Byrnes, Andrew --- "Second-Class Rights yet Again? Economic, Social and Cultural Rights in the Report of the National Human Rights Consultation" [2010] UNSWLRS 26

University of New South Wales Faculty of Law Research Series

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Second-Class Rights yet Again? Economic, Social and Cultural Rights in the Report of the National Human Rights Consultation [2010] UNSWLRS 26 (3 July 2010)

Last Updated: 6 July 2010

This paper is available for download at http://law.bepress.com/unswwps/flrps10/art26/

CITATION

This paper was published in the University of New South Wales Law Journal (2010) 33 (1) 193-238.

ABSTRACT

In September 2009 the National Human Rights Consultation Committee delivered its report to the Australian government on the results of its inquiry into the protection of human rights in Australia. That report contained many recommendations to enhance the understanding and protection of human rights in Australia. This article examines the treatment by the Committee of economic, social and cultural rights (ESCR) in comparison with civil and political rights (CPR). While the Committee recognised the status and importance of ESCR, its doubts about the ‘justiciability’ of ESCR and the appropriateness of courts playing a role in their implementation meant that it did not support the inclusion of ESCR in the legislative bill of rights it proposed, though ESCR were included in other proposed reforms.

This article argues that, while the NHRCC’s recommendations had the potential to improve the observance and enjoyment of ESCR, its proposals to limit the full inclusion of ESC rights in its preferred scheme of rights protection were underpinned by an undue emphasis on differences between ESCR and CPR rights. These recommendations were also based on a traditional understanding of the nature of ESC rights that has been fundamentally challenged as a result of academic and judicial developments over the last three decades. In adopting this approach, the NHRCC once again constituted ESC rights as the poor cousin in the world of human rights protection, even as it made proposals that would strengthen their protection in some respects. The article also analyses the treatment of ESCR in the Australian Human Rights Framework, announced by the Government in April 2010 in its response to the Report.