Should we protect economic, social and cultural rights?

When Australians speak of ‘human rights’, we generally refer to civil and political (CP) rights, but they are only half the picture. Should economic, social and cultural (ESC) rights also be included in a Human Rights Act (HRA) for Australia?

Civil and political rights
CP rights are basically rights to participate in civil society and democratic process. They are generally defined by the International Covenant on Civil and Political Rights (ICCPR), which includes the rights to:

– life and liberty;
–  protection from torture or cruel, inhuman or degrading treatment;
–  freedom of thought, conscience and religion
–  freedom of expression.

Economic, social and cultural rights
Generally speaking, ESC rights provide basic levels of protection for individuals in society, from the challenges of living. ESC rights are generally defined by the International Covenant of Economic, Social and Cultural Rights (ICESCR), which includes the rights to:

–  work and the enjoyment of just and favourable conditions of work;
–  social security;
–  an adequate standard of living including food, clothing and housing;
–  freedom from hunger.

Arguments for including ESC rights in a Human Rights Act?

ESC rights are human rights
The primary argument is that the Act would be incomplete without them. ESC rights ought not to be considered as distinct from CP rights but rather as two parts of an interdependent whole. The philosophical division between CP rights and ESC rights derives from the competing ideologies of the West and the Soviet Union post World War II when the covenants were created. If the HRA is truly to ‘protect and promote human rights in Australia’ it needs to protect all of these rights. ESC rights can allow citizens to more forcefully assert their CP rights, and the exercise of CP rights may satisfy ESC rights.

For instance, indigenous Australians are the most disadvantaged group in Australia, despite having the right to vote for many years (in some states from 1850 onwards). However, for indigenous Australians without adequate housing, sanitation, healthcare or education, voting is a terminally slow means of effecting change. And until these needs are met, how can indigenous Australians feel as though they have an equal say in society’s direction?

Thanks to Fiona Katauskas

The creation of a rights culture
If Australia has a culture of rights, it is a culture that recognises only CP rights. This is a powerful argument for the inclusion of ESC rights in an Act of federal parliament, as this has the potential to lead public opinion towards affording them the same respect as CP rights. If only CP rights are included, this could end forever the possibility of protecting ESC rights.

The draft Act contains several mechanisms that will stimulate public debate and therefore create an understanding of ESC rights. In particular, section 45 provides that the Attorney-General must publicly state whether each bill before Parliament is compatible with human rights. Section 46 provides for the creation of a Parliamentary Joint Standing Committee on Human Rights to publicly debate the Parliaments performance in relation to human rights. Both of these mechanisms will keep the issue of human rights, and in turn ESC rights, in the public view.

The South African Constitution may prove a useful test of whether public institutions can move ahead of public opinion and create or define a culture of rights. It will be interesting to see if the Constitutional Court’s active support of ESC rights filters through to influence public opinion and rights dialogue.

Why shouldn’t ESC rights be included in a Human Rights Act?

ESC rights are aspirational, and not suited to rights discourse
ESC rights, by their nature, are aspirational. This is reflected in the language employed in the ICESCR, which provides:

The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his familyâ ‚¬ The States Parties will take appropriate steps to ensure the realisation of this rightâ ‚¬

By way of comparison, the ICCPR provides at Article 6:

Every human being has the inherent right to life. This right shall be protected by law.

This comparison demonstrates acceptance that ESC rights cannot be achieved immediately and that different means may be adopted in realisation of the rights. ESC rights are also possibly evolutionary rights – as society changes public opinion as to the minimum acceptable standards of living will also change. On one hand this aspirational and potentially evolutionary nature makes ESC rights unsuitable for the Act. If rights can evolve, do they truly represent the minimum standards of human dignity? If even ICECSR recognises that there are different means of achieving ESC rights, perhaps their protection ought to be left to the electorate?

On the other hand, the basic standards of living expressed in the ICESCR are fundamental rights that are unlikely to vary greatly in public opinion. In addition, it is naive to suggest that CP rights do not also change – for instance the right to freedom from cruel, inhumane or degrading punishment is evolving.

ESC rights place an obligation on the Government to spend money
ESC rights require the government to allocate resources in order to fulfil them. For example, the right to be free from hunger may require the Federal Government to spend money to ensure that all Australians have sufficient food. CP rights, however, merely require the Government to stop or to refrain from certain conduct – for example, to proscribe killing, and refrain from acts of killing itself.

This issue really raises two separate questions. First, can something be a right if it is dependent, at least in part, on discretionary Government action rather than restraint? Secondly, is it appropriate for the Courts to enquire into Government spending?

The first of these questions suggests several answers. Firstly, ESC rights can reflect a minimum standard of living so basic that its protection ought not to be considered discretionary. Furthermore, it is not realistic to suggest that CP rights merely require the Government to refrain from acting. The protection of CP rights is itself a relatively expensive process, and most of these rights would be totally useless unless the government actively protected them by means of various institutions such as the Australian Electoral Commission.

The second question is usually considered a fairly compelling argument against including ESC rights in a bill of rights. It is inappropriate for the Courts to strike down the budgetary decisions of a democratically elected Government for two reasons. First, our system of government relies on the separation of function and powers between the legislature and judiciary, with decisions regarding the spending of tax money the sole domain of the elected government. Secondly, legislators are specialists at allocating resources in our community. There are important economic considerations to the budgetary decisions they
make, which would be beyond the scope of a court.

However, the Act only empowers the courts to invalidate subordinate legislation or declare an act of a public authority unlawful. In this sense, the court’s ability to assault parliamentary sovereignty is severely restricted.

Finally, including ESC rights may be a poison pill for the Act. The decision whether a Human Rights Act should include ESC rights will ultimately be decided by parliament. In the ACT, despite a recommendation from the Consultation Committee to include certain ESC rights, the Government decided against including them.

Conclusion

A person’s position on whether ESC rights should be included in human rights will depend on their beliefs about the nature of rights and the role of the courts and government in a parliamentary democracy. At any rate, even the consideration of these issues advances the cause of those Australians in favour of an authoritative statement of Australian human rights.

New Matilda’s draft Bill of Rights contains a mix of civil and political rights and economic, social and cultural rights. Download it today and let us know whether we should include both or whether other amendments should be made. Send your comments or a formal submission to humanrightsact@newmatilda.com.