Children's Access to Justice for Environmental Rights | Australia

This report looks at whether the laws and policies in Australia make it possible for children to access their environmental rights.

In Australia, there are no express protections of environmental rights under federal, state or territory constitutions. However, the High Court of Australia has held that the federal government has a broad power to make laws protecting the environment under the Australian Constitution. 

Intergenerational equity is an express objective of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the key federal environmental protection legislation, as well as of the state and territories’ legislation. Australian courts have primarily applied the concept of intergenerational equity in the context of environmental law in circumstances involving judicial review of development consents granted and environmental assessments performed under environmental protection laws (e.g. Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors). There are also a number of cases that have applied this principle in assessing greenhouse gas emissions and climate change in the environmental impact assessments of coal mines (e.g. Gray v Minister for Planning). 

There are a large number of legislative instruments (statutes, regulations and policies) enacted by all levels of government (federal, state and territory, and local) and various agencies in Australia that regulate environmental protection in accordance with those laws. The Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023, which is currently before Parliament for consideration, proposes introducing a duty for decision-makers to consider the health and wellbeing of children when making certain decisions under federal legislation including the EPBC Act.

In Australia, children need a litigation representative in order to bring a case to court. Legal aid is no longer available for public interest environmental cases, which may pose an obstacle for children who want to bring their complaints to courts on this matter. The report identifies particular challenges to exercising the rights of freedom of assembly and association, such as changes to laws that restrict peaceful protests and the use of unnecessary force by police against peaceful protesters. 

This report was published in December 2023 and developed with the support of Frances Bradshaw and Isobel Brinin from Environmental Defenders Office (EDO), as well as finalised based on any feedback from the State. To learn more read the full report below, and please get in touch if this information was useful and you want to talk more.