Castan Centre for Human Rights Law
Submission to the Water Resources Strategy Committee regarding the Strategy
Directions Report '21st Century Melbourne: A Water Smart City'
1. Purpose
The purpose of this submission is threefold:
(a) To draw the Committee's attention to the human right to health which
includes a right to an adequate supply of safe and potable water, and
prevention and reduction of the population's exposure to detrimental environmental
conditions that directly or indirectly impact upon human health;
(b) To highlight that Australia, as a party to a number of key international
human rights treaties, has international legal obligations with respect
to health that legislators, policy makers and committee members should
be aware of, and
(c) To suggest to the Committee that adopting a rights-based approach
to the Water Resources Strategy is a necessary precondition to addressing
implementation of the right to health and a core component of this right:
protecting the water supply from 'catchment to tap'.
The preparedness of the Committee to seek community input to the strategy
is welcomed, especially in view of a further core component of the Right
to Health: participation by the community in decisions affecting health
or which have the potential to affect health. Whilst it is right and proper
for people to share responsibility for water use in the form of user pays,
increased awareness of water conservation methods and practice of those
methods, priority must be given to satisfaction of basic needs and protection
of the ecosystem. Beyond these priorities, water users should be charged
appropriately.
2. The right to health in international law
The right to health as a fundamental human right has had formal international
recognition for over 50 years and has been elaborated upon in a number
of international treaties to which Australia is a party. Legislators,
policy makers and program managers should be aware of, and properly take
into account Australia's international human rights obligations as they
relate to health. For the purposes of this consultation, the following
legally binding treaties are of particular relevance.
(a) The Constitution of the World Health Organisation.
The Constitution of the World Health Organisation (WHO) defines health
as 'a state of complete physical, mental and social well-being and not
merely the absence of disease or infirmity', the enjoyment of which 'is
one of the fundamental rights of every human being...'1 Governments are
responsible for the health of their people, which is to be fulfilled through
the provision of adequate health and social measures.2
The Constitution establishes the World Health Assembly (WHA) as the policy
determining body of the WHO.3 The importance of the Constitution and its
relevance to contemporary Australia is that as a member of the WHA, Australia
commits to abide in principle to policy, which has undergone passage through
the WHA. Further, Australia also commits to supply information on health
indicators (including percentages of the population with access to an
adequate supply of potable water) in an annual report to the WHO.
In 1977, the concept and vision of a WHO health policy to deliver health
to all was defined in the Health for All (HFA) campaign at the Thirtieth
WHA. The WHA, decided that the main social target of governments and WHO
in the coming decades should be 'the attainment by all the citizens of
the world by the year 2000 of a level of health that will permit them
to lead a socially and economically productive life'.4 The Declaration
of Alma-Ata,5 adopted in 1978 by the International Conference on Primary
Health Care, jointly sponsored by WHO and UNICEF, stated that primary
health care (PHC) was the key to attaining HFA as part of overall development.
This call for HFA was, and remains fundamentally, a call for social justice.
As part of HFA, health indicators were developed to measure implementation
of the campaign. Member States committed to supplying information on these
indicators on an annual basis. The information requested included data
on the percentage of the population with access to an adequate supply
of potable water.
Australia takes note of and is committed to policy issuing from the WHO.
This is reflected in the 'Australian Drinking Water Guidelines'6 published
by the National Health and Medical Research Council (NHMRC) and based
on the WHO 'Guidelines for Drinking-Water Quality'.7 Australia's commitment
to WHO policy and the HFA campaign is reflected by provision of data on
health indicators in an annual report to the WHO.8
The WHO, calling for a renewal of the HFA policy in 1995, launched 'Health
for all in the twenty-first century'.9 The renewal reaffirms that water
supply is a key environmental determinant of human health as originally
identified in the PHC approach. Also reaffirmed was the emphasis to be
placed on social justice. Equity oriented policies and strategies should
underpin and be incorporated into all aspects of health policy, influencing
how policy choices are made and the interests they serve. Equity requires
that services are provided according to need. An equitable water provision
system ensures universal access to an adequate supply of safe and potable
water. Equity across generations requires that we maintain and protect
the environment, the consideration of which should be incorporated into
decision-making about resource allocation within countries.
(b) The International Covenant on Economic, Social and Cultural Rights
(ICESCR) The ICESCR10 entered into force generally in January 1976, with
its entry into force for Australia in March of that year.
Article 12 of the ICESCR states:
1. 'The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of physical
and mental health.
2. The steps to be taken by the States Parties to the present Covenant
to achieve the full realization of this right shall include those necessary
for:
(a) the provision for the reduction of the stillbirth-rate and of infant
mortality and for the healthy development of the child;
(b) the improvement of all aspects of environmental and industrial hygiene;
(c) the prevention, treatment and control of epidemic, endemic, occupational
and other diseases;
(d) the creation of conditions which would assure to all medical service
and medical attention in the event of sickness'.
Of particular relevance for the purposes of the Committee's decision-making
processes are Article 12.1 and Article 12.2 (b).
(c) The Convention on the Rights of the Child (CRC)
The CRC11 entered into force generally on September 2nd 1990, with its
entry into force for Australia on 16th January 1991. Considered to have
the most expansive definition of the right to health, wording in Article
24.1 is similar to that of Article 12.1 of the ICESCR.
Article 24.1 states:
'States Parties recognize the right of the child to the enjoyment of the
highest attainable standard of health and to facilities for the treatment
of illness and rehabilitation of health. States Parties shall strive to
ensure that no child is deprived of his or her right of access to such
health care services'.
Paragraph 2 is of particular relevance as it sets out in more detail
States Parties' obligations and explicitly embraces the issues of clean
drinking water and environmental pollution.
Article 24.2(c) states:
'To combat disease and malnutrition, including within the framework of
primary health care, through, inter alia, the application of readily available
technology and
through the provision of adequate nutritious foods and clean drinking-water,
taking into consideration the dangers and risks of environmental pollution;'
3. Elaboration of the content of the right to health: General Comment
No. 14
The normative content of the right to health, historically broad in nature,
was further delineated in a General Comment12, which issued from the Committee
on Economic, Social and Cultural Rights (CESCR). The CESCR is the United
Nations body charged with monitoring implementation of the rights contained
in the ICESCR.
The General Comment states that the Committee views the content of article
12.1 to be:
'...an inclusive right extending not only to timely and appropriate
health care but also to the underlying determinants of health, such as
access to safe and potable water and adequate sanitation an adequate supply
of safe food, nutrition and housing, health occupational and environmental
conditions, and access to health-related education and information, including
on sexual and reproductive health. A further important aspect is the participation
of the population in all health-related decision-making at the community,
national and international levels.'13
A right to an adequate supply of safe and potable water is also found
in article 12.2 (b). The CESCR considers this to include:
'...the requirement to ensure an adequate supply of safe and potable
water...the prevention and reduction of the population's exposure to harmful
substances ...other detrimental environmental conditions that directly
or indirectly impact upon human heath.'14
According to the General Comment, the right to health requires that health
facilities, goods and services contain the interrelated and essential
elements of: availability, accessibility (including economic accessibility),
acceptability and appropriateness. Health facilities, goods and services
are defined as including the underlying determinants of health.15 These
in turn include an adequate supply of safe and potable water.
The General Comment further specifies that the right to health is not
to be considered as a right to be healthy, but is a right to control one's
health and body. It is a right to a system of health protection, which
provides equality of opportunity for people to enjoy the highest attainable
standard of health.
Whilst the General Comment is not binding per se, it is recognised that
General Comments carry considerable weight, especially when supported
by inclusion in the CESCR Annual Report and subsequent endorsement of
the report by the General Assembly. The fact that states parties to the
ICESCR are members of the General Assembly, endorsement by the General
Assembly assists international understanding of the normative content
of specific rights.
The relevance of the General Comment for the purposes of this submission
and the Committees consideration is that the General Comment specifies
the obligations contained within the right to health and violations of
the right.
(a) Obligations
Specifically these obligations are: to respect, to protect, to fulfil.16
Contained within the obligation to fulfil, are the obligations of 'facilitation'
and 'provision'. The Committee has also determined that the right to health
contains an obligation to 'promote' due to the particular nature of the
right and the critical importance of health promotion.
To respect:
The obligation 'to respect' requires States parties to the ICESCR to refrain
from interfering directly or indirectly with the enjoyment of the right
to health. For example, to respect the right to health, States would ensure
that all persons had equal access to the underlying determinants of health
including an adequate supply of safe and potable water. Economic hardship
issues would be incorporated into decision-making processes related to
pricing policy to avoid economic inaccessibility for poorer households.
To protect:
The obligation 'to protect' requires States parties to the ICESCR to take
measures that prevent third parties from interfering with Article 12 guarantees.
Accordingly, to protect the right to health a State party would adopt
legislation or take other measures to ensure that environmental practices
conducted by third parties do not violate the right to health. For example,
a State would adopt legislation or take other measures, which regulated
or eliminated actions of third parties, which had a current or future
negative environmental impact on water quality or supply.
To fulfil:
The obligation 'to fulfil' requires State parties to the ICESCR to adopt
appropriate legislative, administrative, budgetary, promotional and other
measures towards the full realisation of the right to health. States must
ensure equal access for all to the underlying determinants of health,
such as an adequate supply of safe and potable drinking water. Accordingly,
to fulfil the right to health a State party would adopt measures against
environmental health hazards. For the purpose of fulfilling the right
to an adequate supply of potable water, a State would formulate and implement
policies aimed at reducing and eliminating pollution of water, air and
soil.
The CESCR is of the opinion that the right to health is to be understood
as a right to the enjoyment of a variety of facilities, goods, services
and conditions necessary for the realisation of the highest attainable
standard of health. The obligation 'to facilitate' contained within the
obligation 'to fulfil' requires that positive measures be adopted that
enable and assist individuals and communities to enjoy the right to health.
States are also obliged 'to provide' means to assist individuals or a
group who are unable, for reasons beyond their control, to realise that
right themselves by the means at their disposal. 'To promote' obliges
States to undertake actions that create and maintain the health of the
population. Such obligations include: fostering recognition of factors
favouring positive heath results, for example, provision of information
on water quality; dissemination of appropriate information relating to
the availability of services; supporting people in making informed choices
about water conservation.
(b) Violations of the right to health17
Violations of the right to health can occur through the direct action
of States or other entities that are insufficiently regulated by States.
Violations can also occur through omission or the failure of States to
take necessary measures arising from the obligations to respect, protect
and fulfil.
To respect:
Violations of the obligation 'to respect' include development of inequitable
pricing policies for water consumption, which subsequently resulted in
economic inaccessibility for poorer households to an adequate supply of
potable water.
To protect:
Violations of the obligation 'to protect' follow from the failure of a
State to take all necessary measures to safeguard persons within their
jurisdiction from infringements of the right to health by third parties.
Violation of this obligation would include an omission or a failure to
sufficiently regulate the activities of corporations to prevent them from
violating the right to health of others. Such violation includes the failure
to protect consumers from practices detrimental to health via enactment
or enforcement of laws to prevent the pollution of water by extractive
industries. Forest industry activities in catchment areas clearly fall
within this obligation.
To fulfil:
Violations of the obligation 'to fulfil' occur through a States' failure
to take all appropriate steps to ensure the realisation of the right to
health of the population. For example, the category includes the failure
to take measures to reduce the inequitable distribution of health facilities,
goods and services, which as indicated above, include an adequate supply
of potable drinking water and is relevant to user pays. Violation would
also include non-adoption of measures to reduce and subsequently eliminate
environmental hazards, which pollute the water supply.
4. Selection of a strategy
Relevant for the purposes of the submission is economic accessibility
(that is affordability) and environmental sustainability. Priority must
be given to satisfaction of basic needs and protection of the ecosystem.
The international documentation referred to above confirms that water
supply is a key environmental determinant of human health and that equity
in decision-making should be a priority. Equity oriented policies and
strategies should underpin and be incorporated into all aspects of health
policy, influencing how policy choices are made and the interests they
serve.
(a) Economic Accessibility
The concerns of the Committee to ensure a continued supply of potable
water to all are applauded. The submission acknowledges that future demand
reduction by consumers can be achieved through behavioural change, pricing
and the use of water efficient appliances and systems. It is appropriate
that the community takes some responsibility in guaranteeing a continued
supply of potable water to all.
However, emphasis placed on reducing demand raises concerns of economic
accessibility. Of particular concern are the following:
* introduction of compulsory use of AAA shower roses (commencing 2005),
and AAAA washing machines (commencing 2010),
* increasing volumetric charges on water bills at the next pricing review/staged
implementation, and
* introduction of seasonal pricing on water bills at the next pricing
review/staged implementation.
These consumer demand reduction strategies are included in most, if not
all of the suggested Scenarios, including the Committees' preferred Scenario
5. In the presence of continued logging in catchment areas, the emphasis
on consumer demand reduction raises issues of equity.
Payment for services related to the underlying determinants of health,
whether privately or publicly provided, must be based on the principle
of economic accessibility, the core component of which is equity, ensuring
that these services are affordable for all. Equity demands that poorer
households should not be disproportionately burdened with expenses as
compared to richer households. Adoption of a scenario, which results in
an unfair economic burden placed on the socially disadvantaged, has the
potential to violate the obligation to respect and the obligation to fulfil
the right to health.
(b) Environment
Environmental sustainability is, of itself, a core component of the right
to health. Further, equity across generations requires that we maintain
and protect the environment. Environmental degradation of catchment areas
via logging practices negatively impacts on both of these considerations
by polluting the water supply and continuing to damage the catchment area
and surrounding ecosystem.
The Australian Drinking Water Guidelines18 (ADWG) indicate that the physical
and chemical quality of drinking water may be affected by the presence
of inorganic chemicals. Their presence may result from catchment land
use activities leading to exacerbation of natural processes.19 The ADWG
recognise that intelligent management of land use and water resources
in catchments is essential to a safe water supply,20and consider that
activities, which have the potential to pollute, should be controlled
or where feasible, excluded from the catchment.21
Research has established that forestry practices contribute significantly
to the sedimentation of streams and lakes, with roading having the most
severe effect on sediment levels22. This was subsequently corroborated
by an industry report.23 Research also confirms that logged areas have
a 50% reduced water yield with length of logging rotation having a particular
effect on the water yield of a catchment24. Logging rotation recommended
in the Comprehensive Regional Assessment25 is 80-120 years and not 60
years or less as currently occurs in the Thompson and Yarra Tributary
catchments. Given the results of these studies, logging in catchment areas
clearly falls within human activities 'which may pollute' contemplated
by the ADWG.26
Research establishes that logging and associated roading can have adverse
impacts on water quality and quantity, core components of the right to
health. Pursuant to the obligations 'to protect' and 'to fulfil' contained
within the right to health, and the principle of equity across generations,
authorities are under an obligation to adopt legislation or take other
measures to ensure that environmental practices conducted by third parties
do not have a current or future negative impact on water quality or supply.
Accordingly, Authorities are under an obligation to ensure forest industry
activities in catchment areas do not have such an impact. Failure to do
so is a violation of the right to health.
Pursuant to the obligation to fulfil, Authorities are also required to
adopt measures against environmental health hazards. For this purpose
they should formulate and implement policies aimed at reducing and eliminating
pollution of air, water and soil. Clearly a failure to adopt measures
aimed at reducing and eliminating the negative effects of logging in catchment
areas has the potential to be a violation of this obligation and hence,
a violation of the right to health.
5. Conclusion
Australia is recognised as having a high standard of health and it is
important that we maintain that standard. The development of a long-term
plan to ensure a safe and reliable supply of water for the Melbourne area
in consultation with the community and stakeholder groups is acknowledged
and welcomed. At the same time, it is critical we do not lose site of
the human rights implications of policies which impact on public health
and human activity which has the potential to negatively impact on the
environment.
Whilst it is recognised that people have a responsibility to the environment
and should become aware of and practice water conservation methods, a
responsibility to protect the water supply also lies with government and
industry. Cessation of logging in catchment areas should also be considered
in conjunction with community responsibility for water conservation.
In determining which strategy to adopt, this submission recommends the
Committee take into consideration the connections between health and the
environment recognised in Australia's international human rights obligations
referred to in the submission, together with the obligations to ensure
equity in decision making when determining user pays fees and charges.
For authorities to meaningfully implement obligations pursuant to international
human rights treaties, it is critical that legislators, policy makers
and committee members are aware of and give due consideration to the rights
contained within those treaties.
* Submission prepared by Helen Potts on behalf of the Castan Centre for
Human Rights Law, Monash University.
1Constitution of the World Health Organisation as adopted by the International
Health Conference, New York, 19-22 June, 1946; signed on 22 July 1946
by the representatives of 61 States (Official Records of the World Health
Organisation, no. 2, p. 100) and entered into force on 7 April 1948 http://www.who.int
2 Ibid @ Preamble.
3 Constitution of the World Health Organisation, Chapter 5, Article 18.
http://www.policy.who.int
4 World Health Assembly Resolution 30.43 http://www.who.int .
5 Declaration of Alma-Ata. International Conference on Primary Health
Care, alma-Ata, USSR, 6-12 September 1978. http://www.who.int
6 Australian Drinking Water Guidelines, National Health and Medical Research
Council, updated September 2001. http://www.health.gov.au:80/nhmrc/publications/synopses/eh19syn.htm
7 Guidelines for Drinking-Water Quality, World Health Organisation, Geneva,
1993. http://www.who.int
8 Australia's Health http://www.who.wpro.int
9 WHA Resolution 48.16. WHO response to global change: renewing the health-for-all
strategy, Forty-eighth World Health Assembly, Geneva, 1-12 May 1995. Resolution
48.16 requests the Director-General 'to take the necessary steps for renewing
the health-for-all strategy together with its indicators, by developing
a new holistic global health policy based on the concepts of equity and
solidarity, emphasising the individual's, the family's and the community's
responsibility for health, and placing health within the overall framework
of development'. http://www.who.int .
10 International Covenant on Economic, Social and Cultural Rights, G.A.
res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316
(1966), 993 U.N.T.S. 3.
11 Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N.
GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force
Sept. 2, 1990.
12 Committee on Economic, Social and Cultural Rights, General Comment
14, The right to the highest attainable standard of health, U.N. Doc.
E/C.12/2000/4. http://www1.umn.edu/humanrts/gencomm/escgencom14.htm
13 Ibid @ paragraph 11.
14 Ibid @ paragraph 15.
15 Ibid @ note 6.
16 Ibid @ Section II, paragraphs 34-37.
17 Ibid @ Section III, paragraphs 46-52.
18 Australian Drinking Water Guidelines, (n 6).
19 Ibid @ Chapter 3, p 2.
20 Ibid @ Chapter 5, p 1.
21 Ibid @ Chapter 5, p 2.
22 R B Grayson, S R Haydon, M D A Jayasuriya and B L Finlayson, 'Water
quality in mountain ash forests - separating the impacts of roads from
those of logging operations' (1993) 150 Journal of Hydrology 459.
23 J Croke, P Wallbrink, P Fogarty, P Hairsine, S Mockler, B McCormack
and J Brophy, 'Managing Sediment sources and movement in forests: The
forest industry and water quality report.' Industry Report 99/11 for Catchment
Hydrology (1999).
24 Vertessy, R.; Watson, F.; O'Sullivan, S.; Davis, S.; Campbell, R.;
Benyon, R., and Haydon, S., 1998. 'Predicting water yield from mountain
ash forest catchments', Cooperative Research Centre for Catchment Hydrology
Industry Report, Report No 98/4, Monash University; 1998.
25 Ibid @ p 22
26 Australian Drinking Water Guidelines (n 6), Chapter 5, p 2.
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