Submission to the Water Resources Strategy Committee

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.