Jackson, Lauren --- "Social Rights as Human Rights: Discussion of the Legal Protection of Socio-Economic Rights in Australia" [2016] PerIntLawJl 8; (2016) 1 Perth International Law Journal 72

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SOCIAL RIGHTS AS HUMAN RIGHTS: DISCUSSION OF THE LEGAL PROTECTION OF SOCIO-ECONOMIC

RIGHTS IN AUSTRALIA

Lauren Jackson*

Socio-economic rights are positive rights that require positive obligations. Governments, in particular the Australian Government, have long battled the enforceability of these rights out- lined in the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is owing to polycentric issues which arise, the competency of courts, and the progressive timeframe of the ICESCR. However, the success of enforcing these positive rights in the South African Constitution and the fragility of current Australian domestic protections provide counter-arguments in support of their justiciable enforcement. Consequently, owing to the severity of the complications which can occur if socio-economic rights are entrenched, Aus-

tralia should not constitutionally enforce them.

I IntroductIon

‘A human right should...be universal in the sense that it can be claimed by all.’¹ Al- though the International Covenant on Economic, Social and Cultural Rights (ICESCR)² was implemented over 30 years ago and is now ratified by 167 nations, the classification of socio-economic rights as judicially enforceable human rights remains questioned.³ Cass Sunstein, in his article ‘Against Positive Rights’ argues that there is a difference in what society provides and what a constitution guarantees, and it should remain this way or risk having the constitution becoming meaningless.⁴ What is being referred to is the difficulty of constitutional entrenchment of socio-economic rights due to the positive obligations required, and the complications that can develop from such protection.⁵ This claim has footings in polycentric issues, the competency of the court and the progressive timeframe of the ICESCR. However, arguments that support the legal protection of so- cio-economic rights point to the success of the South African Constitution, the fragility

* Lauren Mae Jackson, Bachelor of Science (Major in Psychological Science, and Law & Society) Student (The University of Western Australia). Responsibility for the text lies with this author and all errors are hers alone.

¹ Rebecca Young, ‘Justiciable Socio-Economic Rights? South African Insights into Australia’s Debate’ [2008] AUIntLawJl 9; (2008) 15 Australian International Law Journal 181, 194.

²  International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

³  Henry Steiner and Philip Alston, ‘International Human Rights in Context: Law, Politics and Morals’ (Clarendon Press, 1996).

⁴  Cass Sunstein, ‘Against Positive Rights’ (1993) 2(1) East European Constitutional Review 35.

⁵  David Walker, ‘The Oxford Companion to Law’ (Clarendon Press, 1980).

of current domestic protections and the ease in which some positive obligations of civil and political rights are already implemented. Ultimately, given the difficulties which can arise from constitutionally entrenching socio-economic rights, they should not be em- bedded in Australian law. However, this does not mean the nation should be complacent in its protection of socio-economic rights. Instead, human rights as a whole should be placed with higher regard by policy makers and enforcers, so that Australia can continue being a nation which maintains its virtuous human rights record.

II PosItIve and negatIve rIghts

The Universal Declaration of Human Rights⁶ differs from other similar pledges in the past, in that it includes the idea of social rights. ⁷ It covers entitlements such as an ad- equate standard of living, health and education. These types of rights are also referred to as ‘economic and social rights.’⁸ When Sunstein refers to ‘what a decent society should provide’⁹ he is referring to these socio-economic rights. Australia has specifical- ly committed itself to its provisions by ratifying the ICESCR.¹⁰ Parallel to this, is the International Covenant on Civil and Political Rights (ICCPR).¹¹ This separation draws attention to the idea of positive and negative rights, which ‘mirrors the traditional divi- sion between civil and political rights... and socio-economic rights’.¹² Socio-economic rights in the ICESCR need positive action to be implemented, and require the state to promote the ‘well-being of its citizens, rather than refraining from acting’.¹³ On the

other hand, negative rights are essentially the freedom from interference.¹⁴ The ICCPR _{largely contains negative rights. These include} central freedoms such as the freedom of speech, religion and arbitrary ^arrest in the ICCPR, as these rights require the state to simply refrain.¹⁵

⁶  Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948).

⁷  James Nickel, ‘Making Sense of Human Rights’ (Blackwell Publishing, 2^nd ed, 2007) ch 9.

⁸  Ibid.

⁹  Sunstein, above n 4.

¹⁰  ICESCR, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

¹¹  International Covenant on Civil and Political Rights (‘ICCPR’), opened for signature 16 December 1966, 99 UNTS 171 (entered into force 23 March 1976).

¹²  Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, 2008) 65, 69.

¹³  Ran Hirschl ,’“Negative” Rights vs. “Positive” Entitlements’ (2000) 22 Human Rights Quarterly 1061, 1071.

¹⁴  Ibid.

¹⁵  Ibid.

III current socIo-economIc rIghts ProtectIons

A Australian Constitutional Guarantees

The Australian Constitution (Constitution) does not explicitly protect social rights. However, it does protect a handful of basic freedoms that impose negative obligations. The limited rights outlined in the Constitution include, among others, the right to trial by jury on indictment and freedom of religion.¹⁶ These simply require the state to refrain from acting so as not to impede. Additionally, there are implied freedoms and limits embedded within the Constitution.¹⁷ Included is, for example, the separation of judicial power from executive and legislative power. This separation is a liberal safeguard to protect from judicial overpowering in all affairs of the State.¹⁸ The lack of protection of positive rights in the Constitution reflects a strong, liberal standpoint in regards to state power. If socio-economic rights are embedded in the Constitution, it would conflict the ideal that the state refrains from impeding in public life.

B Statutory Protection

In addition to the Constitution, many human rights are protected and enforced in other ways at a domestic level.¹⁹ Given that Australia does not have a Bill of Rights, human rights are protected under statutes.²⁰ Australia has ratified seven of the nine major inter- national human rights treaties including the ICCPR and ICESCR.²¹ These are enforced at the domestic level in Acts such as the Racial Discrimination Act 1975 (Cth), and the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC).²² Conversely, while many rights of the ICCPR are protected under HREOC, the rights outlined in the ICESCR were omitted from the Act’s definition of ‘human rights.’²³ Al- though Australia has largely implemented most human rights protections into its legisla-

¹⁶  Julie Debeljak, ‘Does Australia Need a Bill of Rights?’ in Paula Gerber and Melissa Castan (eds), Contem- porary Perspectives on Human Rights Law in Australia (Thomson Reuters (Professional) Australia Limited, 2013) 37, 39.

¹⁷  Ibid., 40.

¹⁸  Joseph Katz, ‘Why Libertarians Should Reject Positive Rights’ (2009) 1(6) Libertarian Press 1.

¹⁹  Ibid.

²⁰  Ibid.

²¹  Ibid., 41.

²²  Ibid.,42

²³  Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 3, sch 2.

tion, there is a gap reflecting socio-economic rights, decreasing its justiciability.

C Victorian Charter and Human Rights Act

Australia’s political agenda has rarely stressed the importance of the rights under the ICESCR. This is evident when analyzing the Charter of Human Rights and Responsibil- ities Act 2006 (Victoria)²⁴ (Victorian Charter) and the Human Rights Act 2004 (ACT). Aside from the right to property, the Victorian Charter fails to include socio-econom- ic human rights.²⁵ Although 41 per cent of submissions to the consultation committee supported their inclusion,²⁶ the government standpoint was that socio-economic rights should be absent from the political realm.²⁷ The reasoning was to focus on ‘democratic rights with broad support that applied equally to everyone.’²⁸ Similarly, there were rec- ommendations from the consultative committee in the ACT to include socio-economic rights.²⁹ However, the final Human Rights Act did not accept them. Again, this adds to the already established view regarding the lack of justiciability of socio-economic rights in Australian law.

D Enforcement at an International Level

The Committee on Economic, Social and Cultural Rights (CESCR) takes an active international stance in enforcing the rights under the ICESCR. States signatory to any human rights treaty are to submit reports outlining their commitments. These are then scrutinised by several overriding bodies on whether these commitments have been met.³⁰ Specifically, the CESCR will ask up-front questions to nations regarding the con- tent of their reports, and initiate confrontational dialogue when they believe a country has fallen below its socio-economic commitments.³¹ The idea being that the country, due to international scrutiny, then feels obliged to act for fear of being shunned by the

²⁴  Charter of Human Rights and Responsibilities Act 2006 (Vic).

²⁵  Human Rights Consultation Committee (Victoria), Rights, Responsibilities and Respect (2005) at [2.2.2] (‘Victorian Report’).

²⁶  Ibid.

²⁷  Victorian Department of Justice, Human Rights in Victoria – Statement of Intent (May 2005).

²⁸  George Williams, ‘Victorian Charter: Origins and Scope’ (2006) 30 Melbourne University Law Review

880, 896.

²⁹  ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (2003) at [5.33]–[5.41] (‘ACT Report’).

³⁰  Young, above n 1.

³¹  Ibid.

global community. Although recommendations are not legally enforceable, this watch- ful body provides a way to help in protecting social, economic and cultural rights at an international level.³² However, there are shortfalls in the realities of this process. States are usually slow to comply with reporting obligations, and even where they do report there may be errors and omissions.³³ Therefore, whilst there are socio-economic right protections at the international level, the enforceability of these protections is limited.

Iv Issues WIth socIo-economIc rIghts In constItutIon

A Polycentric Problem

It is argued that economic and social rights should not form part of Australian Con- stitutional law, as courts cannot adequately rule on them. As stated, socio-economic rights impose a positive obligation on the State.³⁴ Socio-economic rights require ex- penditure, whereas civil and political rights are relatively free. If Parliament rules to constitutionally enforce socio-economic rights, judges will then no-doubt be faced with cases in which they are forced to rule whether those rights have been upheld.³⁵ As such, questions arise on the competency of the courts to rule on such matters. For example, to provide the socio-economic right of healthcare, the nation must provide funding. If a judge then rules in a case for more spending, in an area such as healthcare (specifically the development of another hospital), and this ruling ‘fails to raise revenues,’ this can have the impact of increasing the entire populations’ taxes.³⁶ In other words, if a judge rules that a particular person is entitled to special treatment, this will be at the cost of another. As such, a chain of events occurs. This is what is at the core of the ‘polycentric’ problem, which quite literally means ‘having many centres’.³⁷ One factor alone involves a large number of interacting considerations and an unforeseen contagion effect can arise.³⁸ Such a process is hard to gain support for in a nation post-Global Financial Cri-

³²  Ibid.

³³  Audrey Chapman, ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23, 28.

³⁴  Hirschl, above n 10.

³⁵  Ibid.

³⁶  Ibid.

³⁷  Richard Wesley, ‘If Legislators Fail, Who is There to Follow?’ 68 Albany Law Review 704, 710.

³⁸  Hirschl, above n 10.

sis.³⁹ This has been evident in the challenges of gaining support for ‘Obama-Care’⁴⁰ and the current pensions debate in Australia. Thus, it is argued that it is not appropriate for

³⁹  John Burgess and Julia Connell, ‘The Asia Pacific Region: Leading the Global Recovery Post-GFC?’ (2013) 19(2) Asia Pacific Business Review 279.

⁴⁰  Howard Fineman, ‘Obama’s Health-Care Gamble’ (2010) 155(2) Newsweek 21.

courts to rule on positive obligations.

B Incompetent and Illegitimate Court System

By embedding what a ‘decent society ensures’⁴¹ into domestic law, the risk of an illegit- imate court is posed. Judges are not trained on how to distribute funds and resources.⁴² If they partake in ruling on socio-economic rights they will be displaying judicial activ- ism: the ‘conscious development of the common law according to the perceptions of the court as to the direction the law should take.’⁴³ The legitimacy of judicial activism alters according to context.⁴⁴ Judges will normally be ill equipped to create policy.⁴⁵ They are not politically trained nor do they have an extensive knowledge of national spending, and as such cannot make legal claims without appearing illegitimate and incompetent.⁴⁶ This issue is highlighted in the example in the preceding paragraph. Additionally, to the public, controversial rulings such as Mabo v Queensland 1992,⁴⁷ although perfectly le- gitimate, can be seen as judges making decisions that are outside the scope of the courts. And if presented with socio-economic rights, their judicial activism can be viewed as leaning into political territory (e.g. allocating funding), and this be regarded as illegiti- mate. Furthermore, it raises the issue of a lack of separation of powers if judges partake in policy making, and impinges on liberal values of absence from state interference.⁴⁸ By leaving judges to decide on positive obligations, it reserves ‘the right to blame the courts if their view is not ultimately endorsed in an opinion.’⁴⁹

C Progressive Timeframe and Necessity

The ICCPR and ICESCR impose different timeframes of implementation, which may pose implications for the domestic enforcement of socio-economic rights. An important

⁴¹  Sunstein, above n 4.

⁴²  Ibid.

⁴³  Greg Craven, Reflections on Judicial Activism: More in Sorrow than in Anger (24 October 1997) Samuel Griffith Society <http://www.samuelgriffith.org.au/papers/html/volume9/v9chap9.htm> .

⁴⁴  Ibid.

⁴⁵  Craven, above n 35.

⁴⁶  Ibid.

⁴⁷  Mabo v Queensland (No 2) (“Mabo case”) [1992] HCA 23; (1992) 175 CLR 1.

⁴⁸  Craven, above n 38.

⁴⁹  Wesley, above n 31.

distinction is the difference in wording of Article 2(1). In the ICCPR, anyone who rati- fies the Covenant accepts ‘to respect and to ensure to all individuals within its territory

... the rights recognized in the present Covenant.’⁵⁰ This contrasts to that of the ICE- SCR in that each State Party must ‘take steps ... to achieving progressively’ its rights commitments.⁵¹ The rationale was that civil and political rights could be implemented immediately, whereas economic and social rights could only be recognised ‘progres- sively’. Thus the ICESCR is more loosely defined as aspirations and ‘desirable goals but not full-fledged rights.’⁵² This difference in time frame further adds to purport the illegitimacy of its justiciable nature, as it is indicative of a difference in necessity for socio-economic rights.

D Specificity of Socio-Economic Rights

An argument against embedding socio-economic rights into Australian law is that they are only available to certain types of people.⁵³ For example, the right to paid leave is only available to those people who are employed and cannot be applied more generally to the population.⁵⁴ Hence giving reason to why only those rights outlined in the ICCPR are recognised constitutionally, as they can be applied universally. For example, it is possible for everyone to have a fair trial and this is not distinguished on a person-based process like the ICESCR. Additionally, by taking examples of specific socio-econom- ic rights, it is easy to acknowledge the difficult nature of enforcing particular rights. For example, Article 7(d) of the ICESCR calls for ‘periodic holidays [from work] with pay.’⁵⁵ In this sense, if judicially enforced in Australia, it can be punishable for not providing paid holidays.⁵⁶ Thus, according to James Nickel, human rights shouldn’t strive for a flawless society; they should be ‘concerned with ensuring the conditions

... of a minimally good life.’⁵⁷ When this is applied to socio-economic rights, it is rea- soned these protections should instead be left up to ‘democratic decision-making.’⁵⁸ By constitutionalising ‘everything to which a decent society commits itself,’⁵⁹ Australian

⁵⁰  ICCPR, opened for signature 16 December 1966, 99 UNTS 171 (entered into force 23 March 1976).

⁵¹  ICESCR, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

⁵²  Nickel, above n 7.

⁵³  Maurice Cranston, ‘What Are Human Rights?’ (Basic Books, 1973).

⁵⁴  Ibid.

⁵⁵  ICESCR, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

⁵⁶  Nickel, above n 7.

⁵⁷  Ibid.

⁵⁸  Ibid.

⁵⁹  Sunstein, above n 4.

constitutional law faces the risk of being undermined and chastised by the specificity of these socio-economic rights.

v reasons For constItutIonal ProtectIon oF socIo-economIc rIghts

A South Africa’s Approach

The successes of socio-economic rights as protected by the South African Constitution give compelling reasons for similar protection in Australia. As a way to legally address apartheid, the South African Constitution embodies values of democracy,⁶⁰ fundamen- tal human rights,⁶¹ and constitutionalism.⁶² What is particularly poignant in regards to many other constitutions globally (including Australia) is the fact that socio-economic rights are also protected. These rights include property ownership,⁶³ healthcare, food, water,⁶⁴ and in relation to children, education.⁶⁵ By constitutionalising socio-economic rights, positive obligations arise to ‘respect, protect, promote and fulfil the right.’⁶⁶ And, by virtue of section 38, any violations can be arbitrated upon. It is paramount to recog- nise the importance of the protection of these rights in a post-apartheid era as a way to overcome previous social inequality. This cannot be overlooked, as there is an argument for a similar application in Australia for the reconciliation and protection of Indigenous Australians.⁶⁷ The idea of progressiveness in the timeframe of the ICESCR is also ad- dressed. The Constitutional Court ‘analyses whether government measures targeted at a constitutional right progressively realise that right’⁶⁸ with a focus on ‘reasonableness’.⁶⁹ This is flexible and adaptive, and supports that progressiveness can be achieved and consequently challenges the previous argument that a progressive timeframe for so- cio-economic rights is inadmissible.

B Positive Obligations of Civil and Political Rights

⁶⁰  Constitution of the Republic of South Africa Act 1996 (South Africa) preamble.

⁶¹  Constitution of the Republic of South Africa Act 1996 (South Africa) s 1(a).

⁶²  Constitution of the Republic of South Africa Act 1996 (South Africa) s 2. ⁶³  Constitution of the Republic of South Africa Act 1996 (South Africa) s 25. ⁶⁴  Constitution of the Republic of South Africa Act 1996 (South Africa) s 27. ⁶⁵  Constitution of the Republic of South Africa Act 1996 (South Africa) s 29. ⁶⁶  Young, above n 1, 196.

⁶⁷  Ibid., 197.

⁶⁸  Ibid., 200.

⁶⁹  Ibid.

Socio-economic rights in the Constitution would impose positive State obligations, however, some civil and political rights also require positive action and expenditure.⁷⁰ For example, the Freedom of Assembly is a civil and political right that is outlined in the ICCPR and also protected under the Constitution. This freedom has been interpreted so as to impose some positive obligations. This is because occasionally authorities have to act to ensure assemblies are peaceful, and this may entail dispatching a police force and incurring positive expenditure.⁷¹ Having said this, it is a marginal cost in comparison with examples such as healthcare or pensions. Costs associated with negative rights do not usually compare with those incurred by positive ones.⁷² However, it is still evident that it is not just socio-economic rights that require action for realisation. Thus, the cen- tral argument that socio-economic rights require positive obligations and accordingly, should not be included in constitutional law is partly countered by the fact, that certain civil and political rights also require positive action in order to be implemented.

C Fragility of the Principle of Legality

Although broader than Constitutional guarantees, there are still limits on the scope of implementation and protection of socio-economic rights in current statutes. Ordinary statutes can be easily repealed or amended later by legislation, leaving current protec- tions vulnerable to change.⁷³ For example, the current parliamentary push to amend the Racial Discrimination Act (1975) (Cth) (RDA) to remove the words ‘insult’ and ‘offend’ from Section 18C is argued to encourage and normalise racist behaviour.⁷⁴ Therefore, this highlights the vulnerable nature of statutory protections,⁷⁵ and initiates a call for a more concrete enforcement of socio-economic rights. Having said that, the Northern Territory National Emergency Response Act (2007)⁷⁶ temporarily halted the protections under the RDA so as to intervene in Indigenous communities in an attempt to stop child sexual abuse.⁷⁷ This provisional amendment of a statute ultimately allowed for the

⁷⁰  Nickel, above n 7.

⁷¹  Ibid.

⁷²  Debeljak, above n 14, 42.

⁷³  Ibid.

⁷⁴  Alexandra Beech, Indigenous MP Linda Burney Slams Calls For Changes To Race Hate Laws (2016) ABC News <http://www.abc.net.au/news/2016-08-31/first-female-indigenous-linda-burneys-passionate-maiden- speech/7802942> .

⁷⁵  Debeljak, above n 14, 42.

⁷⁶  Northern Territory National Emergency Response Act 2007 (Cth).

⁷⁷  Alastair Nicholson, ‘Human Rights and the Northern Territory Intervention’ (Speech delivered at The John Barry Memorial Symposium, University of Melbourne, 11 November 2010) <http://www.ncca.org.au/files/ Natsiec/Alastair_Nicholson_-John_Barry_Mem speech 3_.pdf> .