right to water can be regarded as a correlative right of the human right to a healthy environment. The human right to a healthy environment is a right of uncertain status at international law owing partly to its nature as a ‘third generation’ right.[55] Although the right is recognised in the domestic law of numerous nation states, at international law the right has not been formally recognised in any binding global international agreement. However, the link between human rights and environmental protection has been recognised in a number of international documents and statements.[56] For example, the relationship was recognised in the 1994 Draft Declaration of Principles on Human Rights and the Environment (‘Draft Principles’), which were included as an annex to the final report of the United Nations Special Rapporteur on Human Rights and the Environment, Madame Ksentini.[57] Tony Simpson and Vanessa Jackson have explained that the key message of the Draft Principles to the international community was that the right to a healthy environment is ‘indivisible from other fundamental human rights’.[58] The link between human rights and the environment had also been recognised earlier in the non-binding 1972 Stockholm Declaration which stated that a healthy environment is essential to ‘the enjoyment of basic human rights and the right to life itself’.[59]
Therefore it can be seen that the right to a healthy environment is essential to the enjoyment of the human right to water which is a derivative right of the right to life. However, opinion is divided over the utility and desirability of human rights approaches to environmental problems. Whilst human rights can be used to address environmental problems, their focus is necessarily anthropocentric – they are not focused upon protecting and increasing environmental health in recognition of its intrinsic worth. The focus is upon the utility of environmental health, services and resources for humans. Laura Horn argues that this focus may be potentially problematic as it may render ‘environmental objectives...subject to human priorities’.[60]
It is arguable whether this focus is problematic in practice, even if it may seem objectionable from a strictly ecocentric perspective which views environmental health as intrinsically valuable. The intergenerational aspect of ‘environmental rights’ ensures that even if preserving the environmental health of an area may not be in the immediate interests of current generations, it may be in the interests of future generations to do so.[61] However, it must be acknowledged that the anthropocentric nature of human rights could become problematic from an ecocentric perspective, if the environmental aspects of the rights are not adequately recognised. As noted by Conor Gearty, the threat of climate change has highlighted the need for human rights advocates to recognise the environmental dimensions of human rights claims and vice versa.[62] Despite this, it is inevitable that there will be occasions where the theoretical differences between the two approaches will produce different practical outcomes. Whilst human rights approaches may appear to be an indirect means of achieving environmental protection goals, the fact remains that arguments for environmental protection based upon the language of human rights are more likely to be accepted in the current political climate, than arguments seeking to establish rights possessed by ‘nature’.[63]
There are numerous benefits to human rights approaches to environmental problems. The most significant advantage is that human rights confer rights upon individuals and impose responsibilities upon governments to respect, protect and fulfil the rights. In contrast, approaches based on principles of environmental regulation may create rights and responsibilities, but these rights and responsibilities are ‘subject to regulatory whims’.[64] This distinction is important because it has significant implications for the enforceability of the right and perceptions of the significance of breaching the right. For instance, characterising government failure to act to mitigate environmental harm as a breach of fundamental human rights may have greater force than characterising it as a breach of international/national environmental regulations.
The use of human rights approaches may also have implications for enforceability, due to the fact that human rights can give rise to remedies for individuals at both the national and international levels.[65] Moreover, if international human rights are incorporated into domestic legislation, they can provide effective checks on legislation which may be inconsistent with the right.[66] Reading legislation ‘subject to’ the human right provides a more proactive approach to the protection of the right in the legislative sphere. In contrast, environmental regulation often only comes into operation once the right or responsibility created under legislation is breached, and thus can constitute a more reactive approach to the protection of the right.[67]
An additional benefit of human rights approaches is that they impose responsibilities on states to ensure that third parties such as corporations respect the right.[68] In the context of the right to water this might mean that it would allow individuals to sue their governments for failing to ensure that third parties adequately protect, respect and fulfil their right to clean, affordable and accessible water. Furthermore, as noted by the Australian Network of Environmental Defender’s Offices (‘ANEDO’), if environmental considerations are conceptualised as ‘rights’, then governments may be obligated to give more ‘weight’ to these considerations in government decision-making.[69]
Water scarcity is a serious problem in Australia, which is the driest inhabited continent on Earth. According to the United Nations Water Program (UN-Water), water scarcity can be defined as occurring when demand for water ‘by all sectors, including the environment, cannot be satisfied fully’.[70] Although water is a renewable resource it is ironically increasingly becoming a scarce resource around the world, especially in Australia. According to the Australian Government’s Bureau of Meteorology there are eight major causes of water scarcity in Australia, including climate change and the ‘need to increase environmental flows’ of water.[71] In relation to the threat of climate change, the Garnaut Climate Change Review warned that Australia’s ‘level of exposure and sensitivity to the impacts of climate change is high’.[71] In particular, climate change is projected to negatively impact on Australia’s water security resulting in increased drought in key agricultural regions, such as the Murray-Darling Basin (MDB).[72] The MDB is already subject to a multitude of competing water use claims, for which the human right to water may have important significance.
At present, the human right to water is inadequately formally protected in Australia. The right has not been recognised in the Constitution or federal legislation.[73] Owing to the absence of a federal Bill of Rights in the Australian Constitution or a federal Human Rights Act, there is also no explicit protection of the economic, social and cultural rights recognised under the ICESCR. Accordingly, it is not possible to argue that the human right to water is impliedly recognised at the federal level through other human rights, such as the right to life or health.
As noted by Paul Kildea and George Williams, apart from a few specific references (ss 98 and 100), the Australian Constitution ‘is silent on matters of water management’.[74] The most relevant provision, section 100, takes the following form:
100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.
In determining the relevance of s 100 to the human right to water, a number of considerations must be taken into account. First, the section is not comprehensive as it only applies to the ‘use of the waters’ of rivers and only for the defined purposes of ‘conservation or irrigation’. Accordingly, the section does not address all water types (such as, groundwater)[75] and does not (expressly) apply to the use of waters for critical human water needs. A further issue relates to the lack of clarity regarding the content and scope of the ‘right’ protected under s 100. As noted by Gummow and Crennan JJ in the recent High Court decision of Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3; (2010) 240 CLR 242, it is unclear whether s. 100 ‘guarantees access to the use of the waters for the purposes mentioned’ in the section, or whether it ‘does no more than impose a restriction upon the exercise of the power of the Commonwealth’.[76] As this matter did not arise for judicial consideration in Arnold, the issue remains unresolved.
In terms of the human right to water, this ambiguity leaves open the question of whether s.100 confers upon States and their residents a ‘right’ to the reasonable use of river waters for conservation and irrigation purposes. The application of the ‘right’ referred to in s 100 is also unclear. It is expressly directed to ‘States’ or the ‘residents therein’. As noted in the judgment of French CJ in Arnold, ‘there is...an interesting question whether the term ‘right of...the residents in s 100 is used in a collective sense rather than as a reference to individual rights’.[77] It may be argued that due to the inclusion of the word ‘or’ between the terms ‘State’ and ‘residents therein’, that an individual right was intended as it is placed in the context of being an alternative to the State’s right to the reasonable use of the waters.
Leaving aside the difficulty in interpretation of s 100, it is clear that the Section does not seek to confer a ‘human right’ to water. Whatever right it does seek to protect is a limited right, and a right which is very much dependent upon the context in which it was created.[78] As noted in the relevant case law and constitutional commentary, s 100 was inserted in response to state concerns over the Commonwealth possibly taking ‘action to ensure river navigability’ which ‘could potentially supersede their interests in using water for irrigation purposes’.[79]
It is evident therefore that s 100 was not intended to operate as a species of ‘human right’ to water and nor does it operate to do so. Accordingly, it can be seen that the human right to water is neither expressly, nor impliedly recognised under the Australian Constitution.[80]
As a party to the ICESCR, Australia has an obligation to implement the rights contained within the ICESCR at the national level in order to ensure that they are adequately protected, respected and fulfilled.[81] In 2009, the CESCR expressed concern that Australia has failed to construct a ‘legal framework for the protection of economic, social and cultural rights at the federal level’.[82] The Committee urged Australia to enact comprehensive legislation giving effect to the rights contained within the ICESCR and in particular to ‘take all the necessary and adequate measures to ensure the enjoyment of the right to...affordable drinking water’ in accordance with a number of the Committee’s general comments, including General Comment 15.[83] The Committee noted the absence of a federal Bill of Rights in Australia and supported the Australian Human Rights Commission’s proposal for the introduction of a ‘federal charter of rights that includes recognition and protection of economic, social and cultural rights’.[84] In addition, the Committee recommended that Australia establish an ‘effective mechanism to ensure the compatibility of domestic law with the Covenant’ and to ensure that adequate judicial remedies exist to enable the protection of the rights contained within the ICESCR.[85]
Echoing this sentiment, the Australian Network of Environmental Defender’s Offices (‘ANEDO’) in their submission to the National Human Rights Consultation in 2009 supported the national recognition of Australia’s international human rights obligations through the establishment of a federal Human Rights Act.[86] In particular, ANEDO supported the recognition of the right to a clean and healthy environment and reference to the principle of intergenerational equity.[87] The National Human Rights Consultation Committee considered numerous submissions from around Australia debating the necessity and desirability of introducing a Human Rights Act in Australia and other possible options for increasing recognition/protection of human rights. In its final report to the Attorney-General, the Committee made a number of recommendations which focused upon increasing the consideration of human rights by all arms of government.[88] In particular, the Committee recommended introducing a mechanism to enable the Parliament to scrutinise legislation to ensure its compatibility with Australia’s human rights obligations.[89] This recommendation is similar to the mechanism already in place in the Australian Capital Territory’s Human Rights Act 2004 (ACT) which also requires scrutiny of bills for consistency with human rights.[90]
The Committee also recommended the adoption of a federal Human Rights Act containing a number of mechanisms designed to ensure that every stage of government decision-making takes into consideration the human rights covered under the Act.[91] In response to the Committee’s recommendations, the Attorney-General launched ‘Australia’s Human Rights Framework’ which is essentially a range of policy measures aimed at increasing the protection of human rights in Australia.[92] Included within these measures was the introduction of the Human Rights (Parliamentary Scrutiny) Bill 2010 (Cth) which establishes a Parliamentary Joint Committee on Human Rights to examine Bills for compatibility with human rights.[93] However, the ‘Framework’ fails to adequately address the criticisms of Australia’s human rights approach made by the CESCR. The Framework does not introduce a federal charter of rights, and also fails to incorporate the majority of the recommendations made by the National Human Rights Consultation Committee in its report. As a consequence, economic social and cultural rights continue to receive inadequate recognition in Australia and for this reason a federal Human Rights Act should be introduced.
The most effective and comprehensive means of implementing the human right to water in Australia would be through the introduction of a federal Human Rights Act which recognises the right to life, the right to water and the right to a healthy environment.[94] Despite the introduction of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the formal recognition and protection of human rights in Australia is still inadequate. As noted by former High Court judge Michael Kirby, in Australia, international treaties are not self-executing.[95] Therefore, in order for international human rights law to have true full effect it must be enacted into Australian law.[96] Justice Kirby noted that in the absence of a constitutional Bill of Rights/Human Rights Act, ‘litigants and lawyers are turning to international law in the quest for a peg on which to hang arguments designed to persuade Australian courts that part of international jurisprudence has been, or should be, incorporated by judicial decision’.[97]
However, the fact that international obligations have not been expressly enacted into Australian law does not mean that they have no legal effect.[98] There are numerous ways in which the executive government’s ratification of an international treaty may have domestic legal consequences despite the fact that the treaty has not passed into domestic law. As noted by Justice Kirby, the relationship between Australian domestic law and international law is in a state of ‘evolution’ and increasingly the courts are looking to international law to resolve ambiguities in legislation and in the common law.[99] In Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 42, Justice Brennan stated that ‘international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights’. Similarly, in the context of the interpretation of legislation, the High Court has explained that the courts should presume that the legislature did not intend to interfere with fundamental human rights unless such an intention is ‘clearly manifested by unmistakable and unambiguous language’.[100]
International human rights obligations are also gaining relevance for constitutional interpretation and for administrative decision-making. In a series of constitutional law cases, Justice Kirby adopted a principle of constitutional interpretation which presumed that where there is ambiguity in the Constitution, the High Court should adopt an interpretation of the Constitution which conforms to fundamental rights (such as internationally recognised human rights) rather than an interpretation which infringes those rights.[101] However, as noted by Kristen Walker, ‘a robust role for international law is unlikely to be accepted by a majority of the Court’.[102]
Ratification of international instruments by the executive government has also been held to have legal consequences for administrative decision-making. In the High Court decision of Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, the majority held that when the executive government ratifies an international agreement, this amounts to a ‘positive statement...to the world and to the Australian people that the executive government and its agencies will act in accordance with it.’[103]
The majority held that this statement to the international and Australian communities may act as the foundation for a ‘legitimate expectation’ that the government will act in accordance with its obligations, or as in the case of Teoh, take into consideration international obligations in the course of administrative decision-making.[104] Whilst numerous commentators welcomed the decision as a positive development for the relationship between international and domestic law, the decision was not without its critics, including the Australian government at the time.[105] Criticisms focused largely upon the implications of the decision for parliamentary supremacy, given that the decision creates legal consequences for treaties ratified by the executive without Parliament’s consent.[106] In light of subsequent case law and political developments, the scope and nature of the doctrine of legitimate expectations remains unclear.[107]
The foregoing discussion demonstrates that even though Australia has failed to follow the lead of other western democracies by formally enacting international human rights obligations into domestic law, human rights do have a role in Australian law. However, this manner of protection is inadequate for a number of reasons. First, although the Court may have recourse to international human rights obligations (sourced from unincorporated treaties) in the interpretation of legislation and the common law, it may only do so where there is ambiguity.[108] Accordingly, the Court is considerably limited in its ability to take human rights into consideration. Moreover, as noted by Wendy Lacey, ‘any development at common law that is protective of human rights can, at any stage, be reversed by statute’.[109]
These limitations are further emphasised by the fact that the ‘relationship between treaties and domestic law is far from settled’.[110] As noted by Justice McHugh, one of the most significant limitations on the ability of the Court to consider the effect of legislation on international human rights is the fact that ‘judges are unable to consider the effect of legislation on fundamental human rights as a primary reference point when considering the validity of that legislation’. His Honour argues that:
In the absence of a national Bill of Rights...[i]f legislation falls within a head of power in the Constitution, the substantive content of the legislation is irrelevant; Parliament can therefore legislate as unjustly as it sees fit. One advantage of a Bill of Rights is that the substantive content of legislation would become constitutionally relevant. A Bill of Rights would provide a mechanism by which every piece of legislation, regardless of the intention of Parliament, would be judged according to human rights standards.[111]
In relation to judicial review of administrative decision-making, the Court is also constrained owing to the fact that at the federal level ‘there is no general legal obligation upon a decision-maker to give proper consideration to human rights when making a decision’.[112]
A Human Rights Act could ensure that fundamental human rights, such as the human right to water, would be considered at all stages of the legislative and decision-making processes of government. It should not be possible for the Parliament to pass legislation, or for the courts to rule on the validity of administrative decision-making without having primary regard for the impact on fundamental human rights.[113] A Human Rights Act could operate to ensure that the administration takes human rights into consideration in its decision-making processes – a requirement which already exists in the Victorian Human Rights Charter and the Human Rights Act 2004 (ACT).[114]
The National Human Rights Consultation Committee found that the majority of people surveyed by the Committee supported the introduction of a Human Rights Act in Australia.[115] The minority in opposition to the Act expressed concern over the impact the Act may have on the ‘relationship between the legislature and the judiciary’ and the ‘nature of what it asks judges to do’.[116] These concerns were based on the fact that human rights are generally expressed in vague and open terms which may become the subject of considerable ‘interpretation’ by the court, thus granting the unelected judiciary considerable discretion in relation to ‘policy decisions’.[117]
Numerous submissions objected to the role of the judiciary under a Human Rights Act as it could result in the judiciary ‘rewriting legislation and usurping [the role] of Parliament’.[118] Although it is true that a Human Rights Act would give the courts considerable discretion in regards to the interpretation of the right, it can be argued that this is not an improper role for the court. At present the High Court is already involved in ‘implying’ rights into the Constitution and ‘developing’ the common law in order to recognise and expand upon fundamental rights.[119] It would be preferable for Parliament to guide the Court’s consideration of the relationship between domestic and international law through the enactment of federal human rights legislation.
Concerns have also been raised in relation to the impact of Commonwealth human rights legislation on the federal balance of power. As noted by Sir Harry Gibbs, due to the operation of the inconsistency provision in the Constitution (s 109), a ‘Commonwealth bill of rights would be likely to have the effect of imposing extensive restrictions on the exercise of State rights and powers.’[120] Although it is true that a federal Bill of Rights would be likely to have such an effect, in the absence of federal legislative protection of human rights, crucial international human rights such as the right to water cannot be adequately protected, respected and fulfilled. The need for protection of these rights outweighs any objections based on the preservation of state rights.
In the alternative to the enactment of a federal statutory Bill of Rights it is argued that a ‘Human Right to Water Act’ should be introduced at the Commonwealth and state levels. In determining the content and scope of the legislation, the debates taking place in California (USA) regarding the passing of a number of bills establishing the right (‘Human Right to Water Package’), should be taken into account.[121]
If the human right to water was incorporated within federal human rights legislation, it could have a number of implications for environmental legislation and environmental policy decision-making. As noted by ANEDO, human rights considerations are not explicitly applicable in any of Australia’s domestic environmental laws.[122] Accordingly, the introduction of federal human rights legislation which explicitly requires the courts to interpret laws compatibly with human rights would therefore have a significant impact.[123] For instance, the courts would have to interpret legislation addressing water management (or impacting on water resources) in a manner which is ‘compatible’ with the human right to water.[124] The potential operation of the right to water in this context can be demonstrated through an examination of the right’s possible impact on the interpretation of the Water Act 2007 (Cth).[125]
The Water Act 2007 (Cth) is federal legislation designed to regulate the management of Australia’s largest river system – the Murray-Darling Basin. The objects of the Act are outlined in Section 3, which states that one of the objects is to ‘give effect to relevant international agreements’[126] and that in giving effect to these agreements the Act will promote the management of the Murray Darling’s water resources in ‘a way that optimises economic, social and environmental outcomes’.[127] Recently, significant legal debate has arisen over the interpretation of the requirement that ‘economic, social and environmental’ resources should be optimised. Although the Act explains that these outcomes should be optimised, it provides minimal guidance on how these different factors should be prioritised.[128]
In 2010, Water Minister Tony Burke sought legal advice regarding the prioritisation of these factors,[129] in response to significant opposition to the Murray-Darling Basin Authority’s Guide to the Proposed Basin Plan.[130] Some commentators argued that the balance used by the Authority in designing the Guide inappropriately prioritised environmental outcomes.[131] According to the Minister’s Statement, the Australian Government Solicitor advised that the three factors could be ‘optimised’.[132] Then-Chairman of the Authority Mike Taylor stated that the advice meant that the Authority now had more scope to consider economic and social considerations and potentially reduce the amount of water the Authority had allocated to regenerating environmental flows in the river system.[133]
In determining how to prioritise the three relevant factors, it is necessary to look to the objects of the Act which states that the Act is designed to ‘give effect to relevant international agreements’. The Act defines the meaning of ‘relevant international agreement’ in Section 4 to include certain specified international agreements (such as the Climate Change Convention) and ‘any other international convention to which Australia is a party’ that is ‘relevant to the use and management of the Basin water resources’ and is ‘prescribed by the regulations for the purpose of [the] paragraph’.[134]
It can be argued that the ICESCR should constitute a ‘relevant international agreement’ for the purposes of the Act, as the ICESCR has been interpreted to incorporate the right to water which is directly relevant to the ‘use and management of the Basin water resources’. If the ICESCR was prescribed as a relevant international agreement, the human right to water would have to be taken into consideration by the Authority in determining how to prioritise the economic, social and environmental outcomes of the Basin Plan.[135] As discussed earlier, the human right to water requires consideration of the principle of intergenerational equity which Edith Brown Weiss characterises as involving present generations holding the earth and its resources (such as water) on ‘trust for future generations’.[136] However, the principle also requires that present generations are also recognised as ‘beneficiaries’ under this trust which entitles them to ‘use and benefit’ from the earth’s resources.[137] Accordingly, the human right to water implicitly involves the consideration of the three factors the Act requires the Authority to take into consideration: the economic, social and environmental dimensions of water management.
However, as identified earlier, the international jurisprudence on the human right to water provides very little guidance on how these sometimes competing considerations are to be prioritised. In particular it is uncertain to what extent the scope of the right provides protection for the rights of farmers to use water for irrigation of their crops. The right has been traditionally conceptualised as a right to water for personal uses, which may or may not include general farming uses. In General Comment 15, the CESCR noted the inter-relationship between the right to water and the right to food, concluding that the scope of the right to water does extend to some extent to incorporate the water needs of farmers.[138] The determination of this issue may have significant consequences for the application of the right in the context of the Murray-Darling Basin, which is a vital part of Australia’s agricultural sector.
The Act itself adopts a narrow interpretation of the content of basic human water needs. Whilst the Act stipulates that the Basin Plan must ‘be prepared having regard to the fact that the Commonwealth and the Basin States have agreed...that critical human water needs are the highest priority water use for communities who are dependent on Basin water resources’,[139] it limits the definition of ‘critical human water needs’ to ‘core human consumption requirements in urban and rural areas’[140] and ‘those non-human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs’.[141] Accordingly, it appears that the Act adopts a relatively narrow definition of ‘critical human water needs’ which does not extend to the irrigation water needs of farmers.[142] Alex Gardner, Richard Bartlett and Janice Gray argue that the insertion of the ‘critical human water needs’ considerations has ‘established a competing allocation priority that will create an inevitable tension with arguments of environmental sustainability’ (emphasis added).[143] Although the Act’s narrow definition of critical human water needs may arguably lead to the creation of a ‘tension’ with ‘competing’ environmental sustainability priorities, recognition of the human right to water may relieve this tension as it implicitly incorporates considerations of environmental sustainability as an aspect of addressing critical human water needs.
The Authority’s recognition of the need to ensure the maintenance of adequate environmental flows is consistent with the human right to water, due to the immense impact further degradation of the Basin will have on both present and future generations. Further, the Authority was correct to note ‘that it is vital to change the balance between water for the environment and water for economic benefit in order to restore the environmental health of the Basin and preserve and enhance its long-term productivity.’[144] It is therefore concerning that the recently released proposed Basin Plan incorporates significantly reduced allocations for environmental flows.[145] An expert from Australia’s national science agency, the Commonwealth Scientific and Industrial Research Organisation (‘CSIRO’), stated that the allocations for environmental water under the proposed Plan are inadequate to return the river system to ecological health.[146]
Australia’s water management history is testament to the prioritisation of economic uses of water over water sustainability, resulting in the over-allocation of water entitlements in the Murray-Darling Basin. The Australian government is currently in the process of ‘buying back’ water in the Murray-Darling Basin in order to increase environmental flows.[147] In 2010, Prime Minister Julia Gillard announced that the government had allocated $3.1 billion in the budget to buy back water to rejuvenate the Murray-Darling Basin System.[148] However, doubt has been raised over the sufficiency of this budget allocation to address the problem, given the quantity of water that needs to be returned to the system and the quantity of water which was over-allocated in the past.[149] The Commonwealth’s environmental water entitlements are managed by the Commonwealth Environmental Water Holder (‘CEWH’) established under Part 6 of the Water Act 2007 (Cth). According to section 105(3) of the Act, the CEWH must perform its functions ‘for the purpose of protecting or restoring the environmental assets’ of the Murray-Darling Basin ‘so as to give effect to relevant international agreements’. As argued earlier, the ICESCR should be prescribed to constitute a ‘relevant international agreement’ for the purposes of the legislation. Accordingly, in the execution of its functions, the CEWH would have to ‘give effect to’ the human right to water.
The potential impact of the recognition of the human right to water on this crucial piece of federal legislation and water management policy demonstrates that implementing the human right to water in Australia may have important consequences for Australian water management. In a further example, it is possible that recognition of the right could have implications for government policy making in relation to the increasingly contentious practice of hydraulic fracturing (‘fracking’) and other water related impacts of the Coal Seam Gas (CSG) industry. The Australian Government’s National Water Commission has identified a number of ‘potential risks to sustainable water management’ posed by the activities associated with the CSG industry.[150] Potential risks include, the extraction of limited supplies of groundwater, impacts on surface water flows, the contamination of aquifers and the creation of waste water and ‘overly treated clean water’.[151]
During recent protests across the nation in opposition to the CSG industry, protesters argued that the industry’s practices could threaten supplies of drinking water in highly populous areas, such as Sydney in NSW.[152] Concerns have also been raised in relation to the potential impacts on irrigation water quality and allocation in agricultural areas.[153] Recognition of the right to water may have implications for whether mining leases are granted, under what conditions and in which areas. It could also impact on broader government policies addressing the regulation of the industry, for example by requiring the application of the precautionary principle.[154]
Recently, Greens Senator Larissa Waters tabled a Bill proposing an amendment to the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which would add a ‘water trigger’ allowing ‘the federal Government to consider the potentially irreversible impacts of CSG and other mining on water resources when assessing and approving mining activities’.[155] If the amendment were passed, it would have the effect of prohibiting the taking of any actions ‘in the course of mining operations’ which would have, or would be likely to have ‘a significant impact on the quality, structural integrity or hydraulic balance of a water resource’.[156] Such actions could only be taken if approved by the Environment Minister. This amendment would help safeguard the human right to water, which it is argued constitutes a relevant ‘international environmental responsibility’ for the purposes of the ‘Objects’ section of the legislation.[157]
The application of the procedural rights element of the right to water is also potentially important in this context. Recently, CSG company ‘Santos’ established an internet site which provides the public with access to 'up to date results’ of the company’s ‘surface and groundwater monitoring programs'.[158] As mentioned earlier, the procedural aspect of the right to water requires that water users have ‘full and equal access to information concerning water, water services and the environment, held by public authorities or third parties’ (emphasis added).[159] It is equally important that the public has access to independent information about water quality. The importance of independent information was highlighted recently by a report released by an environmental group which claims that independent water testing reveals that CSG water released by Santos is polluting an area of the Murray Darling Basin.[160] Although it is beyond the scope of this paper to comprehensively analyse the potential impacts of a statutorily recognised right to water on this issue, it is clearly an area deserving of further academic enquiry.
A statutorily recognised human right to water might also be used as grounds for a cause of action to challenge legislation or government decision-making which infringes the right.[161] The right has been used as a cause of action in South Africa where the right has been incorporated expressly into the Constitution.[162] In the 2009 South African case of Mazibuko v City of Johannesburg [2009] ZACC 28, the Constitutional Court of South Africa considered an appeal relating to the interpretation of the constitutional right to water. The case concerned numerous issues of interpretation, including the issue of whether the City of Johannesburg’s free water policy infringed the right to water contained in the Constitution on the grounds that it did not provide a sufficient quantity of free water to satisfy the right. Although the Court did not find that the right to water had been infringed by the policy, the case is significant as a precedent for the justiciability of a constitutionally entrenched human right to water and cultural, social and economic rights in general.
The Human Rights Law Centre (‘HRLC’) in Australia commented upon the significance of the South African case for the interpretation of the Victorian Human Rights Charter (‘VHRC’) which came into force in 2008.[163] Although there is no express right to water in the VHRC, Magdalena McGuire from the HRLC argues that the right to water may be relevant to the VHRC through interpretation of the right to life under section 9 of the Act.[164] Sharyn Broomhead notes that although the VHRC does not contain economic and social rights, the 2009 decision in Mazibuko may facilitate consideration as to whether these rights should be included in the VHRC.[165] The Victorian Equal Opportunity and Human Rights Commission argues that the legislature’s hesitation to incorporate economic, social and cultural rights into the Charter can be attributed to a number of false assumptions made about these rights.[166]
These assumptions include the assumptions that economic, social and cultural rights should not be legally implemented because they are ‘mere aspirations’, too ‘vague and ambiguous’ and ‘too expensive’.[167] Other assumptions relate to the role of the court, including the assumptions that cultural, economic and social rights ‘cannot be interpreted and enforced by courts’, that allowing courts to do so is ‘anti-democratic’ and courts ‘lack the capacity to interpret and enforce’ them.[168]
Rebecca Young argues that despite these criticisms (and others), a case can be made for the ‘normative justiciability’ of these rights on the grounds that they are ‘universal, practicable and appropriately specific’.[169] In support of this argument, Young cites the South African experience with the constitutional entrenchment of ESC rights.[170] She argues that ‘[i]f a constitutionally enabled judiciary has not, in practice, undermined legislative or executive functions, the likelihood of this occurring is even less in a model which embraces legislative supremacy’.[171] In South Africa, the Constitutional Court has adopted a ‘concept of reasonableness’ that allows the Court to ‘assess the reasonableness of attempts to achieve a right, including considering the overall policy context’.[172] Whilst critics may argue that this would constitute an inappropriate role for the Court in the Australian context,[173] as noted by Sean Flynn and Danwood Mzikenge Chirwa, even under the South African jurisprudence the Court has recognised that ‘the state has a wide margin of discretion regarding the choice of measures to implement socioeconomic rights.’[174] The focus of the Court’s enquiry is on whether the State has taken sufficient steps (according to its capacity) to achieve the ‘progressive realisation’ of the right.[175] Under the ‘dialogue model’ advocated by the National Human Rights Consultation Committee, successful litigants bringing a cause of action on the grounds of a breach of a human right protected under a federal Human Rights Act could seek a ‘declaration of incompatibility’ from the court.[176] As the proposed declarations of incompatibility do not allow the judiciary to invalidate legislation, ‘parliamentary sovereignty is preserved’[177] whilst still providing a ‘strong political incentive for the Parliament to review the law to ensure compliance with human rights.’[178]
Using the right to water as a cause of action in Australia could greatly facilitate protection of the right. For this reason, ANEDO’s proposal that a Human Rights Act for Australia should provide for a ‘separate cause of action to be taken against public authorities in breach of protected rights to be brought in courts’ is supported.[179] Under this proposal, the right to water could be used as a cause of action to prevent/stop pollution of water resources. Case law in India concerning the right to water implied from the right to life in India’s Constitution demonstrates that the right to water may be used to stop pollution of crucial water sources.[180]
If the justiciability of the right is not accepted, a Human Rights Act should enable the Australian Human Rights Commission to hear complaints relating to economic and social rights.[181] In the right to water context, the Commission should be empowered to hear complaints concerning potential breaches of the right. In General Comment No. 15, the CESCR outlined a non-comprehensive list of possible breaches of the right, including:
i. ‘arbitrary or unjustified disconnection or exclusion from water services or facilities’;
ii. ‘discriminatory or unaffordable increases in the price of water’;
iii. ‘pollution and diminution of water resources affecting human health’.[182]
Implementation of the human right to water in Australia may also have implications for the commodification of water.[183] Increasingly around the world water service delivery and management is being privatised in various forms and to varying degrees – involving a transfer of power from the State to private entities.[184] Unlike a number of overseas jurisdictions (such as the UK), Australia has generally not embraced the privatisation model of water service delivery.[185] However, in terms of water management, Australian jurisdictions are increasingly utilising market-based approaches, such as water trading and water pricing.[186] Whilst management of water resources is still primarily the responsibility of state/territory governments, Australia now operates one of the world’s most advanced water trading markets.[187] According to some estimates, the Australian water market is worth in excess of $20 billion dollars.[188] The market involves the trade of tradeable water rights which is intended to ensure that ‘increasingly scarce water resources are allocated according to the highest valued use’.[189]
As explained by Gardner, Bartlett and Gray, in most state/territory jurisdictions, ‘raw market outcomes’ have been balanced by ‘requiring ministerial (or the equivalent) consent to transfers’ which are ‘often tied to management or resource plans and other rules’.[190] A number of concerns have been raised in relation to the adequacy of this consent mechanism and whether water trading in general is a satisfactory water management approach.[191] From a human right to water perspective, a possible conflict between water trading and the right to water may arise if trading jeopardises the environmental sustainability of water resources. The National Water Commission’s study into the impacts of water trading on the southern Murray-Darling Basin concluded that ‘water markets and trading are making a major contribution to the achievement of the [National Water Initiative] objective of optimising the economic, social and environmental value of water’.[192] Although the Commission emphasised the difficulty of assessing the environmental impact of water trading, the report analysed the various environmental impacts of water trading in the MDB.[193] The report concluded that at present water trading in Australia has overall not had a negative impact on the environmental sustainability of water resources.[194] In fact, the study found that water trading has actually had some positive impacts on environmental sustainability.[195]
However, if in the future water trading resulted in the prioritisation of economic uses of water over the environmental sustainability of water, the human right to water could potentially have operation in this regard. General Comment 15 explains that water ‘should be treated as a social and cultural good’ rather than primarily as an ‘economic good’.[196] Moreover, as explained earlier, the human right to water requires the sustainable management of water resources in order to ensure that they will be available for both present and future generations.
Another potential area where the right to water may have implications for water commodification relates to the pricing of water for domestic use. The failure to recognise the true value of water has led to overuse and poor management in many areas of the world (including Australia). To overcome this problem, numerous jurisdictions have introduced water pricing. However, in a number of countries, the pricing of water has made the price of water prohibitively costly, thus infringing the human right to water.[197] Given the projected impacts of climate change and population growth on Australia’s future water supplies, it is not unreasonable to presume that the price of water is going to become an increasingly significant issue for Australians. Although the human right to water does not require that water is to be provided for ‘free’ (as this could potentially undermine the right, as it could lead to overuse of water resources), it does require that every human being is able to access sufficient water for their personal needs. Accordingly, the right could be interpreted as operating to guarantee reduced cost access to a certain quantity of water required for basic human water needs. It could also be interpreted as requiring that the current system of water pricing should be maintained, as a means of ensuring environmental sustainability.[198]
The human right to water has now been recognised as a legally binding human right impliedly recognised under the International Covenant on Social, Economic and Cultural Rights. As a party to the Covenant, Australia has an obligation under international law to domestically implement the human right to water. Owing to the absence of federal legislative protection of social, economic and cultural rights in Australia and the limitations placed on the judiciary’s ability to consider international human rights jurisprudence, the human right to water is inadequately recognised under Australian law. For this reason, Australia should adopt a federal Human Rights Act recognising both the human right to water and the human right to a clean and healthy environment as independent justiciable human rights. Alternatively, it is proposed that Australia should introduce a ‘Human Right to Water Act’ at the Commonwealth and state/territory levels, explicitly outlining the scope, content and application of the right.[199] Implementing the human right to water in Australia could have potentially significant implications for the protection of the right and water management generally.
The right to water has been utilised in other jurisdictions around the world to hold governments accountable for infringements of the right. As the right to water incorporates the principle of intergenerational equity, it can also be used as a tool for addressing water scarcity which threatens the rights of both present and future generations. Implementation of the right may have implications for the interpretation of environmental legislation and policy decision-making, as it requires legislation and decision-making to consider the intergenerational aspects of the right to water. Implementation may also have implications for the commodification of water in Australia, especially if commodification results in negative impacts on environmental sustainability or jeopardises equitable access to water.
Although much work remains to be done in this area, it can be seen that recognition of the fundamental interrelationship between human rights and the environment is important for the achievement of sustainable development at present and into the future.
[*] PhD Candidate, University of Tasmania. BA-LLB (Hons) (UTas). Thank you to my supervisors, my family and the very helpful comments from anonymous reviewers on an earlier draft.
[1] Resolution on the Human Right to Water and Sanitation, GA Res 10967, UN GAOR, 64th sess, 108th plen mtg, UN Doc A/64/L.63/Rev.1 (28 July 2010).
[2] Resolution on the Human Right to Water and Sanitation, GA Res 10967, UN GAOR, 64th sess, 108th plen mtg, [3] UN Doc A/64/L.63/Rev.1 (28 July 2010).
[3] Resolution on the Human Right to Water and Sanitation, GA Res 10967, UN GAOR, 64th sess, 108th plen mtg, [2] UN Doc A/64/L.63/Rev.1 (28 July 2010).
[4] Resolution on Human Rights and Access to Safe Drinking Water and Sanitation, UN GAOR Res 16309, UNHRC, 15th session [3] UN Doc A/HRC/15/L.14 (28 July 2010).
[5] Office of the High Commissioner for Human Rights, A Landmark Decision to Make the Right to Water and Sanitation Legally Binding (2010) <http://www.ohchr.org/EN/NewsEvents/Pages/RightToWaterAndSanitation.aspx/> .
[6] Ibid.
[7] Peter Gleick, The Human Right to Water, at Last (26 October 2010) Circle of Blue <http://www.circleofblue.org/waternews/2010/world/peter-gleick-the-human-right-to-water-at-last/> .
[8] Resolution on Human Rights and Access to Safe Drinking Water and Sanitation, UNGA Res 16309, UNHRC, 15th sess [8 (a)] UN Doc A/HRC/15/L.14 (2010).
[9] Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71 (1948).
[10] For example, the right to water is referred to in the following treaties: Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13, (entered into force 3 September 1981) art 14 (2) (h); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1990) art 24 (2) (c). Other relevant binding and non-binding international instruments are referred to in General Comment No. 15, UNCESCR, 29th sess [5], E/C.12/2002/11 (2002).
[11] Arjun Kumar Khadka, ‘The Emergence of Water as a ‘Human Right’ on the World Stage: Challenges and Opportunities’ (2010) 26 International Journal of Water Resources Development 1, 37-38.
[12] Erik Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 31 Ecology Law Quarterly 957, 968.
[13] Amanda Cahill, ‘The Human Right to Water – a Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 The International Journal of Human Rights 3, 389, 391.
[14] Resolution on Human Rights and Access to Safe Drinking Water and Sanitation, UNGA Res 16309, UNHRC, 15th sess UN Doc A/HRC/15/L.14 (28 July 2010).
[15] Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71 (1948).
[16] Australian Human Rights Commission, Human Rights Explained (2010) <http://www.hreoc.gov.au/education/hr_explained/5_international.html> .
[17] John Scanlon, Angela Cassar and Noémi Nemes, ‘Water as a Human Right?’ (2004) International Union for Conservation of Nature Environmental Policy and Law Paper No. 51 <http://data.iucn.org/dbtw-wpd/edocs/EPLP-051.pdf> . It has also been argued that the right to life is included in the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171, art 6 (entered into force 3 January 1976) implicitly incorporates the right to water: Amanda Cahill-Ripley, The Human Right to Water and its Application in the Occupied Palestinian Territories (Routledge, 2011) 40.
[18] Ramin Pejan, ‘The Right to Water: The Road to Justiciability’ (2004) 36 George Washington International Law Review 5, 1181, 1184.
[19] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
[20] General Comment No. 15, UNCESCR, 29th sess, E/C.12/2002/11 (2002).
[21] General Comment No. 15, UNCESCR, 29th sess [3], E/C.12/2002/11 (2002).
[22] Ibid.
[23] Office of the United Nations High Commissioner for Human Rights, Committee on Economic, Social and Cultural Rights, Fact Sheet No. 16 (Rev.1) (2004) <http://www.ohchr.org/Documents/Publications/FactSheet16rev.1en.pdf> .
[24] Resolution on Human Rights and Access to Safe Drinking Water and Sanitation, UNGA Res 16309, UNHRC, 15th sess UN Doc A/HRC/15/L.14 (2010).
[25] Sarah I Hale, ‘Water Privatisation in the Philippines: The Need to Implement the Human Right to Water’ (2006) 15 Pacific Rim Law & Policy Journal 765, 783.
[26] Rebecca Bates, ‘The Road to the Well: An Evaluation of the Customary Right to Water' (2010) 19 Review of European Community & International Environmental Law 3, 282-284. Bates explains that ‘the term usage refers to a ‘repeated practice or habit’ performed by a State and opinio juris refers to the belief or acceptance held by the State as to the existence of the particular practice’.
[27] Scanlon, Cassar and Nemes, above n 17. As noted by Donald K Anton and Dinah L Shelton, ‘130 constitutions in the world...include a state obligation to protect the environment or a right to a safe, healthy, ecologically balanced (or other adjective) environment. About half the constitutions take the rights-based approach, and the other half proclaim state duties’: Donald K Anton and Dinah L Shelton, Environmental Protection and Human Rights (Cambridge University Press, 2011) 520.
[28] A small number of predominantly developing countries have expressly recognised the right to water in their national constitutions, including the Republic of Nicaragua, Democratic Republic of Congo, The Republic of South Africa, The Republic of Uganda, Republic of Ecuador, Oriental Republic of Uruguay, Republic of Bolivia, and The Republic of Kenya. It should also be noted that Mexico is currently undertaking the process of incorporating the right to water and the right to a healthy environment into the Mexican Constitution. As noted by Amanda Cahill-Ripley, a number of countries have introduced constitutional provisions recognising ‘explicit state duties in relation to water and sanitation services’, including The Republic of the Gambia, the Federal Democratic Republic of Ethiopia and The Republic of Zambia. For a comprehensive list of these provisions and national domestic legislation recognising the right, see: Amanda Cahill-Ripley, The Human Right to Water and its Application in the Occupied Palestinian Territories (Routledge, 2011) 184.
[29] In the 2004 decision of M.C. Mehta v Union of India (2004) 3 S.C.R. 128, the Supreme Court of India confirmed the Court’s position that the right to life under Art. 21 of the Constitution of India includes the right to clean water: Vrinda Narain, ‘Water as a Fundamental Right: A Perspective from India’ (2009) 34 Vermont Law Review 917, 917.
[30] Chiara Armeni, ‘The Right to Water in Belgium’ (International Environmental Law Research Centre Briefing Paper, 2008), 6 <http://www.ielrc.org/content/f0802.pdf> .
[31] Chiara Armeni, ‘The Right to Water in Italy’ (International Environmental Law Research Centre Briefing Paper, 2008), 8 <http://www.ielrc.org/content/f0801.pdf> .
[32] For a summary of the most significant case law around the world, see: Scanlon, Cassar and Nemes, above n 17, Appendix II.
[33] Rebecca Bates, ‘The Road to the Well: An Evaluation of the Customary Right to Water' (2010), 19 Review of European Community & International Environmental Law 3, 282, 293.
[34] Melina Williams, ‘Privatization and the Human Right to Water: Challenges for the New Century’ (2006) 29 Michigan Journal of International Law 469, 478. However, the ‘persistent objector’ exception must be noted: Patrick Dumberry, 'Incoherent and Ineffective: The Concept of Persistent Objector Revisited' (2010) International and Comparative Law Quarterly 779, 781.
[35] Cahill, above n 13, 403.
[36] General Comment No. 15, UNCESCR, 29th sess [10-16], E/C.12/2002/11 (2002).
[37] Ibid [10].
[38] Ibid [2].
[39] Ibid [11].
[40] Ibid.
[41] Douglas Fisher, The Law and Governance of Water Resources: The Challenge of Sustainability (Edward Elgar, 2009) 108.
[42] General Comment No. 15, UNCESCR, 29th sess [20], E/C.12/2002/11 (2002).
[43] Scanlon, Cassar and Nemes, above n 17.
[44] General Comment No. 15, UNCESCR, 29th sess [28], E/C.12/2002/11 (2002).
[45] United Nations Educational, Scientific and Cultural Organization, Declaration on the Responsibilities of the Present Generations towards Future Generations (1997) <http://www.unesco.org/cpp/uk/declarations/generations.pdf> .
[46] Helen Greatrex, ‘The Human Right to Water’ (2004) 2 Human Rights Research Journal 5.
[47] General Comment No. 15, UNCESCR, 29th sess [48], E/C.12/2002/11 (2002).
[48] Ibid.
[49] Scanlon, Cassar and Nemes, above n 17, 31.
[50] For a summary of procedural rights ‘codified in several human rights and environmental instruments’, see: Scanlon, Cassar and Nemes, above n 17, 53 [Appendix IV]. See also, Donald K Anton and Dinah L Shelton, Environmental Protection and Human Rights (Cambridge University Press, 2011), 357-435.
[51] See generally Alan Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment’ in Alan Boyle and Michael Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon, 1998) 43.
[52] Michael Anderson, ‘Human Rights Approaches to Environmental Protection: An Overview’ in Alan Boyle and Michael Anderson (eds), Human Rights Approaches to Environmental Protection (1998) 1, 3.
[53] Ibid.
[54] Ibid.
[55] Third generation rights are ‘collective’ rights which do not usually receive the same degree of recognition as ‘first’ and ‘second’ generation rights.
[56] See generally, Human rights and the environment, GA Res 16/11 UNHRC, 16th sess, UN Doc A/HRC/RES/16/11 (12 April 2011); Donald K Anton and Dinah L Shelton, Environmental Protection and Human Rights (Cambridge University Press 2011) 519-543.
[57] Fatma Zohra Ksentini, ‘Review of Further Developments in Fields with which the Sub-Commission has been Concerned Human Rights and the Environment’, UNESC, 46th sess, E/CN.4/Sub.2/1994/9 (1994). annex I (‘Draft Principles on Human Rights and the Environment’).
[58] Tony Simpson and Vanessa Jackson, ‘Human Rights and the Environment’ (1997) Environmental and Planning Law Journal 268, 273.
[59] Declaration of the United Nations Conference on the Human Environment (‘Stockholm Declaration’) 11 ILM 1416 (1972).
[60] Laura Horn, ‘The Implications of the Concept of a Common Concern of a Human Kind on a Human Right to a Healthy Environment’ (2004) 1 Macquarie Journal of International and Comparative Environmental Law 233, 239.
[61] For a discussion of the intergenerational aspects of ‘environmental rights’, see: Richard P Hiskes, ‘Missing the Green: Golf Course Ecology, Environmental Justice, and Local “Fulfillment” of the Human Right to Water’ (2010) 32 Human Rights Quarterly 2.
[62] Conor Gearty, 'Do Human Rights Help or Hinder Environmental Protection?' (2010) 1 Journal of Human Rights and the Environment 1, 7, 21.
[63] There is a substantial body of literature addressing the notion of rights possessed by nature. Recently, advocates have called for the introduction of a ‘Universal Declaration of Planetary Rights’ at the United Nations: Juliette Jowit, 'British Campaigner Urges UN to Accept 'Ecocide' as International Crime', The Guardian (online), 9 April 2010, <http://www.guardian.co.uk/environment/2010/apr/09/ecocide-crime-genocide-un-environmental-damage> . See generally, Peter Burdon (ed), Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakefield, 2011).
[64] Ling-Yee Huang, ‘Not Just another Drop in the Human Rights Bucket: The Legal Significance of a Codified Human Right to Water’ (2008) 20 Florida Journal of International Law 353, 359.
[65] Ibid. However, the nature and extent of enforcement of human rights differs according to the type of right involved (ie whether it is an economic, social and cultural right or a civil/political right) and the level of implementation of human rights obligations at the national level. ESC rights do not enjoy the same enforcement and oversight mechanisms as civil/political rights at the international level. However, in 2008 the UN General Assembly passed a resolution adopting the ‘Optional Protocol’ to the ICESCR: Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, GA Res 63/117, UN GAOR, 63rd sess, 66th plen mtg, UN Doc A/RES/63/117 (2008). As explained by the Office of the High Commissioner for Human Rights, ‘[u]nder the Optional Protocol, individuals will be able to complain to the Committee on Economic, Social and Cultural Rights about violations of rights guaranteed in the ICESCR, such as the rights to health, food, water and adequate housing’: Office of the High Commissioner for Human Rights, 'A Boost to Protecting Economic, Social and Cultural Rights' (2009) <http://www.ohchr.org/EN/NewsEvents/Pages/OP_ICESCR.aspx>. As the Optional Protocol has not yet received enough ratifications to enter into force, only an implementation monitoring process is in operation at the international level (through the CESCR). Accordingly, achieving enforcement of ESC rights is largely reliant on state parties implementing the rights on the domestic level. In regards to the right to water, in General Comment No. 15, UNCESCR, 29th sess [55], E/C.12/2002/11 (2002), the CESCR stated that state parties should ensure that ‘[a]ll victims of violations of the right to water should be entitled to adequate reparation, including restitution, compensation, satisfaction or guarantees of non-repetition’.
[66] Environment Defenders Office (NSW) and Environment Defenders Office (Vic) Ltd, ‘Protection of Human Rights and Environmental Rights in Australia’ (Report, 2009), 21 <http://www.edo.org.au/edovic> .
[67] However, it is acknowledged that legislation requiring environmental impact assessments to be conducted does constitute a preventative regulatory approach.
[68] Recently, the UNCESCR released a statement re-iterating the obligations of States under the ICESCR regarding corporations - ‘States Parties have the primary obligation to respect, protect and fulfil the Covenant rights of all persons under their jurisdiction in the context of corporate activities, undertaken by state-owned or private enterprises’: Statement on the obligations of States Parties regarding the corporate sector and economic, social and cultural rights, UNCESCR, 46th sess [3], E/C.12/2011/1 (2011).
[69] Australian Network of Environmental Defender’s Offices, ‘Submission to the National Human Rights Consultation’ (Submission, 2009), 31 <http://www.edo.org.au/policy/090615humanrights.pdf> .
[70] UN-Water, Coping with Water Scarcity: a Strategic Issue and Priority for System-Wide Action <http://www.unwater.org/downloads/waterscarcity.pdf> .
[71] Australian Government Bureau of Meteorology, Transforming Australia’s Water Resources Information (2010) <http://www.bom.gov.au/water/about/publications/document/InfoSheet_1.pdf> .
[71] Ross Garnaut, ‘Garnaut Climate Change Review’ (Final Report, 2008), 121 <http://www.garnautreview.org.au/pdf/Garnaut_Chapter6.pdf> .
[72] Ibid 125.
[73] Only two state/territory jurisdictions have passed human rights Acts/charters: the Australian Capital Territory (ACT) and Victoria. Although the right to life is recognised in both jurisdictions, the human right to water is not explicitly recognised in either. The Australian Capital Territory Economic, Social and Cultural Rights Research Project released a report in 2010 which recommended that the inclusion of ESC rights guarantees in the Human Rights Act 2004 (ACT) would be ‘desirable and feasible’. In particular, the report recommended the inclusion of the right to water: Australian Capital Territory Economic, Social and Cultural Rights Research Project, ‘Australian Capital Territory Economic, Social and Cultural Rights Research Project Report’ (Report, 2010) <http://acthra.anu.edu.au> . The report’s recommendations are, at the time of writing. the subject of a community consultation process. See below n 161 for a discussion of the position in Victoria.
[74] Paul Kildea and George Williams, ‘The Constitution and the Management of Water in Australia’s Rivers’ [2010] SydLawRw 27; (2010) 32 Sydney Law Review 595, 602.
[75] In Arnold v Minister Administering the Water Management Act [2010] HCA 3; 2000 240 CLR 242, 258, it was held by French CJ that ‘there is no plausible basis for construing the limitation as applying to underground water in aquifers’. However, his Honour was careful to note that this did not suggest that the ‘prohibition is limited to navigable rivers’.
[76] [2010] HCA 3; (2010) 240 CLR 242, 264.
[77] Ibid 257.
[78] For a discussion of the historical context and constitutional debate surrounding the development of s 100, see: Daniel Connell, ‘Section 100 - A Barrier to Environmental Reform?’ (2003) 8 Australasian Journal of Natural Resources Law and Policy 2, 83.
[79] Paul Kildea and George Williams, ‘The Constitution and the Management of Water in Australia’s Rivers’ [2010] SydLawRw 27; (2010) 32 Sydney Law Review 595, 601.
[80] However, it should be noted that case law relating to the Constitution and rights to water/water management may have important implications for the protection of the human right to water in Australia, especially in the context of water ownership. See generally, ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140, which amongst other things, clarified that ‘under the common law, water fundamentally is a common resource; and under the legislation in Australia, water is fundamentally is a common resource’: Douglas Fisher, ‘Water Law, the High Court and Techniques of Judicial Reasoning’ (2010) 27 Environmental Planning and Law Journal 85, 91.
[81] Article 2 of the ICESCR states that '[e]ach State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures': International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3, art 2 (entered into force 3 January 1976).
[82] Committee on Economic, Social and Cultural Rights, ‘Consideration of Reports Submitted by State Parties under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights – Australia’ 42nd sess [11] E/C.12/AUS/CO/4 (2009).
[83] Ibid 27.
[84] Ibid 11.
[85] Ibid.
[86] Australian Network of Environmental Defender’s Offices, above n 68, 2.
[87] Ibid.
[88] National Human Rights Consultation Committee, National Human Rights Consultation Report (2009) <http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report> .
[89] Ibid Recommendation 6.
[90] Human Rights Act 2004 (ACT) ss 37-39.
[91] National Human Rights Consultation Committee, above n 89.
[92] Attorney-General’s Department, Australian Government, Australia’s Human Rights Framework (2010) <http://www.ag.gov.au/humanrightsframework> .
[93] In November 2011, the Federal Parliament passed The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Act 2011 (Cth). As explained by the Human Rights Law Centre, the new laws 'require that each new Bill introduced into Federal Parliament is accompanied by a Statement of Compatibility of the proposed law’s compliance with Australia’s international human rights obligations’ and ‘establish a new Parliamentary Joint Committee on Human Rights to provide greater scrutiny of legislation for compliance with the seven core international human rights treaties to which Australia is party’: Human Rights Law Centre, Passage of Human Rights (Parliamentary Scrutiny) Act an Important Step in Respecting and Promoting Human Rights in Australia (25 Nov 2011) <http://www.hrlc.org.au/content/passage-of-parliamentary-scrutiny-legislation/> .
[94] Although some support exists for a constitutionally entrenched bill of rights, the reality remains that it is extremely unlikely that sufficient support could be garnered to introduce a constitutional bill of rights. For this reason, this article advocates for a statutory bill of rights.
[95] Justice Michael Kirby, ‘Domestic Implementation of International Human Rights Norms’ (1999) 5 Australian Journal of Human Rights 2, 109.
[96] Ibid.
[97] Ibid.
[98] It is also interesting to note that the Australian Law Reform Commission (‘ALRC’) is required to ‘have regard to all of Australia's international obligations that are relevant to the matter’ under consideration, especially human rights obligations: Australian Law Reform Commission Act 1996 (Cth) s 24(2).
[99] Justice Michael Kirby, ‘The Road from Bangalore: The First Ten Years of the Bangalore Principles on the Domestic Application of International Human Rights Norms’ (Speech delivered at the Conference on the 10th Anniversary of the Bangalore Principles, Bangalore, India, 28 December 1998) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_bang11.htm> .
[100] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437.
[101] Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 657; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 417.
[102] Kristen Walker, ‘International Law as a Tool for Constitutional Interpretation’ [2002] MonashULawRw 4; (2002) 28 Monash University Law Review 85, 85.
[103] Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 288.
[104] Ibid.
[105] For a comprehensive analysis of the Australian Government’s negative reaction to the decision in Teoh, see: Susan Roberts, ‘Teoh v Minister for Immigration: The High Court Decision and the Government’s Reaction to it’ [1995] AUJlHRights 1; (1995) 2 Australian Journal of Human Rights 1, 135.
[106] This sentiment was expressed in the general outline to the Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth) - 'The Government is of the view that this development is not consistent with the proper role of Parliament in implementing treaties in Australian law. Under the Australian Constitution, the Executive Government has the power to make Australia a party to a treaty. It is for Australian Parliament, however, to change Australian law to implement treaty obligations’. See also, Elizabeth Handsley, ‘Legal Fictions and Confusion as Strategies for Protecting Human Rights: A Dissenting View on Teoh’s Case’ [1997] NewcLawRw 1; (1997) 2 Newcastle Law Review 1, 56, 67.
[107] See: Matthew Groves, ‘Treaties and Legitimate Expectations – The Rise and Fall of Teoh in Australia’ (2010) 8 Monash University Law Research Series <http://www.austliiedu.au/au/journals/UMonashLRS/2010/8.html> Wendy Lacey, ‘The End For Teoh? Re Minister for Immigration and Multicultural Affairs; Ex parte Lam’ (Paper presented at the 2004 Constitutional Law Conference, Gilbert & Tobin Centre of Public Law, Sydney, 20 February 2004).
[108] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38. Moreover, as noted by Catherine Branson (in reference to the decision of Al Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562), judicial opinion often varies regarding the presence of ambiguity: Catherine Branson, ‘Using Human Rights to Inform Administrative Decision-Making’ (Speech delivered at the Council of Australasian Tribunals, 25 August 2009) <http://www.hreoc.gov.au/about/media/speeches/speeches_president/2009/20090825_using_hr.html> .
[109] Wendy Lacey, International Human Rights Law and the Exercise of Judicial Discretion in Australia (PhD Thesis, University of Tasmania, 2006) 384.
[110] Glen Cranwell, 'Treaties and Australian Law - Administrative Discretions, Statutes and the Common Law' [2001] QUTLawJJl 1; (2001) 1 Queensland University of Technology Law and Justice Journal 1, 49, 54.
[111] Justice Michael McHugh, ‘Does Australia Need a Bill of Rights?’ (Paper presented at the New South Wales Bar Association Forum, 2006) <http://www.nswbar.asn.au/docs/resources/lectures/bill_rights.pdf> .
[112] Catherine Branson, above n 109. However, the Australian Government is currently in the process of improving human rights education for public sector officials, with the particular aim of providing ‘guidance to administrative decision-makers on relevant human rights considerations to take into account’: Australian Government, Human rights and the Public Sector (2011) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Human_rights_and_anti-discriminationHuman_rights_and_the_public_sector> .
[113] The model proposed is the ‘dialogue model’ advocated by the National Human Rights Consultation Committee (above n 89).
[114] The National Human Rights Consultation Committee (above n 89) recommended that ‘any federal Human Rights Act require Commonwealth public authorities to act in a manner compatible with human rights (other than economic and social rights) and to give proper consideration to relevant human rights (including economic and social rights) when making decisions’.
[115] Ibid.
[116] Ibid.
[117] Ibid.
[118] Tom Campbell and Nicholas Barry, cited in National Human Rights Consultation Committee, National Human Rights Consultation Report (2009) <http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report> .
[119] As noted by former High Court Chief Justice Murray Gleeson, ‘[t]here is an inconsistency between an assertion that the common law makes legislative protection of human rights unnecessary and a complaint that legislative protection of human rights will empower judges who apply the legislation to make decisions about matters that are inappropriate for judicial decision making’: Murray Gleeson cited in National Human Rights Consultation Committee, ‘Chapter 15 – The Committee’s Findings’ National Human Rights Consultation Report (2009) <http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationRepNat-Chapter15#_ftnref9> .
[120] Sir Harry Gibbs, ‘Chapter Seven: Does Australia Need a Bill of Rights?’ (Proceedings of the Sixth Conference of the Samuel Griffith Society, 1995) <http://samuelgriffith.org.au/papers/html/volume6/v6chap7.htm> .
[121] The Governor has signed into law a number of the bills included in the ‘Package’: Office of Governor Edmund G Brown Jr, Governor Brown Signs Legislation to Bring Clean Drinking Water to Californians (2011) <http://gov.ca.gov/news.php?id=17262> .
[122] Australian Network of Environmental Defender’s Offices, above n 69.
[123] The National Human Rights Consultation Committee (above n 89) recommended that such an interpretive provision should ‘not apply in relation to economic, social and cultural rights’, such as the right to water.
[124] In relation to the contentious issue of courts making ‘declarations of compatibility’, the National Human Rights Consultation Committee (above n 89) recommended that only the High Court of Australia should be given the power to make a declaration of incompatibility.
[125] It should be noted that this discussion of the relevance of the right to the Water Act 2007 (Cth) does not rely upon the passing of any form of federal legislative recognition of the right. It simply serves to demonstrate how a statutorily recognised right to water might impact on legislation. The author is indebted to an anonymous reviewer for highlighting the need for this clarification.
[126] Water Act 2007 (Cth) s 3(b).
[127] Water Act 2007 (Cth) s 3(c).
[128] However, the Act does stipulate that ‘critical human water needs are the highest priority water use for communities who are dependent on Basin water resources’: Water Act 2007 (Cth) s 86A(1)(a).
[129] Lenore Taylor, ‘Basin plan gets bogged down in legal wrangling’ Sydney Morning Herald (online), 26 October 2010 <http://www.smh.com.au/environment/water-issues/basin-plan-gets-bogged-down-in-legal-wrangling-20101026-172eq.html> .
[130] Murray-Darling Basin Authority, Guide to the Basin Plan (2010) <http://thebasinplan.mdba.gov.au/guide/guide.php?document=the-murray-darling-basin & chapter=context-for-decisions> . The Murray-Darling Basin Authority is charged with establishing a ‘Basin Plan’ which takes into consideration the objects of the Act outlined in s 3: Water Act 2007 (Cth) s 20.
[131] Taylor, above n 130.
[132] The Hon Tony Burke, ‘Murray Darling Basin Reform - Interpretation of the Water Act 2007’ (Media Release, 25 October 2010) <http://www.environment.gov.au/minister/burke/2010/pubs/sp20101025.pdf> .
[133] Ibid.
[134] Water Act 2007 (Cth) s 4(i).
[135] Water Act 2007 (Cth) s 21 (1).
[136] Edith Brown Weiss, ‘Intergenerational Equity and Rights of Future Generations’ (1990), 603 <www.bibliojuridica.org/libros/5/2043/32.pdf>.
[137] Ibid.
[138] General Comment No. 15, UNCESCR, 29th sess [7], E/C.12/2002/11 (2002). However, it must be noted that the CESCR did make reference to the needs of ‘subsistence’ farmers, rather than the water needs of farmers in general.
[139] Water Act 2007 (Cth) s 86A(1)(a).
[140] Ibid s 86A(2)(a).
[141] Ibid s 86A(2)(b).
[142] The author is indebted to a comment provided by an anonymous reviewer on an earlier draft.
[143] Alex Gardner, Richard Bartlett and Janice Gray, Water Resources Law (LexisNexis Butterworths, 2009), 629.
[144] Murray-Darling Basin Authority, Guide to the Basin Plan (2010) <http://thebasinplan.mdba.gov.au/guide/guide.php?document=the-murray-darling-basin & chapter=context-for-decisions> [3].
[145] Mary Goode, Murray-Darling Plan Wins No Friends (28 November 2011) ABC News <http://www.abc.net.au/rural/news/content/201111/s3377619.htm> . The proposed Basin Plan can be accessed at Murray-Darling Basin Authority, PROPOSED Basin Plan (2011) <http://download.mdba.gov.au/proposed/proposed_basin_plan.pdf> .
[146] Leigh Dayton, ‘CSIRO Slams Authority’s Target’, The Australian (online) 29 November 2011 <http://www.theaustralian.com.au/in-depth/murray-darling-crisis/csiro-slams-authoritys-target/story-e6frg6px-1226208565202> .
[147] Australian Broadcasting Corporation, Gillard Budgets for Murray-Darling Buy-backs (10 August 2010) ABC News <http://www.abc.net.au/news/stories/2010/08/10/2978343.htm> .
[148] Ibid.
[149] Lauren Wilson and Mark Schliebs, ‘“Huge cost” in Returning Water to Murray-Darling River System’ The Australian (online), 8 October 2010, <http://www.theaustralian.com.au/national-affairs/huge-cost-in-returning-water-to-murray-darling-river-system/story-fn59niix-1225935703130> .
[150] National Water Commission, The Coal Seam Gas and Water Challenge: National Water Commission Position (2011), <http://www.nwc.gov.au/www/html/2959-coal-seam-gas.asp?intSiteID=1> .
[151] Ibid.
[152] Australian Broadcasting Corporation and Australian Associated Press, Thousands Rally Against CSG Mining (16 October 2010), 702 ABC Sydney, <http://www.abc.net.au/news/2011-10-16/csg-protests-around-the-nation/3573792/?site=sydney> .
[153] Bronwyn Herbert, Farmers, Miners Competing for Water (4 October 2011), ABC News <http://www.abc.net.au/news/2011-10-04/am-farmers-blueprint/3207752> .
[154] The recent Senate inquiry into the impacts of the CSG industry on the MDB recommended a ‘thorough review of the appropriateness of “adaptive management” in regulating the coal seam gas industry’, in order to determine whether the current regulatory approach is ‘consistent with the precautionary principle.’ (emphasis added): Senate Standing Committee on Rural Affairs & Transport, Parliament of Australia, Interim Report: The Impact of Mining Coal Seam Gas on the Management of the Murray Darling Basin (2011) 13 <http://www.aph.gov.au/senate/committee/rat_ctte/mdb/interim_report/report.pdf> .
[155] Australian Greens, Stop Passing the Buck on Coal Seam Gas (2 November 2011) <http://greens.org.au/content/stop-passing-buck-coal-seam-gas> .
[156] Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum and Water Resources) Bill 2011 (Cth) s 24D(1). In the Senate Inquiry (above n 154, viii), the Senate Standing Committee recommended that ‘the Commonwealth take the necessary steps to amend the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) to include the sustainable use of the Great Artesian Basin as a matter of national environmental significance.’
[157] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3(1)(e).
[158] Santos GLNG, The Santos GLNG Water Portal (2011) <http://www.santoswaterportal.com.au/> .
[159] General Comment No. 15, UNCESCR, 29th sess [48], E/C.12/2002/11 (2002).
[160] Wilderness Society (Newcastle) Inc, ‘New Data: Treated Coal Seam Gas Water Threat to Rivers’ (Media Release, 8 December 2011) <http://www.wilderness.org.au/regions/new-south-wales/new-data-treated-coal-seam-gas-water-threat-to-rivers> .
[161] However, it must be noted that the National Human Rights Consultation Committee (above n 89) did not support the creation of an independent cause of action for breach of economic, social and cultural rights.
[162] Constitution of the Republic of South Africa (1996) s 27(1)(b).
[163] Charter of Human Rights and Responsibilities Act 2006 (Vic).
[164] Magdalena McGuire, South African Constitutional Court Considers the Right to Sufficient Water and a Dignified Life (25 March 2009) Human Rights Law Centre <http://www.hrlrc.org.au/year/2009/city-of-johannesburg-and-others-v-mazibuko-and-others-48908-2009-zasca-20-25-march-2009/> .
[165] Sharyn Broomhead, ‘The Right to Water: South African Court Considers Justiciability of Socio-Economic Rights and the Roles of Courts and Parliaments’ (2009) 44 Human Rights Law Resource Centre Bulletin <http://www.hrlrc.org.au/content/publications-resources/hrlrc-e-bulletin/hrlrc-bulletin-vol-44-december-2009/#comparative%20case%20notes> .
[166] John Tobin, ‘Economic, Social and Cultural Rights and the Charter of Human Rights and Responsibilities – A Framework for Discussion’ (Victorian Equal Opportunity and Human Rights Commission Report, 2010) <http://www.humanrightscommission.vic.gov.au> . It should also be noted that in a recent review of the Charter by the Victorian Scrutiny of Acts and Regulations Committee (‘SARC’), SARC did not support the Law Institute of Victoria’s submission to include social and economic rights in the Charter: Law Institute of Victoria, ‘Lawyers disappointed at Charter Wind Back Proposals by Parliamentary Committee' (Media Release, 14 September 2011) <http://www.liv.asn.au> . SARC’s Charter Review Final Report can be accessed at Parliament of Victoria, Charter Review Report (2011) <http://www.parliament.vic.gov.au/sarc/article/1446> .
[167] Ibid.
[168] Ibid.
[169] Rebecca Young, ‘Justiciable Socio-Economic Rights? South African Insights into Australia's Debate’ [2008] AUIntLawJl 9; (2008) 15 Australian International Law Journal 181, 194.
[170] Ibid.
[171] Ibid 205.
[172] Ibid 200. Young explains that this ‘reasonableness standard’ has been applied in Government of the Republic of South Africa v Grootboom (2001) (1) SA 765 (CC) and Minister for Health v Treatment Action Campaign [2002] ZACC 15; (2002) (5) SA 721 (CC).
[173] In the National Human Rights Consultation Report, the National Human Rights Consultation Committee (above n 89) stated that it considered that it would not be ‘prudent to impose this role on Australian federal courts’. The Committee cited strong judicial opinion against such a role, on the grounds that it is not appropriate for judges in Australia to ‘opine on whether the government has dedicated enough resources to achieving particular economic and social rights.’
[174] Sean Flynn and Danwood Mzikenge Chirwa, ‘The Constitutional Implications of Commercializing Water in South Africa’ in David A. McDonald and Greg Ruiters (eds), The Age of Commodity: Water Privatization in Southern Africa (2005) 59, 63.
[175] Ibid 72.
[176] As explained by the National Human Rights Consultation Committee (above n 89), ‘[u]nder the dialogue model, as applied in the United Kingdom, the ACT and Victoria, courts can make a declaration that the legislation is inconsistent with human rights, but that declaration has no effect on the operation or validity of the legislation.’
[177] The Hon Jim McGinty, ‘A Human Rights Act for Australia’ [2010] UNDAULawRw 2; (2010) 12 University of Notre Dame Australia Law Review 1, 18.
[178] Ibid 23.
[179] Australian Network of Environmental Defender’s Offices, above n 69.
[180] See for example: M.C. Mehta v Union of India (2004) 3 S.C.R. 128 where the Supreme Court of India held that pollution of a water source violated the constitutional right to life which ‘includes the right to enjoyment of pollution-free water and air for full enjoyment of life’.
[181] This proposal was recommended by the National Human Rights Consultation Committee, above n 89.
[182] For the complete list of potential breaches identified by the UN CESCR, see: General Comment No. 15, UNCESCR, 29th sess [44], E/C.12/2002/11 (2002).
[183] According to McDonald and Ruiters, ‘commodification’ can be defined as ‘any act, practice or policy that promotes or treats a good or service as an article of commerce to be bought, sold, or traded through market transactions’: David A. McDonald and Greg Ruiters, ‘Theorizing Water Privatization in Southern Africa’ in David A. McDonald and Greg Ruiters (eds), The Age of Commodity: Water Privatization in Southern Africa (Earthscan, 2005) 13, 20.
[184] Although it must be noted that the majority of the world’s water service systems remain under public control.
[185] Kate Stoeckel et al, Australian Water Law (Lawbook, 2011) 297. As noted by Jennifer McKay, although some examples of water privatisation exist in Australia, the main trend is towards corporatisation of water authorities (with the majority having the state government as ‘the only shareholder’): Jennifer McKay, ‘Water Institutional Reforms in Australia’ (2005) 7 Water Policy 35, 43-44.
[186] Ibid 222.
[187] Australian Government, National Water Market (2010) <http://www.nationalwatermarket.gov.au/> . It is important to acknowledge that there is ‘not one national market’: Alex Gardner, Richard Bartlett and Janice Gray, Water Resources Law (LexisNexis Butterworths, 2009) 566. However, for the purposes of this discussion the various markets that make up the Australian water market will be referred to by the umbrella term ‘Australian water market’.
[188] Causeway Asset Management, Australian Water Market (2010) <http://www.causewayam.com.au/water/> .
[189] Australian Government, National Water Market (2011) <http://www.nationalwatermarket.gov.au/> .
[190] Gardner, Bartlett and Gray, above n 187, 621.
[191] Ibid.
[192] National Water Commission, ‘The Impacts of Water Trading in the Southern Murray-Darling Basin: Executive Summary’ (Report, National Water Commission, 2010), 1 <http://www.nwc.gov.au> .
[193] Ibid 93.
[194] Ibid 96.
[195] Ibid.
[196] General Comment No. 15, UNCESCR, 29th sess [11], E/C.12/2002/11 (2002).
[197] See generally Williams, above n 34.
[198] In 2011, the National Water Commission released a report reviewing Australian water pricing reform which found ‘strong evidence of benefits from the pricing and institutional reform’ including ‘reductions in residential water consumption’: National Water Commission, ‘Review of Pricing Reform in the Australian Water Sector’ (Report, 2011) <http://www.nwc.gov.au> .
[199] As noted by the National Human Rights Consultation Committee (above n 89), ‘the states and territories remain the main providers of services that guarantee protection of the principle economic and social rights.’ For this reason, it is important that the right to water is recognised at both the Commonwealth and state/territory levels.
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