ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND AN AUSTRALIAN HUMAN RIGHTS ACT

The Uniting Church supports the inclusion of economic, social and cultural (ESC) rights in an Australian human rights act, alongside the rights contained in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Church’s support for the inclusion of ESC rights is based on the belief that these rights cover areas of life that are fundamental for people to live a dignified life.

What are economic, social and cultural rights?

The human rights referred to as “economic, social and cultural rights” (ESC rights) are contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was adopted by the General Assembly of the United Nations in 1966 and to which Australia became a party in 1976.

The International Covenant on Economic, Social and Cultural Rights includes, for example:

	right to work, fair wages, equal wages, safe working conditions and rest in work
	right to form and join trade unions
	widest possible protection and assistance for the family
	adequate standard of living including food, clothing and housing
	freedom from hunger
	highest attainable standard of physical and mental health
	right to education
	right to take part in cultural life, enjoy the benefits of scientific progress and its application

Under the ICESCR, the Australian Government is obliged to take steps, to the maximum of its available resources, to progressively achieve the realisation of the rights contained in the Covenant.

Why should economic, social and cultural rights be included in a human rights act?

	ESC rights cover areas of life that are fundamental, and are essential for people to live a dignified life
	in order for a human rights act to have meaning in the community, it must include ESC rights
	some of the biggest human rights issues in Australia relate to ESC rights – large numbers of people unable to access appropriate or affordable housing, the gender pay gap, the disadvantage of Indigenous Australians in the areas of employment, health, housing and education
	ESC rights are indivisible from political and civil rights. For example, if a marginalised group has inadequate food, shelter and clothing, will they feel part of society just because they have the right to vote?
	incorporating ESC rights into a human rights act would be consistent with Australia’s obligations under the ICESCR
	civil and political rights can require just as many government resources as economic, social and cultural rights. The right to vote, for example, requires allocation of resources to ensure that citizens can exercise that right
	the staged introduction of civil and political rights first may create a perception that the only rights ‘worth’ protecting are those initially included in the Act
	a human rights act can be modelled to ensure that courts can not take power away from the Parliament, strike down legislation or allocate resources to remedy violations of ESC rights
	The South African Constitutional includes ESC rights. Even though the South African Constitutional Court has the power to strike down legislation, it has consistently declined to do so, showing that fears of the erosion of government authority are unfounded.

Why should economic, social and cultural rights not be included in a Human Rights Act?

ESC rights are qualitatively different to civil and political rights. The latter are considered to be ‘negative rights’ in that they restrain government action, while the former are positive rights in that they require government action and expenditure.

	including ESC rights severely restricts the Government’s financial and social policies
	the Parliament, rather than the court system, should have responsibility for controlling government spending and policy
	ESC rights are not included in the human rights documents of many similar countries
	Rather than try to achieve a very broad based protection of rights from the outset, it may be better to adopt a two stage process by first providing protection for the most widely recognised rights, civil and political rights, and subsequently adding protection for other rights in a review process. This suggestion was generally based upon concern that a recommendation to include all rights initially might fuel opposition to the enactment of a human rights act.

Human rights instruments elsewhere

The dominant approach across the various foreign and domestic human rights acts is to focus on the full range civil and political rights and to protect only selected economic, social and cultural (ESC) rights.

Victoria and the ACT

In the ACT and Victoria, Human Rights Acts centre on civil and political rights, although both states include protection for minority and Aboriginal cultural rights and the Victorian Act also contains some protection for property rights. The ACT Bill of Rights Consultative Committee recommended that ESC rights be included in the ACT Human Rights Act 2004 but this recommendation was rejected by the ACT legislature.

ESC rights were omitted from the ACT and Victorian human rights instruments largely because of the concern that their inclusion would encroach too much upon Parliament’s ability to control spending and resource allocation. Review processes have been established in Victoria and the ACT to look at whether to include ESC rights and other rights like those in the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women.

Canada, New Zealand and the United Kingdom

Human rights instruments in Canada, New Zealand and the United Kingdom do not cover ESC with the exception of the United Kingdom’s Human Rights Act 1998, which cover rights to education and the peaceful enjoyment of property.

South Africa

The South African Bill of Rights covers both civil and political rights and ESC rights. The ESC rights include freedom of trade, occupation and profession, the right to fair labour practices, the right to a safe environment and environmental protection, freedom from arbitrary deprivation of property, the right to adequate housing, the right of access to health care services, food, water and social security, the right to education and cultural and language rights. Some economic and social rights, such as rights to housing, health care, food, water and social security are limited by the provision that the State must take measures to achieve their realisation within its available resources.

On the question of enforcement, it is clear in the South African context that rights implementation requires constant vigilance, particularly from civil society. One community who brought their case under the socio-economic provisions of the Constitution has seen only a slight improvement in their appalling living conditions. In another example, the government appears to have stalled the development of a program meant to provide anti retroviral drugs to HIV- positive mothers in public hospitals, despite a court ruling that the government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies.