Trends in Human Rights-Based Climate Litigation: Pathways for Litigation in Australia

There is growing recognition of the intersection between human rights and climate change. This is reflected in an increase in climate litigation overseas that seeks to use human rights arguments. While climate litigation overseas has been observed as taking a ‘rights turn’, this same trend has not been followed in Australia. This article examines how and why human rights-based climate litigation in Australia has differed from the overseas context. Through a survey of overseas human rights-based climate litigation based on three types of causes of action: international and regional treaties; constitutional rights; and human rights enshrined in statute, this article demonstrates that these causes of action are limited in availability and scope in the Australian context. To respond to these limitations, this article offers two possibilities for human rights-based climate litigation in Australia: using human rights as a tool for statutory interpretation; and using human rights to understand breaches of other laws, such as planning or environmental laws.