By Nathan Shannan, LLB (Hons) and BA Exchange Student from Monash University n.m.shannan student.rug.nl

It is easy to romanticise the soft glow of woodfire heaters with warm feelings of cosiness and comfort. Yet, hiding under this nostalgia, the associated smoke is of serious concern. Alarmingly, a recent study in Australia estimates that in a single year, 728 deaths were attributable to fine particulate matter from woodfire heaters.^[1] It is also the nation’s largest source of pollution in many areas.^[2] This invites discussion about the adequacy of Australia’s regulatory response and its alignment with global health laws. This post examines whether Australia is fulfilling its obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as additional agreements that underscore the necessity to mitigate air pollution to safeguard health.

Breathing in Danger

Woodfire heaters contain a cocktail of carcinogenic chemicals, including particulate matter (PM2.5), carbon monoxide, carbon dioxide and nitrogen oxides.^[3] Not only does woodfire usage contribute to 60% of fine particle pollution,^[4] there is correlation between ingestion of said substances and decreased lung capacity, increased risks of heart attacks and oesophageal cancer.^[5] Producing as many chemicals within an evening as 250,000 cigarettes,^[6] vulnerable groups, including those with asthma, the pregnant, elderly and children, are disproportionately affected.^[7] Simultaneously, the combustion of wood releases black carbon, a potent climate pollutant fuelling climate change.^[8] Thus, it is evident that pollutant smoke is incongruous to health from both a biological and environmental perspective.

International Obligations

As a signatory to the ICESCR, Article 12 requires Australia to take proactive measures towards the highest attainable standards of physical and mental health, including those arising from environmental hazards. The United Nations Committee on Economic, Social and Cultural Rights (CESCR) clarifies in General Comment No. 14 that the right to health extends to the ‘underlying determinants’ of health, and encompasses ‘healthy environmental conditions’.^[9] Furthermore, the right to life, contained in Article 6 of the International Covenant on Civil and Political Rights (ICCPR),^[10] underscores the unacceptability of the excess 700 deaths to woodfire smoke each year. The right also includes protection from foreseeable threats, such as environmental degradation and pollution.^[11] Thus, both the ICESCR and ICCPR require Australia to prioritise the health of vulnerable populations, including children, the elderly, and low-income households, who are in-turn disproportionately affected by woodfire pollution. The right to life and right to health are also interconnected with environmental international frameworks,^[12] such as the United Nation Human Rights Council resolutions and the Paris Agreement,^[13] requiring Australia to address pollution and climate change to protect human life and wellbeing.

Australia’s Case

Australia’s fragmented regulatory framework leaves vulnerable populations, particularly those in low-income or rural areas, disproportionately exposed to the dangers of woodfire emissions. Under the Australian Constitution,^[14] the States retain residual plenary power over woodfire regulations, although federal and local governments may also intervene.^[15] This division of law-making power has led to inconsistent health and environmental approaches, undermining the nation’s ability to meet its obligations under Article 12 of the ICESCR. Concerningly, such inconsistency exacerbates inequalities, as vulnerable populations habitually reside in areas with insufficient regulatory protections. For example, rural areas more commonly utilise woodfire heaters,^[16] resulting in residents’ prolonged and disproportionate exposure to toxic emissions, thus violating the right to health, and in fatal cases, life. Against this backdrop, Australia's domestic air quality standards are more lenient than the World Health Organization (WHO) guidelines.^[17] The Australian National Environment Protection Measure mandates maximum annual PM2.5 particulate levels of 8 µg/m³,^[18] in contrast to the WHO, which recommends a maximum of 5 µg/m³.^[19] Thus, although the right to health requires Australia to implement proactive measures to prevent and mitigate environmental health risks, the lenient air quality standards (in comparison to the WHO Guidelines) undermines this requirement. Indeed, the divergence in standards directly contradicts the CESCR's encouragement to align national regulations with international benchmarks so to ensure healthy environmental conditions.^[20] The misalignment also arguably constitutes a breach of Article 12’s obligation to ensure ‘healthy environmental conditions’. Moreover, the disproportionate effects on vulnerable populations contravenes the principle of non-discrimination inherent in both the ICESCR and ICCPR.^[21] At the same time, the persistent use of woodfire heaters undermines Australia’s obligations under the Paris Agreement; the continued release of black carbon from wood combustion contributes significantly to global warming, conflicting with Australia’s obligation to reduce greenhouse gas emissions and safeguard environmental health.^[22]

Moving Forward

Promisingly, the Australian Capital Territory recently announced it would phase-out woodfire heaters by 2045, in recognition of the harmful health and environmental impacts of woodfire emissions.^[23] While a step in the right direction and a precedent for other Australian jurisdictions to follow, the 21-year window enables the inevitability of continued fatalities and illness to fester. To recognise that it must proactively take steps within available resources to realise the right to health,^[24] Australia must immediately adopt a unified and proactive regulatory framework that prioritises health and human rights with respect to air quality. This should begin with air quality standards in line with WHO recommendations, creating a consistent national baseline. Additionally, the Federal government should earmark subsidies or similar fiscal incentives to citizens, so to encourage the transition from woodfire heaters to green heating technologies.^[25] This measure should prioritise the vulnerable populations in rural and low-income areas and therefore mitigate the inequalities they currently are subjected to. By adopting these proposals, Australia can better fulfil its international obligations under the ICESCR and ICCPR and demonstrate global leadership in addressing health, human rights, and environmental sustainability with respect to the dangers of wood fire heaters.

[1] Nicolas Borchers-Arriagada et al., 'The Mortality Burden Attributable to Wood Heater Smoke Particulate Matter (PM₂.₅) in Australia' (2024) 921 Science of the Total Environment <https://doi.org/10.1016/j.scitotenv.2024.171069>  accessed 1 December 2024.

[2] Richard A Broome et al., 'The Mortality Effect of PM₂.₅ Sources in the Greater Metropolitan Region of Sydney, Australia' (2020) 137 Environment International <https://doi.org/10.1016/j.envint.2020.105429> accessed 1 December 2024.

[3] Nicolas Borchers-Arriagada and others, ‘Health Impacts of Ambient biomass Smoke in Tasmania, Australia’ (2020) 17(9) International Journal of Environmental Research and Public Health 3264
<https://doi.org/10.3390/ijerph17093264> accessed 3 December 2024.

[4] Asthma Australia, Woodfire Heaters and Health Survey: Key Findings Report (2021) <https://asthma.org.au/wp-content/uploads/2021/07/Asthma-Australia-Woodfire-Heaters-and-Health-Survey-Report-v2.pdf> accessed 13 December 2024, 1.

[5] Department of Climate Change, Energy, the Environment and Water, Wood Heaters and Woodsmoke (2023)
<https://www.dcceew.gov.au/environment/protection/air-quality/woodheaters-and-woodsmoke> accessed 15 December 2024.

[6] Australian Air Quality Group, Inquiry into the Health Impacts of Air Pollution in Victoria: Submission No 75 (23 April 2021)
<https://www.parliament.vic.gov.au/4ae9a6/contentassets/6e874e8994eb4d7a91bd9a767b7b7f4c/submission-documents/075_2021.04.23---aaqg.pdf> accessed 10 December 2024, 1.

[7] Alison Branley, The Killer We've Invited into the Lounge Room (ABC Radio, 20 June 2021) <https://www.abc.net.au/radio/programs/backgroundbriefing/the-killer-weve-invited-into-the-lounge-room/13391884> accessed 15 December 2024.

[8] A Kashaf Arshad and others, 'Air Pollution and Climate Change as Grand Challenges to Sustainability' (2024) 928 Science of the Total Environment 172370, 2.

[9] UN Committee on Economic, Social and Cultural Rights (ICESCR Committee), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), E/C.12/2000/4, 2000.

[10] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) UNGA Res 2200A (XXI) (16 December 1966), 999 UNTS 171, art 6.

[11] UN Committee on Human Rights (Human Rights Committee), General Comment No. 36: The Right to Life (Art. 6), CCPR/C/GC/36.

[12] UN Human Rights Council Resolution 48/13 (2021) 'The Human Right to a Clean, Healthy, and Sustainable Environment' UN Doc. A/HRC/RES/48/13; UN Human Rights Council Resolution 16/11 (2011) 'Human Rights and the Environment' UN Doc. A/HRC/RES/16/11.

[13] Paris Agreement, opened for signature 22 April 2016, entered into force 4 November 2016, UN Doc. FCCC/CP/2015/10/Add.1, preamble.

[14] Commonwealth of Australia Constitution Act 1901 (Cth).

[15] The Commonwealth Parliament can intervene in the State legislative sphere if legislating under the ‘external affairs’ head of power contained in section 51(xxix) of the Commonwealth of Australia Constitution Act 1901 (Cth). This allows the Federal Government to operate in an exclusive area of State regulation, provided that its operative purpose is to uphold the provisions of a treaty, such as the ICESCR: see Commonwealth v Tasmania (1983) 158 CLR 1 (Gibbs CJ, Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ). Moreover, State Governments may delegate law-making power to local councils as outlined in State legislation. See, for example, Local Government Act 2020 (Vic).

[16] Lygia Romanach and Elisha Frederiks, Residential Firewood Consumption in Australia (Report prepared for the Department of Industry, Science, Energy and Resources, CSIRO, May 2020) < https://near.csiro.au/public/assets/3da883f7-8dea-4eab-9025-1dddd3a38e2b/D11_1_4.pdf> accessed 15 December 2024.

[17] Lung Foundation Australia, 'WHO Clean Air Guidelines: A Clarion Call for Action to Protect Health' (Lung Foundation Australia, 23 September 2021)
<https://lungfoundation.com.au/news/who-clean-air-guidelines-a-clarion-call-for-action-to-protect-health/> accessed 16 December 2024.

[18] Department of Climate Change, Energy, the Environment and Water, Particulate Matter (PM10 and PM2.5) (Department of Climate Change, Energy, the Environment and Water, 2024)
<https://www.dcceew.gov.au/environment/protection/npi/substances/fact-sheets/particulate-matter-pm10-and-pm25> accessed 19 December 2024.

[19] World Health Organization, WHO Global Air Quality Guidelines: Particulate Matter (PM₂.₅ and PM₁₀), Ozone, Nitrogen Dioxide, Sulfur Dioxide and Carbon Monoxide (World Health Organization 2021)
<https://iris.who.int/bitstream/handle/10665/345329/9789240034228-eng.pdf?sequence=1> accessed 15 December 2024.

[20] UN Committee on Economic, Social and Cultural Rights (ICESCR Committee), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), E/C.12/2000/4, 2000.

[21] Committee on Economic, Social and Cultural Rights, General Comment No 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2) (2 July 2009) UN Doc E/C.12/GC/20, para 8; Human Rights Committee, General Comment No 18: Non-Discrimination (10 November 1989) UN Doc HRI/GEN/1/Rev.1, para 10; Special Rapporteur on Extreme Poverty and Human Rights, Report of the Special Rapporteur on Extreme Poverty and Human Rights (11 October 2019) UN Doc A/74/48037, paras 16–20.

[22] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS 54113, art 4(2).

[23] ACT Government, 'ACT Government Moves to Phase Out Wood Heaters by 2045' (ACT Government Media Release, 7 September 2023)
<https://www.cmtedd.act.gov.au/open_government/inform/act_government_media_releases/vassarotti/2023/act-government-moves-to-phase-out-wood-heaters-by-2045> accessed 17 December 2024.

[24] Office of the United Nations High Commissioner for Human Rights and World Health Organization, The Right to Health: Fact Sheet No. 31 (UN OHCHR and WHO, Geneva 2008)
<https://www.ohchr.org/sites/default/files/Documents/Publications/Factsheet31.pdf> accessed 19 December 2024, 5.

[25] The Australian Capital Territory previously introduced a rebate scheme for woodfire heaters, which was endorsed by the Victorian branch of the Australian Medical Association and has seen over 1000 woodfire heaters removed: see Zach Hope, 'AMA Fires Up Over Wood Heater Buy-Back Scheme' The Age (13 June 2020) <https://www.theage.com.au/national/victoria/ama-fires-up-over-wood-heater-buy-back-scheme-20200611-p5528k.html> accessed 19 December 2024.