31 October 2023
Phoebe Wynn-Pope, Head of Responsible Business and ESG
Joshua Aird, Senior Associate, Responsible Business and ESG and Commercial Litigation
Phoebe: Welcome to another edition of Essential ESG coming to you today from the Lands of the Gadigal People of the Eora Nation. I am Phoebe Wynn-Pope, Head of Responsible Business and ESG at Corrs and today I am talking to Joshua Aird, Senior Associate in our Responsible Business practice on the relevance of statutory charters of rights for business. Josh welcome back to the podcast.
Josh: Thanks Phoebe it’s good to be back.
Phoebe: Australia is currently the only OECD country without a national charter or bill of rights, but there have been a few recent developments that bring into question about whether that might be about to change. In August this year at the Australian Labor Party (ALP) National Conference the ALP committed to considering a statutory charter of human rights for Australia which follows the Human Rights Commission’s position paper which was released earlier this year. In March the Parliamentary Joint Committee on Human Rights began its inquiry into Australia’s human rights framework and that included whether the current Commonwealth framework is fit for purpose or whether it could be strengthened by the introduction of a Human Rights Charter. These developments all follow the enactment of statutory charters or rights in the ACT in 2004, in Victoria in 2006 and in Queensland in 2019. The likelihood of human rights protection being enhanced through statutory charters of rights in the remaining states and territories and also federally is increasing and these statutory charters of rights don’t just impact public entities but they’re increasingly relevant to how business is being conducted in Australia and Josh I wonder whether you can talk to us a little bit about Australian statutory charters of rights work.
Josh: Yes not a problem Phoebe. So in Australia similar to the charters in New Zealand, the UK and Canada – they follow what’s known as the New Commonwealth Model of Rights Charters and there are four central features to these new Commonwealth model charters. The first is that there is a codified charter of rights and that’s distinct from piecemeal rights protection which we see currently at the federal level. The second is that there is generally rights review of new legislation prior to its enactment. So this is both at the executive level, so generally ministers or others proposing a piece of legislation will be required to assist the compatibility of that legislation, but it’s also through a review by parliamentary committees. The third central feature is some form of judicial review of the legislation and administrative decisions for compatibility with rights and this generally takes the form of the courts applying rights-consistent interpretations to legislation where possible and having the power to invalidate administrative decisions that are not compatible with rights. The fourth feature is that ultimately Parliament has the say on the enforceability of statutes. So this could be contrasted with the United States for example where the Supreme Court can strike down laws which infringe on protected rights in the constitution. So Australian courts wouldn’t be able to do that.
Phoebe: So when you talk about the piecemeal protection at the federal level, that first codified charter of rights being distinct from that piece, what do you mean by that, can you explain to us a little bit what that actually looks like?
Josh: Yes of course. At the moment we have few rights which are protected in Australia’s constitution. For example, the freedom of political communication, but we also have various legislation which protects rights, predominantly non-discrimination rights, in legislation in Australia. For example the right not to be discriminated against on the basis of race is included in legislation but all of the rights in Australia aren’t in one central document.
Phoebe: Right so that’s like the patchwork if you like of occupational health and safety regulation and a lot of those rights are found in those workplace laws?
Josh: That’s right.
Phoebe: When we’re thinking about then, the impact of a charter of rights on business, what does that look like? If the charter of rights is really around regulating government, how does it impact on business.
Josh: Australia has a relatively highly regulated economy and businesses often rely on administrative decisions of government. Whether that be through the grant of statutory licences, project approvals, permits, and in some cases tenure. The introduction of a statutory charter of rights means that when those licences, approvals or permits are being granted, the decision maker must give proper consideration to the impact on human rights and also that decision must be compatible with rights.
Phoebe: What does that mean – giving proper consideration to human rights? What does that mean the decision-maker has to do?
Josh: It can really be broken into three components. The first is identifying which rights are affected by the decision. The second is identifying and seriously considering the impact of their decision on those rights and ultimately balancing the countervailing interests of rights, impacts and the other benefits of the decision. This requires that the decision-maker is fully informed of the rights and the benefits of a particular decision. If they’re not, it could mean that proper consideration is not given to those rights which may give rise to a challenge of that decision. At the end of the day, the determination of whether or not a decision is compatible with rights would generally result in a balancing exercise and a decision of whether or not the benefits are proportionate to and justify the potential limitations or impacts on rights.
Phoebe: If a decision then is incompatible rights or the decision-making process didn’t adequately consider the rights that were going to be impacted, what does that mean?
Josh: A decision may be susceptible to being invalidated through a challenge in the courts and the Australian charters have what is known as a ‘piggy-back clause’ which means that in order to bring a claim for a breach of human rights, the claimant must have an otherwise valid cause of action, so while a human rights act, in and of itself may not increase litigation, we do expect that an increased number of cases will contain human rights causes of action, particularly given the broader standing that’s often afforded to individuals and groups in human rights cases.
Phoebe: Let me make sure that I’m understanding this correctly. If I have a human rights complaint about a decision that’s made, I cannot make that complaint on its own, but I need to have another cause of action to add my human rights complaint to?
Josh: Yes that’s right. You cannot just sue on the basis of a breach of human rights. There must be another claim that you attach the human rights claim to. Generally, we see these as judicial review claims where human rights are then tacked on to those applications.
Phoebe: Have we been seen this happen? Is this just a theory at this stage or are we already seeing some challenges?
Josh: No we have already seen a steady increase of challenges to decisions of government in the states and territories which have these charters of rights. The energy and resources sector has been significantly impacted by the Queensland Human Rights Act. The Land Court in Queensland recommended that the grant of an environmental authority to Waratah Coal not be approved partly on the basis that a new coal mine would be incompatible with rights and that case really highlighted the Land Court’s obligation to consider compatibility with human rights and its recommendations that it makes to the minister.
Phoebe: And that includes its recommendations on mining leases and environmental authorities right?
Josh: That’s right. It’s not just prior to licences and environmental authorities being approved that we’re seeing challenges being mounted. The environmental defender’s office or EDO has recently launched the challenge to Blue Energy’s gas field and that’s on the basis that the licence which has already been granted may contribute to worsening climate change and Blue Energy infringes on a number of rights that are protected by the Human Rights Act including the right to life and the right to culture.
Phoebe: We’re seeing a lot of those links between climate change, people pursuing climate change objectives through the use of human rights which you can listen to in some of our other podcasts. Are we seeing challenges only to mining projects or are there challenges to other kinds of developments on human rights grounds?
Josh: That’s a good question. We’re also seeing challenges to proposed property developments on human rights grounds. There have been a number of examples in Victoria where third parties have included compliance with the Victorian charter of human rights and responsibilities in their grounds for opposing particular property developments. There are two interesting aspects of the decisions which have come out of Victoria. The first is that there was a confirmation that individual planning permits and decisions made by local government must be compatible with human rights and this compatibility must be assessed on a case-by-case basis and while the cases have indicated that a development which is consistent with the relevant planning scheme would also likely be consistent with human rights – there have been instances where the particular human rights impacts have been found to be a matter for more detailed consideration as part of the merits for hearing the relevant permit application. This is really a confirmation of the role that human rights play in individual permit decisions and ultimately increases pressure on business to ensure that they not only understand but take steps to mitigate the potential negative impacts on human rights. The second interesting aspect of these cases has been the acceptance by the courts that the decisions of governments relating to large infrastructure projects can also be subject to a valid claim, the breach of human rights but particularly where those rights relate to cultural heritage. For example, it may be as a consequence of a road project or a transmission line or other infrastructure projects which impact land and traditional land use rights.
Phoebe: This all sounds like it’s making the planning and the permit process more difficult for business – what do businesses need to do to prepare and make sure that their operations are able to proceed in the way that they are planning.
Josh: It really highlights the need to develop strong human rights due diligence frameworks and include human rights impacts assessments and business’ risk assessments, environmental assessments and in the development of business activities that require these administrative approvals. In relation to projects, it is important that businesses engage with impacted rights holders early on in the process to identify and address any concerns and rights impacts that may arise. It’s also important that project impacts are minimised by ensuring early consideration of human rights including free, prior and informed consent which we have previously discussed and ultimately, businesses should seek to mitigate the impacts on rights to ensure that any impacts which do arise can be balanced with the benefits of a project and are proportionate. In the past human rights risks and impacts have generally been considered as non-financial risks to a business, but ultimately there’s really little question now, that many human rights risks ultimately also present material risks to business, both with commercial and financial implications.
Phoebe: I think that you’ve given us such a great overview of the statutory charters, of how they operate and how they’re impacting businesses, particularly in their planning processes and what looks like. If there’s a move to a Commonwealth charter we could image that similar claims would be likely to be brought where Commonwealth decision-makers are involved which will increase and keep that complexity going and it’s pretty clear from this and from a whole range of other human rights developments that we’ve being covering on the podcast, that businesses really need to get on top of the human rights impacts of their operations, their supply chains and be really thinking about their human rights due diligence.
Josh: Absolutely Phoebe.
Phoebe: Thanks a lot Josh. Thanks for coming on the show. It’s always great to have you and we’ll look forward to talking to you again soon.
Josh: Thanks Phoebe.