Australia

CRIN would like to express our profound gratitude to our external reviewers, Frances Bradshaw and Isobel Brinin from Environmental Defenders Office (EDO), for their insightful comments on a draft of this report. CRIN also sent a draft version to the State for feedback and any comments received were taken into account in finalising the report. Any errors or inaccuracies remaining in the report are CRIN’s.

This report is provided for educational and informational purposes only and should not be construed as legal advice. CRIN does not accept liability for any loss, damage, cost or expense incurred or arising by reason of any person using or relying on information in this report. CRIN encourages personal and educational use of this publication and grants permission for its reproduction in this capacity where proper credit is given in good faith.

All CRIN content is licensed under a Creative Commons Attribution Non Commercial No Derivatives 4.0 licence. No material produced by CRIN may be modified unless consent is given in writing. No material produced by CRIN may be re-used for commercial gain unless consent is given in writing.

I. National legal protections

A. Are environmental rights protected within the national constitution?

The Australian Constitution and the constitutions of each Australian state¹ and territory² do not expressly protect environmental rights. However, the High Court of Australia has held that the federal parliament has considerable breadth to enact environmental protection laws under its powers in the Constitution over other matters, such as external affairs, corporations and taxation.³ Each state and territory’s constitution also provides broad powers to state and territory parliaments to enact laws, including environmental protection laws. None of these laws specifically apply to children.

See Part I.D below for a discussion on relevant federal and state legislation.

B. Have constitutional rights protections been applied by national courts with regards to environmental issues?

As set out above in Part I.A, 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.⁴ The federal government also has the power to ratify international treaty obligations.

See Part I.D below for a discussion on relevant federal and state environment protection legislation.

C. Has the concept of intergenerational equity been applied within national courts? If yes, in what circumstances?

The concept of intergenerational equity – “that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations” – is defined as a principle of ecologically sustainable development in, and is an express objective of, the key federal environmental protection legislation.⁵ Similarly, state and territory environmental protection legislation has ecologically sustainable development and/or intergenerational equity within its objectives.⁶ The concept of intergenerational equity in the context of environmental law has been primarily applied by Australian courts in circumstances involving judicial review of development consents granted and environmental assessments performed under environmental protection laws.

In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors, a recent seminal case, First Nations-led organisation Youth Verdict, together with The Bimblebox Alliance, opposed two applications by Waratah Coal (one application for environmental authority and one for a mining lease) on the basis that their human rights protected under the Human Rights Act 2019 (QLD) would be impacted.⁷ The Land Court of Queensland considered the concept of intergenerational equity:⁸

"The intergenerational aspect of climate change risks makes the rights of children paramount. The year 2100 is the reference point for the Paris Agreement long-term temperature goal. My generation of decision makers will be long gone, but a child born this year will be 78 years old in 2100. The principle of intergenerational equity places responsibility with today’s decision makers to make wise choices for future generations. The children of today and of the future will bear both the more extreme effects of climate change and the burden of adaptation and mitigation in the second half of this century. Their best interests are not served by actions that narrow the options for achieving the Paris Agreement temperature goal. This weighs the balance against approving the applications."

The Queensland Land Court ultimately concluded that the limitations to human rights imposed by the mine were unjustifiable.⁹

In Hub Action Group v Minister for Planning, the Land and Environment Court of New South Wales refused to grant consent for the development of a waste disposal facility which was located on prime agricultural land.¹⁰ One of the reasons that underpinned the Court’s decision was the principle of intergenerational equity. It stated that:¹¹

"The principle of intergenerational equity involves the right of the present generation to use and enjoy the resources of the earth but without compromising the ability of future generations to do likewise... This obligation of intergenerational equity would be breached by the carrying out of development which has an adverse effect on the long-term use, for sustainable agricultural production, of prime crop and pasture land."

In Taralga Landscape Guardians v Minister for Planning¹², the Land and Environment Court of New South Wales in its decision to uphold the approval of a large wind farm (with conditions), held that the attainment of intergenerational equity in the production of energy involves at least two requirements: (1) the sustainable exploitation and use of non-renewable resources and the environment in which the exploitation takes place; and (2) the substitution of energy sources that result in less greenhouse gas emissions.¹³

There are also a number of cases that have applied the principle of intergenerational equity in assessing greenhouse gas emissions and climate change in the environmental impact assessments of coal mines.¹⁴ One of the earliest cases was Gray v Minister for Planning¹⁵ in 2006, where the Land and Environment Court of New South Wales held that the Minister’s decision to consider greenhouse gas emissions from the mining of coal (i.e. scope 1 and 2 emissions) but not the burning of coal (i.e. scope 3 emissions) in the environmental assessment of a proposed open cut coal mine involved a failure to take into account the principle of intergenerational equity.¹⁶ In the case of Gloucester Resources Ltd v Minister for Planning¹⁷, the Land and Environment Court of New South Wales held that a consent authority must consider the principle of intergenerational equity, which requires consideration of the impact of a development on climate change.¹⁸ Most recently, in Sharma v Minister for the Environment¹⁹, the Federal Court ruled that the Minister for the Environment bears a duty to Australian children to exercise reasonable care in deciding whether to approve a coal mining project on the basis that the project's greenhouse gas emissions are likely to contribute to climate change and to the personal harm it will cause to future generations. This decision was overruled on appeal to the Full Federal Court, which found that the Minister does not owe children such a duty.²⁰

D. What legislation is in place to regulate environmental protection? Are there any proposals for legal reforms currently under review in the national legislature?

Australia is a federation of six states and two self-governing territories, each of which has its own constitutions, parliaments, governments and laws. 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 that regulate environmental protection in accordance with those laws. The following summarises the current scope and proposed reforms of the key federal environment legislation and lists some of the key environment legislation for each state and territory.

Key Federal Legislation

At a federal level, the key environmental protection legislation is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).²¹ The EPBC Act is focused on the protection of nine ‘matters of national environmental significance’ namely:

i. world heritage properties;
ii. national heritage places;
iii. wetlands of international importance;
iv. listed threatened species and ecological communities;
v. listed migratory species;
vi. Commonwealth marine areas;
vii. the Great Barrier Reef Marine Park;
viii. nuclear actions (such as uranium mines); and
ix. water resources in relation to large coal mining and coal seam gas developments.

Developments that are likely to have a significant impact on these matters of national environmental significance and actions involving the Commonwealth and on Commonwealth land that have a significant impact on the environment may be subject to environmental assessment and approval from the Commonwealth Environment Minister under the EPBC Act. Projects that need approval under the EPBC Act usually also need approval under state or territory laws.

There is a statutory requirement to review the EPBC Act every 10 years.²² The second review of the EPBC Act commenced on 29 October 2019 and has now been completed.²³ The independent review report²⁴, delivered in October 2020, concluded, among others, that the Act does not clearly describe the outcomes it is intended to achieve and that the Australian environment has suffered as a result. The independent reviewer found that the Act is complex and cumbersome and leads to duplication with state and territory development approval processes. The report also underlined the need for new legally enforceable National Environmental Standards. Finally, the report called for reform to ensure that Indigenous Australians are heard in decision-making and in the development of policy and legislation, and to ensure access to best available data and accessible information for the community and decision-makers. Following this independent review, in December 2022, the government committed to reform environmental laws.²⁵

The National Environment Protection Council Act 1994 (Cth) is another federal environment protection legislation establishing the National Environment Protection Council (NEPC). The NEPC has two main functions: to set national environmental protection measures, which each state or territory implements through regulations and policies, and to assess and report on the implementation and effectiveness of National Environmental Protection Measures (NEPMs) in each territory or jurisdiction.²⁶ The object of this legislation is to ensure people enjoy the benefit of equivalent protection from air, water or soil pollution and from noise, wherever they live in Australia.²⁷

The right to a healthy environment is not protected under any federal law, or in any state/territory human rights law.²⁸ However, the ACT government has recently committed to enshrining the right in its Human Rights Act 2004.²⁹

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. This legislation proposes to amend the Climate Change Act 2022 (Cth) which legislates Australia's emissions reduction target.³⁰

State and Territory Primary Environmental Legislation

Some primary environmental legislation and proposals for legal reform for each state and territory are:

• Australian Capital Territory (ACT): Environmental Protection Act 1997 (ACT), Water Resources Act 2007 (ACT), Nature Conservation Act 2014 (ACT), Climate Change and Greenhouse Gas Reduction Act 2010 (ACT), and NEPMs (in relation to air quality, waste, contamination and pollutants) and Environment Protection Policies (on air pollution, contaminated sites, hazardous materials, noise, water and environment in general).³¹ The ACT has also entered several bilateral agreements with the federal government to use its own processes to assess actions under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC ACT).³² The ACT government has recently committed to enshrining the right to a healthy environment in its Human Rights Act 2004.³³

• Northern Territory: Waste Management and Pollution Control Act 1998 (NT)³⁴, Environment Protection Act 2019 (NT) (which repeals the Environmental Assessment Act 1982 (NT))³⁵, Environment Protection Regulations 2020 (NT), Environment Protection (National Pollutant Inventory) Objective 2004 (NT), Environment Protection (Beverage Containers and Plastic Bags) Act 2011 (NT), Environment Protection (Beverage Containers and Plastic Bags) Regulations 2011 (NT), Environment Protection Authority Act 2012 (NT), Waste Management and Pollution Control (Administration) Regulations 1998 (NT). In 2021, the NT government announced that it would introduce "chain of responsibility" laws to ensure that even if an entity, including oil and mining companies, responsible for environmental damage were to become financially insolvent, someone other than the taxpayer (e.g. a parent company or director) would be held accountable.³⁶ However, the government's draft bill showed that the proposed laws would only apply to oil companies, excluding mining companies.³⁷ This is especially detrimental to Aboriginal Peoples, who have historically suffered the most from the polluting effects of the mining industry.³⁸

• New South Wales: Environmental Planning and Assessment Act 1979 (NSW)³⁹, Protection of the Environment Operations Act 1997 (NSW)⁴⁰, Protection of the Environment Administration Act 1991 (NSW)⁴¹, Biodiversity Conservation Act 2016 (NSW)⁴², National Parks and Wildlife Act 1974 (NSW)⁴³, Local Land Services Act 2013 (NSW)⁴⁴ and the Contaminated Land Management Act 1997 (NSW)⁴⁵. There are also assorted natural resources management legislation including the Mining Act 1992 (NSW)⁴⁶, Petroleum (Onshore) Act 1991 (NSW)⁴⁷, Petroleum (Offshore) Act 1982 (NSW)⁴⁸, Water Act 1912 (NSW)⁴⁹, Water Management Act 2000 (NSW)⁵⁰, and the Forestry Act 2012 (NSW).⁵¹

• Queensland: Environmental Protection Act 1994 (Qld)⁵², Environmental Protection Regulation 2019 (Qld)⁵³, Nature Conservation Act 1992 (Qld)⁵⁴, Vegetation Management Act 1999 (Qld)⁵⁵, Coastal Protection and Management Act 1995 (Qld)⁵⁶, Water Act 2000 (Qld)⁵⁷, Waste Reduction and Recycling Act 2011 (Qld)⁵⁸, Environmental Offsets Act 2014 (Qld)⁵⁹, and Environment Protection Policies (in relation to air quality, noise and water and wetland biodiversity). Queensland has also entered an agreement with the federal government to use its own processes to assess actions under the EPBC Act.

• South Australia: Environment Protection Act 1993 (SA)⁶⁰, Aquaculture Act 2001 (SA)⁶¹ and Wingfield Waste Depot Closure Act 1999 (SA)⁶².

• Tasmania: Environmental Management and Pollution Control Act 1994 (Tas) is the primary environmental protection and pollution control legislation in Tasmania. It is due to be amended by the draft Environmental Management and Pollution Control Amendment Bill 2022⁶³, which passed in November 2022. Other relevant legislation includes the Climate Change (State Action) Act 2008 (Tas)⁶⁴, Threatened Species Protection Act 1995 (Tas)⁶⁵, Nature Conservation Act 2002 (Tas)⁶⁶, National Parks And Reserves Management Act 2002 (Tas)⁶⁷ and Litter Act 2007 (Tas)⁶⁸. Tasmania also has natural resources management legislation including the Mineral Resources Development Act 1995 (Tas)⁶⁹, Water Management Act 1999 (Tas)⁷⁰, Living Marine Resources Management Act 1995 (Tas)⁷¹, Marine Farming Planning Act 1995 (Tas)⁷², Marine-Related Incidents (MARPOL Implementation) Act 2020 (Tas)⁷³ and Waste And Resource Recovery Act 2022 (Tas)⁷⁴.

• Victoria: Environment Protection Act 2017 (Vic)⁷⁵, amended by the Environment Protection Amendment Act 2018 (Vic), Pollution of Waters by Oils and Noxious Substances Act 1986 (Vic)⁷⁶, National Environment Protection Council (Victoria) Act 1995,⁷⁷ and Planning and Environment Act 1987 (Vic).⁷⁸

• Western Australia: Biodiversity Conservation Act 2016 (WA)⁷⁹, Conservation and Land Management Act 1984 (WA)⁸⁰, Environmental Protection Act 1986 (WA)⁸¹, Carbon Rights Act 2003 (WA)⁸², Contaminated Sites Act 2003 (WA)⁸³, Environmental Protection (Landfill) Levy Act 1998 (WA)⁸⁴, Litter Act 1979 (WA)⁸⁵, Rights in Water and Irrigation Act 1914 (WA)⁸⁶, and the Waste Avoidance and Resource Recovery Act 2007 (WA)⁸⁷.

E. Is there any specific national policy addressing childhood exposure to toxic substances? If so, what is considered a safe level of exposure and what is the process for determining safe levels of exposure?

A national policy specifically addressing childhood exposure to toxic substances could not be found. Exposure to toxic substances is regulated through numerous federal and state and territory legislative instruments and policy. There are a number of schemes that regulate chemicals in Australia: the Standard for the Uniform Scheduling of Medicines and Poisons or Poisons Standard (a record of decisions about the classification of medicines and chemicals used in consumer products), the Therapeutic Goods Administration (regulates medicines and products marketed as having therapeutic effects), the Australian Pesticides and Veterinary Medicines Authority (regulates agricultural and veterinary chemicals, such as pesticides and insect repellents), Food Standards Australia and New Zealand (regulates foods and food additives for human consumption), the Department of Climate Change, Energy, the Environment and Water (designs and implements policies and programs to address climate change, energy, and protect and conserve the environment and heritage), Safe Work Australia (develops policies on national workplace health and safety), the National Transport Commission (sets out the requirements for transporting dangerous goods), the Australian Border Force (controls the import and export of certain goods, including toxic organic pollutants, hazardous chemicals and products such as asbestos), the Australian Competition and Consumer Commission (plays a role in helping protect consumers from chemical hazards in the home) and Australian National Security (monitors chemicals that may be used for unlawful activities).⁸⁸

The NEPC creates NEPMs, which address exposure levels to toxic substances. For example, schedule B7 of the National Environment Protection (Assessment of Site Contamination) Measure 2011 (Cth) identifies guidelines on the derivation of-health-based investigation levels.⁸⁹ These guidelines include the exposure standards for soil contamination to all people. However, it identifies children in daycare centres, kindergartens, pre-schools and primary schools as particularly sensitive to soil contamination. Another example is the National Environment Protection (Ambient Air Quality) Measure, which establishes standards for exposure to pollutants (such as carbon monoxide and particles PM10 and PM2.5), and standards for pollutant monitoring. However, from this review, it appears the standards for exposure are not consistent with the most recent WHO air pollution guidelines.⁹⁰

The Australian Public Health Association released a policy statement in 2020 on environmental lead exposure and called on a nationally coordinated approach to increase research, prevention and management of lead exposure, to which developing children are most at risk.⁹¹ According to the government, the main sources of lead exposure in children in Australia are toys, environmental sources (e.g. lead-based household paints) and exposure prone activities (e.g. mining).⁹²

Under the Industrial Chemicals Act 2019, the Executive Director of the Government's Department of Health and Aged Care has the authority to authorise, restrict or prohibit the introduction or export of industrial chemicals provided in the Stockholm Convention on Persistent Organic Pollutants and Annex III of the Rotterdam Convention.⁹³

Australia has ratified the Basel Convention and the Waigani Convention regulating the import and export of hazardous wastes to protect human health and the environment, which are controlled under the Hazardous Wastes (Regulation of exports and imports) Act 1989.⁹⁴

Australia is also part of the Minamata Convention on Mercury, regulating the import and export of mercury in Australia for industrial use.⁹⁵ The relevant Australian regulatory regime depends on the intended purpose of the mercury or mercury-added products to be imported, exported or manufactured. Specifically:

• Recycling and Waste Reduction Act 2020 (mandatory stewardship provisions):⁹⁶ regulates the import, export or manufacture of mercury-added products for industrial purposes, and the incorporation of mercury-added products into other products for purposes other than therapeutic purposes. The responsible agency is the Department of Climate Change, Energy, the Environment and Water.

• Industrial Chemicals Act 2019⁹⁷: regulates the import or export of mercury for industrial purposes. The responsible agency is the Australian Industrial Chemicals Introduction Scheme, through the Department of Health and Aged Care.

• Therapeutic Goods Regulations 1990⁹⁸: regulate the import or export of mercury, the import, export and manufacture of mercury-added products, and the incorporation of mercury-added products into other products, for therapeutic purposes. The responsible agency is the Therapeutic Goods Administration, through the Department of Health and Aged Care.

• Agricultural and Veterinary Chemicals (Administration) Regulations 1995⁹⁹: regulate the import or export of mercury, and the import, export and manufacture of mercury-added products, for agricultural or veterinary purposes. The responsible agency is the Department of Agriculture, Fisheries and Forestry.

• Customs (Prohibited Export) Regulations 1958 and the Customs (Prohibited Import) Regulations 1956¹⁰⁰: regulate the import and export of mercury in order to ensure appropriate border controls are in place. Permissions are not granted under these Regulations, rather the Regulations recognise the permissions granted under the relevant subject-specific legislation. The responsible agency is the Department of Home Affairs.

F. Is the country equipped with pollutant release and transfer registers?

The National Pollutant Inventory (NPI) tracks pollution across Australia and provides access to information about both emissions and waste transfer of toxic substances.¹⁰¹ The NPI contains data on 93 substances that have been identified as important due to their possible effect on human health and the environment.¹⁰²

The data covers:

• facilities like mines, power stations and factories, where the facility operators report their own emissions and transfers; and
• other sources such as households and transport, and the diffuse emissions are estimated by government agencies.

The substances that are selected for the NPI include descriptions of why they are harmful, which includes consideration of children. For example, the explanation of the risks of lead exposure includes:

“Lead can affect a child's mental and physical growth. Unborn children can be exposed through their mothers. Harmful effects include premature birth, smaller babies, decreased mental ability in the infant, learning difficulties and reduced growth in young children. Some effects may persist beyond childhood.”¹⁰³

For national reporting purposes to the Basel Convention, the Australian government relies on information gathered and provided by the states and territories, which are legally responsible for the wastes produced within their borders.¹⁰⁴

The National Environment Protection (Movement of Controlled Waste between States and Territories) Measure is an agreement between the Australian Government and the states and territories on the regulation of hazardous (controlled) waste movements between Australian states and territories “to minimise the potential for adverse impacts associated with the movement of controlled waste on the environment and human health.”¹⁰⁵

Child-specific factors regarding which data is gathered and the type of data generated are not included as considerations in the national reporting to the Basel Convention, or in the National Environment Protection (Movement of Controlled Waste between States and Territories) Measure.

G. Does the State assert extra-territorial jurisdiction for any environmental issues?

The Commonwealth Parliament (federal jurisdiction) has extraterritorial power.¹⁰⁶ This is utilised under the EPBC Act. For example, the EPBC provisions relating to whales extend to acts, omissions, matters and things outside Australia (whether in a foreign country or not).¹⁰⁷ However, this extraterritorial application only applies to:¹⁰⁸

• Australian citizens;
• Australian permanent residents;
• corporations incorporated in Australia or an external Territory;
• the Commonwealth and Commonwealth agencies;
• Australian aircraft, Australian vessels and members of crews of Australian aircraft and Australian vessels (including persons in charge of aircraft or vessels); and
• boats within the meaning of the Fisheries Management Act 1991 (Cth) (and a declaration that the vessel is taken to be an Australian boat is in force).

The Commonwealth also has extraterritorial power in relation to hazardous waste, under the Hazardous Waste Act¹⁰⁹. For example, the Minister for the Environment can require that hazardous waste is returned to Australia under Ministerial Orders, if¹¹⁰:

• the movement of the waste has not been conducted with the required permits, or
• has the required permits but is not exported in accordance with the permit, or
• has the required permits but does not meet the permit conditions.

These powers also apply if that waste meets the above criteria, and in addition if the waste harms or damages, or is likely to harm or damage, human beings or the environment.

State and territory parliaments also have the power to enact laws having extraterritorial operation provided that there is a connection (even general or remote) with the peace, order and good government of the state or territory.¹¹¹ Some of the environmental legislation for states and territories contains extraterritorial application. For example, in the state of Queensland, the key environmental protection legislation provides that a person commits an offence if:

• (a) the person causes environmental harm within the State by conduct engaged in outside the State; and
• (b) the conduct would constitute the offence against this Act if it were engaged in by the person within the State.¹¹²

II. Accessing courts

A. How can environmental cases be brought before national courts?

There are three avenues under most state and territories’ environmental laws whereby cases may be brought before the courts: (1) administrative law review: where a decision-maker’s decision may be challenged (for example, where a decision-maker has approved the issuance for a licence for a new polluting land use); (2) criminal law: for example, offenders may be prosecuted for breaches of pollution laws; and (3) civil enforcement: where remedial action is required, generally parties must go through this route.

Under the EPBC Act, environmental matters may be brought before the courts through administrative routes (i.e. persons aggrieved may bring an action pursuant to a decision made under the Act or the related regulations). Parties may also apply for injunctions under s 475 of the EPBC Act where a person has engaged or proposes to engage in conduct that contravenes the Act.

Under Commonwealth law, activities that may constitute an environmental crime include actions that have a significant impact on matters of national environmental significance: World Heritage properties, National Heritage places, wetlands of international importance, threatened species and ecological communities, migratory species, Commonwealth marine areas and nuclear actions (including uranium mining), hazardous waste, sea dumping, marine pollution offences and ozone-depleting substances.¹¹³ Crimes can be directly reported to the appropriate Government Department or to Crime Stoppers, a platform which allows citizens to provide anonymous information about criminal activity to the police without being directly involved in the investigation process.¹¹⁴

Environmental cases may also be brought before the courts through constitutional routes. For example, in 1983, a case was brought before the courts in respect of a piece of legislation (the World Heritage Properties and Conservation Act 1983 (Cth) (no longer in force)) that was passed by the Commonwealth of Australia to prevent a dam in Tasmania being built. The State of Tasmania challenged the validity of the Act and also argued that the passing of the Act contravened a number of provisions of the Australian Constitution.¹¹⁵ The case is discussed in greater length below (Part III.B.).

B. What rules of standing apply in environmental cases?

In Australia, there are two main ways a party may establish standing to bring an environmental case before a court, being through: (i) the common law; or (ii) legislation. The common law test for standing in respect of judicial review or civil proceedings can be further divided into two types: (i) where a private right of a person has been interfered with simultaneous with a public right being interfered with; or (ii) where a person has a special interest in the subject matter, but no private right has been interfered with.¹¹⁶ This special interest has to be more than intellectual or emotional but does not need to be proprietary or pecuniary.¹¹⁷ Based on the case law in Australia, there are a number of ways by which an individual or group may establish that they have a special interest in a matter (by active use of the land subject of the litigation, spiritual or cultural relationship to the subject land, adverse impact on the amenity of the plaintiff’s land, protection of statutory participation rights, or because the government decision or conduct challenged is particularly relevant to the plaintiff organisation's objects and activities).¹¹⁸

A group may also establish standing in Australia if they have a legislative right to bring a case before a court. For example, section 487 of the EPBC Act extends the meaning of the term ‘person aggrieved’ in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), the effect of which allows certain individuals and groups to bring an action pursuant to a decision made under, a failure to make a decision under, or conduct engaged in for the purposes of making a decision under the Act or the related regulations.¹¹⁹

Sections 487(2) and 487(3) of the EPBC Act set out the circumstances under which an individual or group may be considered to have standing to bring an action pursuant to a decision made under the EPBC Act.¹²⁰ Under s 487(2), an individual is taken to be a person aggrieved by the decision, failure or conduct if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory and at any time in the 2 years immediately before the decision, failure or conduct, the individual engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment.¹²¹

Under s 487(3) of the EPBC Act, an organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if:¹²²

• (a) the entity is incorporated or otherwise established in Australia or an external Territory;
• (b) at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment; and
• (c) at the time of the decision, failure or conduct, the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.

Section 488 of the EPBC Act provides that a person acting on behalf of an unincorporated organisation that is a person aggrieved for the purposes of the ADJR Act may also apply under that Act for a revision of a decision, failure or conduct.¹²³

This section focuses on environmental cases under federal environmental law (EPBC Act). Different rules of standing may apply in environmental cases brought under state or territory environmental law.

C. Do these rules of standing differ when children are the complainants and if so in what way?

Though the rules of standing do not differ when children are the complainants in respect of environmental cases, children may only commence or carry on proceedings under certain circumstances. A litigation guardian is appointed by the court when a litigant is aged under 18.¹²⁴ The same rule applies generally to the different states and territories in Australia, with a few exceptions provided for by law or determined by the judge.

Anjali Sharma, applicant in Sharma v Minister (see Parts I.C. and III.B.) explained: “All of us who brought the case are under 18 so we needed a “litigation representative” to help bring the case to court. Sister Brigid Arthur, who has experience in helping young people in the court system, generously became involved and the court appointed her to represent us.”¹²⁵

Although the guidance contained therein is not intended to be prescriptive, a book published by the Judicial Commission of New South Wales acknowledges that children and young people face particular difficulties when they come into contact with federal and state legal processes largely due to a mismatch between their capacity and the adult-oriented court environment and processes and identifies some of the difficulties and barriers faced by children and young people before the court, providing guidance on how judicial officers may take account of this information in court.¹²⁶

D. What is the burden and standard of proof for allegations of personal injury as a result of toxic exposure?

This will differ depending on what the cause of action for such an allegation is. In general, for civil cases, an applicant in a personal injury case must prove his or her case on the balance of probabilities.¹²⁷ On the other hand, for criminal cases, the burden of proof lies on the prosecution and the prosecution must prove its case beyond reasonable doubt. Strict liability may also apply to civil and criminal cases.

Cases of personal injury as a result of toxic exposure may also be brought under common law. For example, the applicant may argue that, due to the toxic exposure, the respondent has been negligent or has caused nuisance. For a negligence claim to be founded, there are four key elements that must be established: duty of care, breach of the duty of care, damage and foreseeability of the damage.¹²⁸ The test applied in a common law nuisance case is that of reasonableness, and courts will generally assess liability based on whether the nuisance is intentional or not, whether it arises from natural hazards and whether any damage has occurred.¹²⁹ Trespass to land by pollution is another example of a case that may also be brought under common law.

E. What limitation periods apply in environmental cases?

The applicable limitation period for environmental cases will depend on the cause of action and the jurisdiction that the case is brought in. For administrative review of a decision, the applicable limitation period will usually be determined by relevant judicial review legislation (for judicial review) or the environmental legislation (for merits review). For example, for judicial review of a decision made under the EPBC Act, a person aggrieved by the decision may bring an action within 28 days from the day that the decision – or, if a statement of reasons is requested for the decision, the statement of reasons – is furnished to the person aggrieved (inclusive).¹³⁰ The Judiciary Act also allows judicial review of decisions made by an officer of the Commonwealth and this right of review is not time limited.¹³¹

For tortious claims, the applicable limitation period will be determined by the relevant state or territory limitation period legislation. For example, pursuant to section 5 of the Limitation of Actions Act 1958 (Vic) and section 14 of the Limitation Act 1969 (NSW), a person may bring a general tortious claim within six years from the date on which the cause of action accrued. This includes tortious claims relating to environmental matters. However, an action for damage in respect of personal injuries, which includes disease and any impairment of a person’s physical or mental condition, must be brought within three years from the date on which the cause of action accrued.¹³² These limitation periods are generally consistent across the other Australian jurisdictions.¹³³

In relation to environmental offences which are indictable or serious criminal offences, the limitation period is usually determined by the applicable environmental legislation. For example, in Victoria, the EP Act (Vic) operates within a broader prosecutorial framework as part of the criminal justice system.¹³⁴ Except where otherwise provided by the relevant Act, there is no limitation period for bringing a proceeding for an indictable offence.¹³⁵

F. Is legal aid available in environmental cases? If so, under what circumstances?

Due to legal aid cuts in 2014, legal aid is no longer available for public interest environmental cases.¹³⁶ However, there are still a number of organisations which provide pro bono legal services in respect of environmental cases, such as Environmental Defenders Office¹³⁷ and Environmental Justice Australia.¹³⁸ In addition, in 2022, the federal government undertook to restore funding of $10 million to the Environmental Defenders Office and Environmental Justice Australia, in order to improve access to justice and legal assistance for Australians wanting to uphold environmental laws and protect Australia’s environment and heritage.¹³⁹

Anjali Sharma, applicant in Sharma v Minister (see Parts I.C. and III.B.) explained:

“When we brought the case our lawyers took it on pro-bono. For the appeal, we tried to match the unlimited, tax-payer funded resources of the Minister and have raised thousands of dollars due to the generosity of over 5,000 individuals.”¹⁴⁰

III. Remedies

A. What remedies are courts empowered to impose in environmental cases?

As discussed in Section II.B, environmental cases are commonly brought under the EPBC Act and state and territory primary environmental legislation.¹⁴¹ Courts have broad powers to make orders in response to actions brought under these legislative frameworks, which commonly includes injunctive relief.

For actions under the EPBC Act, courts are empowered to order injunctions for conduct that contravenes the provisions of the EPBC Act.¹⁴² In addition, courts can impose injunctions against conduct deemed to be in contravention of a ‘conservation agreement’.¹⁴³ A conservation agreement is an agreement between the Australian Government Environment Minister and another person for the protection and conservation of biodiversity in an area of land or sea.

It is important to note the distinction between civil and criminal penalties under the EPBC Act. Individuals and body corporates are subject to civil penalties enforced through the courts, but may also be the subject of prosecution for criminal breaches. Criminal penalties for breaches relating to matters of national environmental significance can carry penalties of up to seven years’ imprisonment.¹⁴⁴

It is also important to note that under Part 18 of the EPBC Act, the Minister has the power to make orders remedying environmental damage if they suspect that an action will contravene the EPBC Act¹⁴⁵. In this way, remedies can be sought without recourse to the court system.

Except for New South Wales and Victoria, most states establish a general legislative duty not to cause environmental harm.¹⁴⁶ This is distinct from a breach of an approval or policy that may cause environmental harm. Victoria establishes an environmental duty, but it is framed in slightly different language.¹⁴⁷ The degree of environmental harm caused determines the penalty imposed for the general offence.¹⁴⁸ The Australian Capital Territory, Queensland, Tasmania, and South Australia all acknowledge the different categories of environmental damage in a similar manner, taking into account factors such as impact, loss, and costs, as well as whether the offence is committed with intent or recklessness.¹⁴⁹ On the other hand, in Victoria the intent is considered to a greater extent when determining the seriousness of the harm. In New South Wales, the classification of offences is not based on environmental harm, but rather on (i) illegal acts that require intent or negligence on the part of the offender, (ii) offences that are prosecuted, and (iii) offences that bring in penalty infringement notices and are typically for strict liability offences where there is no environmental damage or risk to human health.¹⁵⁰

Finally, courts have broad powers under the ADJR Act (see Part II.B above) to undertake judicial review of decisions, including decisions by government agencies or officials relating to the environment.¹⁵¹ The powers of federal courts in this respect include making orders¹⁵²:

1. quashing or setting aside the decision;
2. referring the decision to the decision-maker to be remade;
3. declaring the rights of the parties in the matter; and/or
4. directing the parties to do, or refrain from doing, any act or thing.

B. What remedies have courts ordered in environmental cases to date?

Where an application for judicial review of a decision made under the EPBC Act is successful, the courts will usually make an order quashing or setting aside the decision, and directing the decision-maker to remake the decision according to law. Unfortunately, this often results in the decision-maker making the same decision albeit after following a legally correct process. This means that applicants in judicial review cases may not ultimately get the outcome they are seeking.

One of the seminal cases in Australian environmental law was Commonwealth v Tasmania (the “Tasmanian Dam Case”), referred to in Section II.A.¹⁵³ In a 4:3 split decision, the High Court ruled the Commonwealth had a broad power to make laws protecting the environment under the Australian Constitution.¹⁵⁴ The practical effect of the ruling was that the proposed dam could not proceed, giving effect to an injunction that had previously been sought. Another seminal case was the decision of Sharma v Minister for the Environment (see Part I.C.) where the plaintiffs sought both an injunction and a declaration that a duty of care be recognised.¹⁵⁵ The first instance judgment declined to order the injunction, but did make the declaration sought. Unfortunately, this decision was appealed and overturned in the Full Federal Court.¹⁵⁶

Injunctions are a common means by which environmental applicants seek remedies in environmental cases. There have been several cases brought under the EPBC Act seeking injunctions against actions deemed by complainants to be in breach of the environmental principles contained in the Act. A notable example was Booth v Bosworth, in which a conservationist sought an injunction against the use of electric grids to kill flying foxes at a lychee farm in Queensland.¹⁵⁷ In its decision, the Federal Court of Australia granted an injunction restraining the operation of electric grids that had been used for this purpose.

In a case brought under the EPA Act (Vic) in early 2020, a recycling company and its director were prosecuted for discarding industrial waste at an unlicensed site and failing to comply with a clean-up notice. The parties were convicted, fined $6,000 AUD and ordered to clean up the site in question.¹⁵⁸

In a case brought in the Stawell Magistrates Court in 2019, an individual was found guilty of failing to reduce the fire risk posed by a 9500 tonne stockpile of tyres, which was required by a Pollution Abatement Notice. The individual was fined $20,000 AUD with costs but avoided a conviction.¹⁵⁹

C. Are there any administrative authorities empowered to act on environmental complaints and if so, how are they empowered to respond to complaints?

In Australia, the Ombudsperson system is primarily responsible for resolving matters involving individuals making complaints against government departments. The Commonwealth Ombudsperson investigates complaints made against Australian government (federal) agencies, and there is an Ombudsperson in each state and territory for investigations against state government agencies. Whether a Commonwealth or state Ombudsperson should be contacted for complaint resolution will depend on the nature of the complaint and, specifically, the government department or agency overseeing the subject matter of the complaint.

Ombudspersons are empowered to conduct investigations, perform audits and inspections and encourage good administration. A large part of an Ombudsperson’s function is to provide advice to complainants about available avenues of action, but in some cases Ombudspersons have raised issues with government agencies on behalf of individuals in order to resolve issues.

In some cases, environmental complaints may be more appropriately addressed to the Australian Human Rights Commission (AHRC) (in cases of discrimination, including age discrimination) or the Information Commissioner (for privacy breaches). The AHRC also has powers to consider human rights complaints.¹⁶⁰ However, no environmental complaints heard/determined by the AHRC to date (whether human rights, discrimination, or privacy) have been found. In addition, the AHRC conciliation process does not provide an effective remedy as the AHRC's recommendations do not have binding effect.

In addition to these administrative authorities, local governments within most States and Territories have certain powers with respect to environmental matters. For example, all states and territories have environmental protection authorities, which are invested with investigation and enforcement powers under relevant environmental legislation. States and territories also have public health legislation that establishes a legal framework to protect the public from public health risks including by enabling monitoring of health indicators and making provisions for the government’s response to public health risks. For example, the Public Health and Wellbeing Act 2008 (Vic) was introduced in Victoria as a means of protecting public health by implementing controls on certain activities such as pest control and the management of vector-borne infectious diseases.¹⁶¹ Local councils may act to enforce these provisions, which can carry offences.

IV. Civil and political rights

Freedom of peaceful assembly

A. How is children’s right to engage in peaceful assembly, including protests, protected in national law?

In Australia, rights to freedom of peaceful assembly are derived from international principles of human rights. While Australia has ratified the International Covenant on Civil and Political Rights (ICCPR), and is a party to the Universal Declaration of Human Rights and the Convention on the Rights of the Child, the related obligations exist only under international law and are not adopted in federal legislation.¹⁶² Because Australia is a dualist legal system, this means that the international treaties do not have a binding effect unless and until they are adopted into legislation. Presently, Australia has no federal human rights Act or charter.¹⁶³

However, the Australian Capital Territory (ACT), Victoria and Queensland have enacted legislation at the state level to recognise a commitment to these principles and to provide a framework to uphold them.¹⁶⁴ The relevant Acts are:

1. the Human Rights Act 2004 (ACT);¹⁶⁵
2. the Charter of Human Rights and Responsibilities Act 2006 (Vic)¹⁶⁶; and
3. the Human Rights Act 2019 (Qld)¹⁶⁷.

Under each of these Acts, every person has the right of peaceful assembly and the right to freedom of association with others.¹⁶⁸ These rights apply to all individuals, including children.¹⁶⁹

B. Are there any legal limitations on the right of children to engage in peaceful assemblies?

In most states and territories, it is a legal requirement that children between the ages of 6 and 17 are enrolled in primary or secondary school (or are registered for home schooling).¹⁷⁰ This may impact their ability to gather in public spaces, though this is a technical view only and practically, most schools allow peaceful assemblies. Indeed, in some cases these activities may be actively encouraged. Recent years have seen a rise in the popularity of student climate strikes, with one in Naarm (Melbourne) in 2019 drawing 150,000 protesters to the streets to demand climate justice.¹⁷¹ However, the then Prime Minister condemned Schools Strike 4 Climate activists and the Australian Youth Climate Coalition for their peaceful protests in 2018.¹⁷²

Following trespass-related protests, in 2019, the federal government passed the Criminal Code Amendment (Agricultural Protection) Bill to impose penalties for those who “use a carriage service to transmit, make available, publish or otherwise distribute material to incite another person to [(i)] trespass [(12 months' imprisonment)] or [(ii)] commit property offences [(five years’ imprisonment)] on agricultural land.”¹⁷³ In 2019, the Law Council of Australia expressed its concern “that the scheme may have the potential to criminalise conduct that would be otherwise regarded as benign, and that it has the potential to create a chilling effect on legitimate dialogue and debate around animal rights and food production” and “to reduce the electronic distribution of information or discussion relating to farming practices.”¹⁷⁴

The federal government has proposed that the Australian Charities and Not-for-profits Commission (ACNC) be given the power to deregister a charity where the ACNC “reasonably believes” its members are likely to commit a summary offence.¹⁷⁵ Also, from time to time, authorities impose restrictions or conditions on public gatherings under certain circumstances, usually on the basis of public safety. Nationwide lockdown measures during COVID-19 are an obvious example, but periodic restrictions are also enacted in some areas over the Christmas and New Year period (usually in order to prevent widespread unsociable behaviour in public spaces).

Police officers in most states and territories are also empowered to issue “move on” orders to persons they consider to be causing disorder or likely to commit an offence.¹⁷⁶ Some commentators have criticised the widespread use of these powers in Australia as a tactic used by police to control public spaces and restrict protest rights.¹⁷⁷ This is despite the fact there is an exception to moving on powers in some states for persons ‘demonstrating or protesting’ or otherwise acting in a way ‘apparently intended to publicise the person's view about a particular issue’.¹⁷⁸

In 2019, a 17-year-old girl and 20 other Extinction Rebellion demonstrators were strip-searched by Queensland police.¹⁷⁹ A number of climate activists have been subjected to severe bail conditions, including several who were held in detention for up to 27 hours for impeding traffic in Sydney. In New South Wales, police have imposed strict bail conditions on Extinction Rebellion activists, prohibiting them from "going near, or contacting or attempting to contact (except through a legal representative) any members of the group Extinction Rebellion," as well as from being within 2.5 kilometres of Sydney's city centre.¹⁸⁰ Anjali Sharma, applicant in Sharma v Minister (see Parts I.C. and III.B.) explained:

“Before turning to climate litigation, I was largely involved in student strikes. Hours have been dedicated to legal research in the process of strike organising. I was surprised at how easy it was for strikers to get in trouble just for trying to make their voices heard. You will be hard pressed to find an activist that hasn’t either had a confrontation with the police, or knows someone who has. My fellow litigant Izzy Raj-Seppings went viral when she faced riot police at her first ever climate protest at the age of 13 outside Kirribilli House. A quick Google search will find you the picture of a 13-year-old crying and staring down police officers telling her “you may be arrested, force may be used”. How is the threat of arrest and force justified towards a 13-year-old peaceful protestor?”.¹⁸¹

Sharma added another example:

“I have a friend who is set to face the Children’s Court for peaceful, compliant obstruction of a roadway during a civil disobedience action. This involved them mounting a tripod and occupying a quiet road. No one was put in danger and all activists present were fully compliant, however they were still arrested on four separate charges.”¹⁸²

According to Amnesty International, particular challenges to exercising the rights of freedom of assembly and association in Queensland include: “[...] changes to laws that unnecessarily restrict peaceful protest tactics in Queensland, the use of disproportionate and unnecessary force by police against peaceful protesters, and the influence of fossil fuel industries on both the Queensland laws, and the Australian government’s public statements concerning climate change activists.”¹⁸³ UN Special Rapporteurs stated that the laws in Queensland "unduly restrict the right to freedom of peaceful assembly" and are "inherently disproportionate".¹⁸⁴ However, other states have also passed laws that restrict these rights, such as Tasmania, New South Wales and South Australia.¹⁸⁵

C. What penalties can be imposed on children for engaging in school strikes?

The primary and secondary education system is regulated by each state and territory, not the federal government. Generally, participation in school strikes is not considered a breach of state legislation and does not carry prescribed penalties. This is especially the case given school strikes are typically "once off" occasions.

As discussed in Part IV.B, education laws in each state and territory generally make it a legal requirement that children between the ages of 6 and 17 are enrolled in school, and prescribe fines for parents or guardians in breach of this rule.¹⁸⁶ However, this is unlikely to apply to school strikes given the students remain enrolled in the school and have not breached the requirement.

In practice, penalties for being absent from school on individual occasions are determined and imposed by individual schools. These may include suspension, expulsion or other punishments. However, these types of punishments are unlikely to be enforced in practice given school strikes are generally accepted as a type of peaceful assembly to which students are entitled. For example, hundreds of thousands of Australian school students took part in climate strike rallies in March, September and November 2019.¹⁸⁷ While federal and state government authorities did not support participation by students and encouraged them to remain in school, there was no widespread evidence of penalties being imposed on these children.¹⁸⁸

Freedom of expression

A. How is children’s right to freedom of expression protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

The Australian Constitution does not contain any express right to a freedom of expression. However, the High Court of Australia has acknowledged in various decisions that an implied freedom of political communication exists under the Australian Constitution. This is primarily based on sections 7 and 24 of the Australian Constitution, which provide that parliament must be “directly chosen by the people”¹⁸⁹.

The implied freedom of political communication has been inferred by the High Court of Australia in various circumstances, including:

• declaring invalid Commonwealth laws that prohibited the broadcasting of political material in the lead-up to elections and obliged broadcasters to provide free advertising time to political parties during an election period¹⁹⁰;
• to allow the distribution in a public place of pamphlets alleging corruption by named police officers¹⁹¹; and
• to defend defamation allegations made by a former New Zealand prime minister against a news outlet.¹⁹²

Although not judicially considered, it is plausible that environmental protests would fall under the implied freedom of political communication. However, the implied freedom to political communication is not a positive freedom and is subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government.¹⁹³ For example, the Racial Discrimination Act 1975 (Cth) engages with the implied right to political communication by making it unlawful to do an act reasonably likely to offend, insult, humiliate or intimidate another person or group if the act is done because of the race, colour or national or ethnic origin of the person or group.¹⁹⁴ Note there is similar anti-racial discrimination legislation in each jurisdiction. Another notable example is that in 2019 the High Court of Australia upheld the validity of legislation in Victoria and Tasmania that prohibited certain communications and protests about abortion within 150 metres of abortion clinics, finding that the restriction on the implied freedom of political communication was appropriate.¹⁹⁵

In addition to the implied freedom of political communication, there is a principle of statutory interpretation applied by Australian courts that “in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms”.¹⁹⁶

As set out in Part IV.A (Freedom of peaceful assembly), while the Australian government has ratified the ICCPR and is a party to the Universal Declaration of Human Rights and the Convention on the Rights of the Child, the related obligations exist only under international law and there is no Commonwealth legislation enshrining a general right to freedom of expression.¹⁹⁷ Victoria, Queensland and the ACT have human rights legislation that protects freedom of expression.¹⁹⁸

B. Are there any legal limits or restrictions on the right to freedom of expression that specifically apply to children?

As set above in Part IV.A (Freedom of expression), there are limitations to the implied freedom of political communication, however, these do not specifically apply to children.

The then Prime Minister Scott Morrison told a mining lobby in November 2019 that the federal government would explore making it illegal for climate activists to advocate for boycotts of firms that do business with mining companies.¹⁹⁹ The Minerals Council of Australia, the Australian Forest Products Association, and the Business Council of Australia all welcomed the Prime Minister's proposal.²⁰⁰

Freedom of association

A. How is children’s right to freedom of association protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

Freedom of association is not expressly protected in the Australian Constitution. However, there are some constitutional limits on Parliament’s power to restrict freedom of association. For example, section 116 of the Australian Constitution places some limits on the Parliament’s power to interfere with freedom of association with respect to religion.

The High Court of Australia has also considered that there may be an implied right to political association as “a corollary to the implied freedom of political communication”.²⁰¹ This implied right does not protect a personal right, but acts as a restraint on the exercise of legislative power by the government.

Similar to freedom of assembly and expression, while the Australian government has ratified the ICCPR and is a party to the Universal Declaration of Human Rights and the Convention on the Rights of the Child, there is no federal legislation protecting a general right to freedom of association. However, there are some specific associations protected under legislation. For example, the Fair Work Act 2009 (Cth) protects freedom of association in the workplace by ensuring that persons:

• are free to become, or not become, members of industrial associations;
• are free to be represented, or not represented, by industrial associations; and
• are free to participate, or not participate, in lawful industrial activities.²⁰²

Victoria, Queensland and the ACT have human rights legislation that protects freedom of association.²⁰³

There is federal legislation that expressly limits freedom of association (which will prevail over Victoria, Queensland and the ACT’s human rights legislation). This includes:

• counter-terrorism offences²⁰⁴
• the operation of the ‘character test’ in the Migration Act 1958 (Cth), which provides a ministerial discretion to refuse a visa to a person whom the Minister reasonably suspects is a member of or has an association with certain groups or organisations or persons²⁰⁵

B. Are there any legal limits or restrictions on the right to association that specifically apply to children?

As set above in Part IV.A (Freedom of association), there are limitations to the freedom of association. These do not specifically apply to children.

Access to information

A. How is children’s right to access information protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

At federal level, the Freedom of Information Act 1982 (Cth) grants a legally enforceable right to every person to obtain access to:

• a document of an agency, other than an exempt document; or
• an official document of a Minister, other than an exempt document.²⁰⁶

Note that each state and territory also has ‘freedom of information’ legislation.²⁰⁷ As discussed in Part IV.B. (Access to Information), the categories of exempt documents are relatively broad. It can also be a difficult process to obtain documents as there is a time period for a government agency to consider the request (determined by the legislation of the particular jurisdiction), and government agencies can also decide to impose charges for the application, which the applicant must pay before their request can be processed.

The Privacy Act 1988 (Privacy Act) is the primary Australian law that protects the personal information of individuals, regardless of their age. It does not specify an age after which an individual can make their own privacy decision, however an individual must have capacity to consent.²⁰⁸ Current guidance notes that capacity should be determined on a case-by-case basis - where this is not practical, as a general rule it may be assumed that an individual over the age of 15 will have capacity to consent.²⁰⁹ The Privacy Act Review Report, released in February 2023, recommended that specific protections for children be introduced into the Privacy Act.²¹⁰ The Australian Government is developing a response to the Privacy Act Review Report which will set out a pathway for reforms.

Australia has not ratified the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice on Environmental Matters 1998 (Aarhus Convention).

B. Are there any legal limits or restrictions on the right to access information that apply specifically to children?

Documents might be exempt from disclosure if they fall into an exempt category of documents or are conditionally exempt on the basis that that disclosure would be contrary to the public interest. The Freedom of Information Act does not distinguish between children and adults.²¹¹ However, the best interest of a child can be a relevant factor in determining whether disclosure of information would be contrary to the public interest. Categories of documents which might be exempt from disclosure include (but are not limited to):

• documents affecting national security, defence or international relations;
• Cabinet documents;²¹²
• documents affecting the enforcement of law and protection of public safety;
• documents where secrecy provisions or enactments apply;
• legally privileged documents;
• documents containing material obtained in confidence; and
• where disclosure of the document would be in contempt of Court.

Limitations in relation to social media are not regulated by the government. The age limits for these platforms are enforced by the individual entities.

As an example of a state’s freedom of information legislation, Queensland’s Right to Information Act 2009 gives people the right to access documents held by Queensland government bodies.²¹³ This Act expressly authorises parents to make applications on their children's behalf because, while children are allowed to make their own applications, they may lack the ability or capacity to do so.²¹⁴ Decision-makers dealing with applications submitted by or on behalf of children must examine whether disclosing information is in the child's best interests.²¹⁵ This may entail striking a balance between a variety of issues, including the child's wellbeing and wishes, as well as the parent's relationship with, or ability to care for, their child.²¹⁶ Decision-makers must examine whether information within the scope of the application is exempt from publication, is contrary to the public interest to release, or is not releasable because it would be detrimental to the child's best interests.²¹⁷ Section 47(3)(c) allows a government body to deny access to a child's personal information if it believes that publication would be contrary to their best interests.²¹⁸

Environmental Defenders Office has reported that “[a] 2020 survey showed that more than half (52%) of the environmental scientists surveyed who worked for Australian federal and state governments had been “prohibited from communicating scientific information”.”²¹⁹

C. Does the national curriculum for schools include environmental education?

Since 2022, sustainability is one of the three cross-curriculum priorities under the Australian Curriculum (Sustainability Priority)²²⁰. The Sustainability Priority is aimed at developing students’ knowledge, skills, values and world views necessary to contribute to more sustainable patterns of living.²²¹ The Sustainability Priority was developed around three key concepts:

1. exploring the interdependent and dynamic nature of systems that support all life on Earth and our collective wellbeing;
2. enabling a diversity of world views on ecosystems, values and social justice to be discussed and recognised when determining individual and community actions for sustainability; and
3. building capacities for thinking and acting in ways that are necessary to create a more sustainable future.

The Sustainability Priority is designed to be included in each learning area. For example:

• in English studies, students develop the skills necessary to investigate, analyse and communicate ideas and information related to sustainability, and to advocate, generate and evaluate actions for sustainable futures;
• in Science studies, the Sustainability Priority provides contexts for investigating and understanding chemical, biological, physical and Earth and space systems; and
• in Arts studies, sustainability provides engaging and thought-provoking contexts in which to explore the nature of art making and responding.²²²

End notes

¹ Constitution Act 1902 (NSW), available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1902-032; Constitution of Queensland 2001 (Qld), available at: https://www.legislation.qld.gov.au/view/html/inforce/current/act-2001-080; Constitution Act 1934 (SA), available at: https://www.legislation.sa.gov.au/lz?path=%2FC%2FA%2FCONSTITUTION%20ACT%201934; Constitution Act 1934 (Tas), available at:https://www.legislation.tas.gov.au/view/html/inforce/current/act-1934-094; Constitution Act 1975 (Vic), available at: https://www.legislation.vic.gov.au/in-force/acts/constitution-act-1975/224; Constitution Act 1889 (WA), available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_185_homepage.html.

² Australian Capital Territory (Self-Government) Act 1988 (Cth), available: https://www.legislation.gov.au/Details/C2013C00134; Northern Territory (Self-Government) Act 1988 (Cth), available at: http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/nta1978425/.

³ Australian Constitution, s 51, available at: https://www.legislation.gov.au/Details/C2005Q00193; Commonwealth v Tasmania (1983) 158 CLR 1. Unreported version available at: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1983/21.html.

⁴ Commonwealth v Tasmania (1983) 158 CLR 1.

⁵ Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 3A, available at: https://www.legislation.gov.au/Details/C2019C00275.

⁶ See, e.g., Protection of the Environment Administration Act 1997 (NSW), s 3. Available at: https://www.legislation.nsw.gov.au/#/view/act/1997/156/full; Environment Protection Act 1970 (Vic) ss 1B, 1D. Available at: https://www.legislation.vic.gov.au/in-force/acts/environment-protection-act-1970/213.

⁷ (No 6) [2022] QLC 21. Available at: https://www.sclqld.org.au/caselaw/QLC/2022/21.

⁸ Ibid., [1603].

⁹ Supra note 7.

¹⁰ Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136. Unreported version available at: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2008/116.html.

¹¹ Ibid., [72].

¹² Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1. Unreported version available at: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2007/59.html.

¹³ Ibid., [74].

¹⁴ For a recent discussion on Australia’s climate change cases see Victoria McGuinness and Murray Raff, ‘Coal and Climate Change: A Study of Contemporary Climate Litigation in Australia’ (2020) 37 Environmental and Planning Law Journal 87. Available at: https://researchprofiles.canberra.edu.au/en/publications/coal-and-climate-change-a-study-of-contemporary-climate-litigatio.

¹⁵ Gray v Minister for Planning (2006) 152 LGERA 258, [126]. Unreported version available at: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2006/720.html.

¹⁶ Ibid., [126].

¹⁷ Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257, [498]. Unreported version available at: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2019/7.html?context=1;query=Gloucester%20Resources%20Ltd;mask_path=au/cases/nsw/NSWLEC.

¹⁸ Ibid., [498].

¹⁹ Minister for the Environment (Commonwealth) v Anjali Shama & Ors (by their litigation representative Sister Marie Brigid Arthur). Files and transcripts available at: https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/minister-for-the-environment-v-sharma. .

²⁰ Minister for the Environment v Sharma [2022] FCAFC 35. Available at: https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/minister-for-the-environment-v-sharma.

²¹ Supra note 5.

²² Ibid.,s 522A.

²³ The independent review of the Environment Protection and Biodiversity Conservation Act 1999. Available at: https://epbcactreview.environment.gov.au/

²⁴ The independent review of the Environment Protection and Biodiversity Conservation Act 1999: Key Messages, https://epbcactreview.environment.gov.au/resources/final-report/key-messages.

²⁵ EPBC Act Reform. Available at: https://www.dcceew.gov.au/environment/epbc/epbc-act-reform.

²⁶ National Environment Protection Council website: https://www.nepc.gov.au/.

²⁷ National Environment Protection Council Act 1994 (Cth), s 3. Available at. https://www.nepc.gov.au/#:~:text=The%20National%20Environment%20Protection%20Council,National%20Environment%20Protection%20Measures%20(%20NEPMs%20).

²⁸ Melanie Montalban and Frances Bradshaw, A Healthy Environment is a Human Right: Report on the Status of the Human Right to a Healthy Environment in Australia (EDO, July 2022). Available at: https://www.edo.org.au/wp-content/uploads/2022/08/EDO_HealthyEnvironment_Full_Web.pdf.

²⁹ ACT Government, Justice and Community Safety Directorate, Right to a Healthy Environment, https://www.justice.act.gov.au/safer-communities/right-to-a-healthy-environment.

³⁰ Climate Change Act 2022. Available at: https://www.legislation.gov.au/Details/C2023C00092.

³¹ All available here: https://www.environment.act.gov.au/about-us/legislation-policies-guidelines.

³² Australian Capital Territory bilateral agreement for environmental assessments. Available at: https://www.dcceew.gov.au/environment/epbc/approvals/state-assessments/act. Since 2015, each state and territory has entered into a bilateral agreement with the federal government, allowing them to assess actions under the EPBC Act. For further information, see: https://www.dcceew.gov.au/environment/epbc/approvals/state-assessments.

³³ See: https://www.justice.act.gov.au/safer-communities/right-to-a-healthy-environment.

³⁴ Waste Management and Pollution Control Act 1998 (NT). Available at: https://legislation.nt.gov.au/Legislation/WASTE-MANAGEMENT-AND-POLLUTION-CONTROL-ACT-1998.

³⁵ Environment Protection Act 2019 (NT). Available at: https://legislation.nt.gov.au/en/Legislation/ENVIRONMENT-PROTECTION-ACT-2019.

³⁶ Jano Gibson, NT government abandons plan to include mining industry in new environmental laws (Australian Broadcasting Corporation, published 10 August 2022). Available at: https://www.abc.net.au/news/2022-08-11/nt-government-abandons-parts-of-environment-laws/101316442.

³⁷ Ibid.

³⁸ Ibid.

³⁹ Environmental Planning and Assessment Act 1979 No 203. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1979-203.

⁴⁰ Protection of the Environment Operations Act 1997 (NSW). Available at: https://www.legislation.nsw.gov.au/#/view/act/1997/156.

⁴¹ Protection of the Environment Administration Act 1991 No 60. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1991-060.

⁴² Biodiversity Conservation Act 2016 No 63. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-2016-063.

⁴³ National Parks and Wildlife Act 1974 No 80. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1974-080.

⁴⁴ Local Land Services Act 2013 No 51. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-2013-051.

⁴⁵ Contaminated Land Management Act 1997 (No.40). Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1997-140.

⁴⁶ Mining Act 1992 No 29. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1992-029

⁴⁷ Petroleum (Onshore) Act 1991 No 84. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1991-084.

⁴⁸ Petroleum (Offshore) Act 1982 No 23. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1982-023.

⁴⁹ Water Act 1912 No 44. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-1912-044.

⁵⁰ Water Management Act 2000 No 92. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-2000-092.

⁵¹ Forestry Act 2012 No 96. Available at: https://legislation.nsw.gov.au/view/html/inforce/current/act-2012-096.

⁵² Environmental Protection Act 1994 (Qld). Available at: https://www.legislation.qld.gov.au/view/html/inforce/current/act-1994-062.

⁵³ Environmental Protection Regulation 2019. Available at: https://www.legislation.qld.gov.au/view/html/inforce/current/sl-2019-0155.

⁵⁴ Nature Conservation Act 1992. Available at: https://www.legislation.qld.gov.au/view/html/inforce/current/act-1992-020.

⁵⁵ Vegetation Management Act 1999. Available at: https://www.legislation.qld.gov.au/view/html/inforce/current/act-1999-090.

⁵⁶ Coastal Protection and Management Act 1995. Available at: https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-1995-041.

⁵⁷ Water Act 2000. Available at: https://www.legislation.qld.gov.au/view/html/inforce/current/act-2000-034.

⁵⁸ https://www.legislation.qld.gov.au/view/html/inforce/current/act-2011-031

⁵⁹ Environmental Offsets Act 2014. Available at: https://www.legislation.qld.gov.au/view/html/inforce/current/act-2014-033.

⁶⁰ Environment Protection Act 1993 (SA). Available at: https://www.legislation.sa.gov.au/LZ/C/A/ENVIRONMENT%20PROTECTION%20ACT%201993.aspx.

⁶¹ Aquaculture Act 2001 (SA). Available at: https://www.legislation.sa.gov.au/lz?path=%2FC%2FA%2FAQUACULTURE%20ACT%202001.

⁶² Wingfield Waste Depot Closure Act 1999. Available at: https://www.legislation.sa.gov.au/lz?path=%2FC%2FA%2FWINGFIELD%20WASTE%20DEPOT%20CLOSURE%20ACT%201999.

⁶³ Draft Environmental Management and Pollution Control Amendment Bill 2022 (Tas). Available at: https://nre.tas.gov.au/environment/environmental-management-and-pollution-control-amendment-bill. This bill proposes changes to the Environmental Management and Pollution Control Act 1994 (Tas) including, (i) strengthening the independence of the Environment Protection Authority (EPA), (ii) powers for the Director, EPA to make monitoring information available to the public, (iii) processes for making Environmental Standards to manage activities that may affect the State’s natural environment and (iv) process for making Technical Standards to help implement environmental standards, State Policies, Environment Protection Policies or National Environmental Protection Measures.

⁶⁴ Climate Change (State Action) Act 2008 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-2008-036.

⁶⁵ Threatened Species Protection Act 1995 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1995-083.

⁶⁶ Nature Conservation Act 2002 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-2002-063.

⁶⁷ National Parks and Reserves Management Act 2002 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-2002-062.

⁶⁸ Litter Act 2007 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-2007-038.

⁶⁹ Mineral Resources Development Act 1995 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1995-116.

⁷⁰ Water Management Act 1999 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1999-045.

⁷¹ Living Marine Resources Management Act 1995 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1995-025.

⁷² Marine Farming Planning Act 1995 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1995-031.

⁷³ Marine-related Incidents (MARPOL Implementation) Act 2020 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-2020-022.

⁷⁴ Waste and Resource Recovery Act 2022 (Tas). Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-2022-006.

⁷⁵ Environment Protection Act 2017 (Vic). Available at: https://www.legislation.vic.gov.au/in-force/acts/environment-protection-act-2017/010.

⁷⁶ Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic). Available at: https://www.legislation.vic.gov.au/in-force/acts/pollution-waters-oil-and-noxious-substances-act-1986/038.

⁷⁷ National Environment Protection Council Act 1995 (Vic). Available at: https://www.legislation.vic.gov.au/in-force/acts/national-environment-protection-council-victoria-act-1995/005.

⁷⁸ Planning and Environment Act 1987 (Vic). Available at: https://www.legislation.vic.gov.au/in-force/acts/planning-and-environment-act-1987/154.

⁷⁹ Biodiversity Conservation Act 2016 (WA). Available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_13811_homepage.html.

⁸⁰ Conservation and Land Management Act 1984 (WA). Available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_193_homepage.html.

⁸¹ Environmental Protection Act 1986 (WA). Available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_304_homepage.html

⁸² Carbon Rights Act 2003 (WA). Available at: https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_220.pdf/$FILE/Carbon%20Rights%20Act%202003%20-%20%5B00-b0-09%5D.pdf?OpenElement.

⁸³ Contaminated Sites Act (WA) 2003. Available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_194_homepage.html.

⁸⁴ Environmental Protection (Landfill) Levy Act (WA) 1998. Available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_303_homepage.html.

⁸⁵ Litter Act 1979 (WA). Available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_548_homepage.html.

⁸⁶ Rights in Water and Irrigation Act 1914 (WA). Available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_844_homepage.html.

⁸⁷ Waste Avoidance and Resource Recovery Levy Act 2007 (WA). Available at: https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_2760_homepage.html.

⁸⁸ All available here: https://www.industrialchemicals.gov.au/chemical-information/banned-or-restricted-chemicals.

⁸⁹ National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth). Available at: https://www.legislation.gov.au/Details/F2013C00288.

⁹⁰ See WHO guidelines: https://www.who.int/health-topics/air-pollution#tab=tab_1.

⁹¹ Public Health Association Australia, Environmental lead exposure Policy Position Statement. Available at: https://www.phaa.net.au/documents/item/4739.

⁹² NSW Government website, ‘Lead Exposure in Children’. Available at: https://www.health.nsw.gov.au/environment/factsheets/Pages/lead-exposure-children.aspx.

⁹³ Australian Government Department of Health and Aged Care, ‘Banned or Restricted Chemicals’. Available at: https://www.industrialchemicals.gov.au/chemical-information/banned-or-restricted-chemicals.

⁹⁴ Australian Government Department of Climate Change, Energy, the Environment and Water, ‘Exporting, importing or transiting Hazardous wastes’. Available at: https://www.dcceew.gov.au/environment/protection/hazardous-waste.

⁹⁵ Supra note 93.

⁹⁶ Recycling and Waste Reduction Act 2020. Available at: https://www.transparency.gov.au/annual-reports/department-agriculture-water-and-environment/reporting-year/2020-21-27.

⁹⁷ Industrial Chemicals Act 2019. Available at: https://www.industrialchemicals.gov.au/glossary/industrial-chemicals-act-2019#:~:text=The%20Industrial%20Chemicals%20Act%202019,scheme%20that%20administers%20these%20laws.

⁹⁸ Therapeutic Goods Regulations 1990. Available at: https://www.tga.gov.au/about-tga/legislation/legislation-and-legislative-instruments.

⁹⁹ Agricultural and Veterinary Chemicals (Administration) Regulations 1995. Available at: https://faolex.fao.org/docs/pdf/aus5829.pdf.

¹⁰⁰ Customs (Prohibited Exports) Regulations 1958. Available at: http://classic.austlii.edu.au/au/legis/cth/consol_reg/cer1958439/; Customs (Prohibited Imports) Regulations 1956. Available at: http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_reg/cir1956432/.

¹⁰¹ Department of Agriculture, Water and the Environment, ‘National Pollution Inventory’. Available at: http://www.npi.gov.au/.

¹⁰² Department of Agriculture, Water and the Environment, ‘National Pollution Inventory: Substance List and Threshold’. Available at:http://www.npi.gov.au/substances/substance-list-and-thresholds.

¹⁰³ Department of Agriculture, Water and the Environment, ‘National Pollution Inventory: Lead & Compounds’. Available at: http://www.npi.gov.au/resource/lead-compounds.

¹⁰⁴ Australian hazardous waste data and reporting standard (June 2022), p. 2. Available at: https://www.dcceew.gov.au/sites/default/files/documents/aus-hazwaste-data-reporting-standard-2022.pdf.

¹⁰⁵ National Environment Protection (Movement of Controlled Waste between States and Territories) Measure. Available at: https://www.nepc.gov.au/nepms/movement-controlled-waste.

¹⁰⁶ Supra note 3; Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501, http://eresources.hcourt.gov.au/showbyHandle/1/9030; XYZ v The Commonwealth (2006) 227 CLR 532, http://eresources.hcourt.gov.au/downloadPdf/2006/HCA/25.

¹⁰⁷ Supra note 5, s 224.

¹⁰⁸ Ibid.

¹⁰⁹ Hazardous Waste (Regulation of Exports and Imports) Act 1989. Available at: https://www.nepc.gov.au/nepms/movement-controlled-waste

¹¹⁰ Ibid.

¹¹¹ See, e.g., Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, [45]-[62], http://eresources.hcourt.gov.au/downloadPdf/2002/HCA/27; Supra notes 1 and 2 (Cth, s 2(1); Vic s 16; NSW, s 5; WA, s 2; Northern Territory, s 6).

¹¹² Supra note 52, s 25.

¹¹³ Australian Federal Police Website, ‘Environmental Crime’. Available at: https://www.afp.gov.au/what-we-do/crime-types/environmental-crime.

¹¹⁴ See a list of Government’s departments and functions here: https://www.afp.gov.au/what-we-do/crime-types/environmental-crime.

¹¹⁵ Supra note 3.

¹¹⁶ Ibid., p.14.

¹¹⁷ Ibid.

¹¹⁸ Ibid.

¹¹⁹ Supra note 5.

¹²⁰ Ibid.

¹²¹ Ibid.

¹²² Ibid.

¹²³ Ibid.

¹²⁴ Office of the Public Advocate website, ‘Litigation Guardian’. Available at: https://www.publicadvocate.vic.gov.au/guardianship-and-administration/litigation-guardian.

¹²⁵ Yusur Al-Azzawi, Katrina Bullock and Rachael Barwick, Global Warning: the threat to climate defenders in Australia (EDO, Human Rights Law Centre and Greenpeace, 2021), p. 2, available at: https://www.edo.org.au/wp-content/uploads/2021/12/Global-Warning-Report-EDO-GP-and-HRLC.pdf.

¹²⁶ ‘Equality Before the Law Bench Book, section 6 - children and young people’. Available at: https://www.judcom.nsw.gov.au/publications/benchbks/equality/section06.html.

¹²⁷ See, e.g., Civil Procedure Act 2010 (Vic) s 29 https://content.legislation.vic.gov.au/sites/default/files/635930d8-3fd3-3e61-92b4-148a5d5a6ed8_10-47aa020%20authorised.pdf; Evidence Act 2008 (Vic) s 140 https://content.legislation.vic.gov.au/sites/default/files/2020-02/08-47aa025%20authorised.pdf.

¹²⁸ See Legal Services Commission South Australia, ‘Negligence - Overview’. Available at: https://www.lawhandbook.sa.gov.au/ch01s05.php.

¹²⁹ Ibid.

¹³⁰ Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11. Available at: https://www.legislation.gov.au/Details/C2019C00309.

¹³¹ Ibid., s. 39B.

¹³² Limitation of Actions Act 1958 (Vic) s 5(1AA). Available at: https://content.legislation.vic.gov.au/sites/default/files/2020-04/58-6295aa107%20authorised.pdf; Limitation Act 1969 (NSW) s 18A. Available at: https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1969-031.

¹³³ See also David Bamford and Mark Rankin, Principles of Civil Litigation (2nd ed, 2014). Available at: https://researchnow.flinders.edu.au/en/publications/principles-of-civil-litigation-4.

¹³⁴ Environment Protection Authority Victoria, ‘Compliance and Enforcement Policy’. Available at: https://www.epa.vic.gov.au/-/media/epa/files/publications/1388-3.pdf.

¹³⁵ Section 7 of the Criminal Procedure Act 2009 (Vic). Available at: https://content.legislation.vic.gov.au/sites/default/files/2020-04/09-7aa075%20authorised.pdf.

¹³⁶ Christine Trenorden, Environmental legal aid slashed when Australia needs it most, The Conversation 2014, https://theconversation.com/environmental-legal-aid-slashed-when-australia-needs-it-most-23988; Environment cases won't get Legal Aid, The Sydney Morning Herald 2013, https://www.smh.com.au/environment/environment-cases-wont-get-legal-aid-20130630-2p593.html.threaten_environmental_justice.

¹³⁷ See ‘Environmental Defenders Office’, https://www.edo.org.au/.

¹³⁸ See ‘Environmental Justice Australia’, https://www.envirojustice.org.au/.

¹³⁹ See Australian Government budget 2022-23: https://www.dcceew.gov.au/sites/default/files/documents/oct-budget-2022-23-environment-fs.pdf.

¹⁴⁰ Supra note 125, p. 3.

¹⁴¹ Supra note 5; Environment Protection Amendment Act 2018. Available at: https://content.legislation.vic.gov.au/sites/default/files/79b87865-9bbe-376c-95fa-fc61b1b0d844_18-039aa%20authorised.pdf.

¹⁴² Supra note 5, s 475. Available at: https://www.dcceew.gov.au/environment/epbc.

¹⁴³ Ibid., s 476.

¹⁴⁴ Ibid., Pt 3, Div 1.

¹⁴⁵ Ibid., s 499.

¹⁴⁶ See, ‘Environmental Law and Practice in Australia: Overview’, https://uk.practicallaw.thomsonreuters.com/1-502-8908.

¹⁴⁷ See s 25 of the Environment Protection Act 2017 (Vic) (Supra note 75): “A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.”

¹⁴⁸ Supra note 146.

¹⁴⁹ Ibid.

¹⁵⁰ Ibid.

¹⁵¹ Administrative Decisions (Judicial Review) Act 1977 (Cth). Available at: http://classic.austlii.edu.au/au/legis/cth/consol_act/adra1977396/.

¹⁵² Ibid., s 16(1).

¹⁵³ Supra note 3.

¹⁵⁴ Ibid.

¹⁵⁵ Supra note 19.

¹⁵⁶ Ibid.

¹⁵⁷ Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39. Unreported version available at: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2001/1453.html.

¹⁵⁸ Environmental Protection Authority Victoria, ‘Compliance and Enforcement: K&K Property Holdings Pty Ltd (ACN: 069 833 601)’. Available at: https://www.epa.vic.gov.au/about-epa/public-registers/court-proceedings/k-and-k-property-holdings-pty-ltd.

¹⁵⁹ Environmental Protection Authority Victoria, ‘Compliance and Enforcement: Matthew Starr’. Available at: https://www.epa.vic.gov.au/about-epa/public-registers/court-proceedings/matthew-starr.

¹⁶⁰ See s 20 of the AHRC Act, available at: https://www.legislation.gov.au/Details/C2022C00369.

¹⁶¹ Public Health and Wellbeing Act 2008 (Vic). Available at: https://www.legislation.vic.gov.au/in-force/acts/public-health-and-wellbeing-act-2008.

¹⁶² Victorian Equal Opportunity and Human Rights Commission, ‘Australia's human rights framework’. Available at: https://www.humanrightscommission.vic.gov.au/human-rights/the-charter/australian-human-rights-framework.

¹⁶³ See University of Melbourne, Human Rights Law, https://unimelb.libguides.com/human_rights_law/national/australia#:~:text=International%20Law%20and%20Australian%20Domestic%20Law&text=The%20dualist%20system%20means%20that,be%20incorporated%20into%20domestic%20legislation.

¹⁶⁴ Ibid. See also the Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2019 (Qld).

¹⁶⁵ Ibid. (ACT). Available at: https://www.legislation.act.gov.au/View/a/2004-5/current/PDF/2004-5.PDF.

¹⁶⁶ Supra note 164 (Vic). Available at: https://content.legislation.vic.gov.au/sites/default/files/2020-04/06-43aa014%20authorised.pdf.

¹⁶⁷ Supra note 164 (Qld) https://www.legislation.qld.gov.au/view/html/inforce/current/act-2019-005.

¹⁶⁸ Supra note 164 (ACT) s 15; Supra note 164 (Vic) s 16; Supra note 164 (Qld) s 22.

¹⁶⁹ See, e.g., Legislation Act 2001 (ACT), Dictionary. Available at: http://classic.austlii.edu.au/au/legis/act/consol_act/la2001133/.

¹⁷⁰ See, e.g., Education and Training Reform Act 2006 (VIC), ss 2.1.1–2.1.3. See also ‘School Attendance Guidelines: Guide for Schools and School Attendance Officers’, https://www.education.vic.gov.au/school/principals/spag/participation/Pages/attendance.aspx.

¹⁷¹ Supra note 125.

¹⁷² Amnesty International, Australia - The Rights to Freedom of Peaceful Assembly and of Association to Advance Climate Justice Submission to the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association’, (2021). Available at: https://www.amnesty.org/en/wp-content/uploads/2021/07/ASA1242232021ENGLISH.pdf. p2.

¹⁷³ Criminal Code Amendment (Agricultural Protection) Bill 2019, Senate Legal and Constitutional Affairs Legislation Committee 31 July 2019 (Law Council of Australia 2019), p. 6. Available at: https://lawcouncil.au/publicassets/c60383b3-15b4-e911-9400-005056be13b5/3654%20-%20Criminal%20Code%20Amendment%20(Agricultural%20Protection)%20Bill%202019.pdf.; Arts. 474.46 and 474.47 of the Criminal Code.

¹⁷⁴ Ibid., pp. 7-8.

¹⁷⁵ Supra note 172, p. 3.

¹⁷⁶ See, e.g., Summary Offences Act 1966 (Vic) s 6. Available at: https://www.legislation.vic.gov.au/in-force/acts/summary-offences-act-1966/131.

¹⁷⁷ See, e.g., Luke McNamara and Julia Quilter, ‘Criminalising protest through the expansion of police ‘move-on’ powers: A case study from Australia’, International Journal of Law, Crime and Justice 58 (2019) 22. Available at: https://doi.org/10.1016/j.ijlcj.2019.07.001.

¹⁷⁸ Summary Offences Act 1966 (Vic) s 6(5).

¹⁷⁹ Supra note 172, p. 3.

¹⁸⁰ Ibid.

¹⁸¹ Supra note 125, p. 3.

¹⁸² Ibid.

¹⁸³ Ibid.

¹⁸⁴ Ibid.

¹⁸⁵ Ibid. For a summary of recent legislative changes, see: EDO, Submission to Parliamentary Joint Committee on Inquiry into Australia's Human Rights Framework (23 June 2023), pp. 2-3, https://www.edo.org.au/wp-content/uploads/2023/07/230623-Human-Rights-Framework-Inquiry-EDO-Submission.pdf. See also, supra note 125.

¹⁸⁶ See, e.g., Education and Training Reform Act 2006 (Vic), ss 2.1.1–2.1.3. Available at: https://www.legislation.vic.gov.au/in-force/acts/education-and-training-reform-act-2006.

¹⁸⁷ See, e.g., ABC News, ‘Climate change strikes across Australia see student protesters defy calls to stay in school’, 14 March 2019. Available at: https://www.abc.net.au/news/2019-03-15/students-walk-out-of-class-to-protest-climate-change/10901978; Luke Henriques-Gomes, ‘Hundreds of thousands attend school climate strike rallies across Australia’ The Guardian Australia, 20 September 2019 https://www.theguardian.com/environment/2019/sep/20/hundreds-of-thousands-attend-school-climate-strike-rallies-across-australia; Calla Wahlquist, ‘Climate change strike: thousands of school students protest over bushfires’ The Guardian Australia, 29 November 2019 https://www.theguardian.com/world/2019/nov/29/climate-change-strike-thousands-of-school-students-protest-over-bushfires.

¹⁸⁸ ABC News, ‘Climate change strikes across Australia see student protesters defy calls to stay in school’, 14 March 2019 https://www.abc.net.au/news/2019-03-15/students-walk-out-of-class-to-protest-climate-change/10901978.

¹⁸⁹ See, e.g., Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. Unauthorised version available at: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/45.html; Lange v Australian Broadcasting Corporation (1997) 145 ALR 96, 112. Unauthorised version available at: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1997/25.html; Coleman v Power [2004] HCA 39, http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/39.html; Unions NSW v New South Wales [2013] HCA 58, https://www.austlii.edu.au/au/journals/AdelLawRw/2014/11.pdf.

¹⁹⁰ Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. Unauthorised version available at: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/45.html.

¹⁹¹ Coleman v Power (2004) 220 CLR 1, http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/39.html.

¹⁹² Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Unauthorised version available at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1997/25.html.

¹⁹³ Ibid.

¹⁹⁴ Racial Discrimination Act 1975 (Cth), s 18C. Available at:https://www.legislation.gov.au/Details/C2016C00089.

¹⁹⁵ Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v Elizabeth Avery & Anor [2019] HCA 11.

¹⁹⁶ See, e.g., Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3. Available at: https://jade.io/j/?a=outline&id=290540.

¹⁹⁷ Victorian Equal Opportunity and Human Rights Commission, ‘Australia's human rights framework’ https://www.humanrightscommission.vic.gov.au/human-rights/the-charter/australian-human-rights-framework.

¹⁹⁸ Supra note 164 (Vic) s 15, available at: https://www.legislation.vic.gov.au/in-force/acts/charter-human-rights-and-responsibilities-act-2006/014; Supra note 164 (ACT) s 16, available at: https://www.legislation.act.gov.au/a/2004-5; Supra note 164 (Qld) s 21, available at: https://www.legislation.qld.gov.au/view/html/asmade/act-2019-005.

¹⁹⁹ Supra note 172, p. 4.

²⁰⁰ Ibid.

²⁰¹ See, e.g., Wainohu v New South Wales (2011) 243 CLR 181, [112]. Unauthorised version available at: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2011/24.html.

²⁰² See, e.g., Fair Work Act 2009 (Cth) s 336, available at: https://www.legislation.gov.au/Details/C2020C00153.

²⁰³ Supra note 164. (Vic) s 15; Supra, note 164 (ACT) s 16; Supra note 164 (Qld) s 22.

²⁰⁴ See, e.g., Criminal Code Act 1995 (Cth), Division 102 Subdivision B. Available at: https://www.legislation.gov.au/Details/C2020C00120.

²⁰⁵ Migration Act 1958 (Cth). Available at: http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/index.html.

²⁰⁶ Freedom of Information Act 1982 (Cth), s 11, https://www.legislation.gov.au/Details/C2020C00110.

²⁰⁷ See, e.g., Freedom of Information Act 1982 (Vic), https://www.legislation.vic.gov.au/in-force/acts/freedom-information-act-1982/107; Government Information (Public Access) Act 2009 (NSW), https://www.legislation.nsw.gov.au/#/view/act/2009/52.

²⁰⁸ Office of the Australian Information Commissioner, ‘Children and Young People: Privacy Rights’. Available at: https://www.oaic.gov.au/privacy/your-privacy-rights/more-privacy-rights/children-and-young-people.

²⁰⁹ Ibid.

²¹⁰ Attorney-General’s Department, ‘Privacy Act Review Report 2022’. Available at: https://www.ag.gov.au/sites/default/files/2023-02/privacy-act-review-report_0.pdf.

²¹¹ Supra note 206, Part IV. Available at: http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/foia1982222/.

²¹² Note: the Cabinet is the executive branch of the Australian government, led by the Prime Minister.

²¹³ Office of the Information Commissioner Queensland, ‘Applications By and For Children’. Available at: https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/receiving-and-assessing-applications/applications-by-and-for-children.

²¹⁴ Ibid.

²¹⁵ Ibid.

²¹⁶ Supra 208, [120].

²¹⁷ Ibid.

²¹⁸ Ibid.

²¹⁹ Supra note 125, p. 32.

²²⁰ Australian Curriculum, Assessment and Reporting Authority, 'Australian Curriculum', Cross-curriculum priorities. Available at: https://www.australiancurriculum.edu.au/f-10-curriculum/cross-curriculum-priorities/.

²²¹ Australian Curriculum, Assessment and Reporting Authority, 'Australian Curriculum', Sustainability. Available at: https://www.australiancurriculum.edu.au/f-10-curriculum/cross-curriculum-priorities/sustainability/.

²²² Ibid.

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