In search of ‘effective remedies’: applying the International Covenant on Economic, Social and Cultural Rights to Australia

Australian Journal of Human Rights

Volumn 7, Issue 1, 2001, Pages 5-46

  Otto, Dianne ^a   Wiseman, David ^b  

^a UNIVERSITY OF MELBOURNE   (Australia)

^b UNIVERSITY OF WINDSOR   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85045006846     PISSN: 1323238X     EISSN: 2573573X     Source Type: Journal    
DOI: 10.1080/1323238X.2001.11911050     Document Type: Article

References (97)

1. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia. E/C.12/1/Add.50, 1 September 2000. The Concluding Observations of the CESCR comprise its opinion on the state of Australia's compliance with the ICESCR. This opinion is not legally binding, but it has important political and diplomatic dimensions and provides a useful means for Australian nongovernmental organisations (NGOs) and others to promote improved compliance domestically. The Concluding Observations, Australia's Report and other related documents can be found at the United Nations (UN) Treaty Bodies Data Base .
2. The International Covenant on Economic, Social and Cultural Rights was adopted by the UN General Assembly, Res 2200(XXI), 16 December 1966 It entered into force on 3 January 1976, three months after the 35th ratification or accession
3. Minister for Foreign Affairs, joint media release, ‘Improving the Effectiveness of United Nations Committees’, 29 August 2000, FA97. The media release announced the findings of a whole-of-government review, which had been announced by the Australian Government on 30 March 2000. See ‘Government ‘goes after’ UN committee system’ 125 Unity News: Weekly News Summary 1–2, 31 March 2000; .
4. See ‘Government ‘goes after’ UN committee system’ 125 Unity News: Weekly News Summary 1–2, 31 March 2000; . See CERD, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia 19/04/2000. CERD/C/304/Add 101.
5. Minister for Foreign Affairs, above note 3.
6. Minister for Foreign Affairs, above note 3.
7. Concluding Observations of the Human Rights Committee: Australia 28/07/2000. CCPR/CO/69/AUS.
8. Periodic Report: Australia 23/07/98 E/1994/104/Add.22, 23 July 1998. See .
9. List of Issues: Australia 23/25/2000. E/C.12/Q/ AUSTRAL/1.
10. The CESCR takes account of information from NGOs in order to analyse and respond to State's reports. See NGO participation in activities of the Committee on Economic, Social and Cultural Rights 12/05/93. E/C. 12/1993/WP.14,12 May 1993. Many of the Shadow Reports prepared for the CESCR by Australian NGOs can be found at .
11. The CESCR drew attention to this question in its List of Issuesn above note 9, para 9, and in its Concluding Observations, above note 1, paras 14 and 24
12. While the division of the rights contained in the UDHR into two separate treaties may give the impression that they operate in distinct spheres, and has been exploited by those who argue that the rights guaranteed by the ICESCR are not justiciable, we prefer the view that the rights guaranteed in these, and other, treaties are ‘interdependent’ and ‘permeable’: Scott C ‘The interdependence and permeability of human rights norms: towards a partial fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall Law journal 769 and ‘Reaching beyond (without abandoning) the category of ‘economic, social and cultural rights’’ (1999) 21 Human Rights Quarterly 633. We are also of the view that the rights in the ICESCR are no less justiciable than other human rights: see, for general discussion of this issue, Vierdag EW ‘The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights’ (1978) 9 Netherlands Yearbook of International Law 69; Scott C and Macklem P ‘Constitutional ropes of sand or justiciable guarantees? Social rights in a future South African Constitution’ (1992) 141 University of Pennsylvania Law Review I For general consideration of the development, and implications, of the ICESCR, see: Craven M The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Clarendon Press, Oxford, 1995); Eide A, Krause C, and Rosas A, (eds) Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff Publishers, Dordrecht, 1994) and Hunt P Reclaiming Social Rights: International and Comparative Perspectives (Dartmouth, Aldershot, 1998).
13. The ICESCR was signed for Australia on 18 December 1972 and the instrument of ratification was deposited for Australia on 10 December 1975 without reservation. It entered into force for Australia on 10 March 1976.
14. See ICESCR arts 16–17, ICCPR art 40
15. The CESCR was established by the Economic and Social Council, Res 1985/17, 1985 UN ESCOR Supp (No 1) at 15, UN Doc E/1985/85 (1985); the HRC was set up under the ICCPR, arts 28–31.
16. Optional Protocol to the ICCPR, UN General Assembly Resolution 2200A(XXI), 16 December 1996. It entered into force for Australia on 1 December 1991. A similar Protocol to the ICESCR has been drafted but not yet adopted A Report of the Committee on Economic, Social and Cultural Rights on the subject (E/CN.4/1997/105) was submitted for consideration by the Commission on Human Rights at its 53rd session held in Geneva, from 17 March to 25 April 1997. For discussion of this issue, see Coomans F, and van Hoof GJH, (eds) The Right to Complain about Economic, Social and Cultural Rights: Proceedings of the Expert Meeting on the Adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Utrecht, 25–28 January 1995) (Netherlands Institute of Human Rights, Utrecht, 1995).
17. Revised general guidelines regarding the form and contents of reports to be submitted by states parties under Articles 16 and 17 of the ICESCR 17/06/91. E/C.12/1991/1,17 June 1991; Consolidated guidelines for State reports under the ICCPR 01/11/99, CCPR/C/66/GUI/REV.1, 1 November 1999.
18. To date, the CESCR has adopted 14 General Comments and the HRC has adopted 28.
19. NGO Participation, above note 10.
20. Australia has submitted two earlier Reports The 2nd Periodic Report of Australia covered arts 13–15, E/1990/7/Add.l3) and was considered by the CESCR in May 1993.
21. Periodic Report: Australia, above note 8
22. The appendices appear not to be available on the web. Anyone interested is advised to contact the Treaties Secretariat, Legal Branch, International Organisations and Legal Division, Department of Foreign Affairs and Trade, or email: .
23. Core Document forming part of the Reports of State Parties, Australia HRI/CORE/1/Add.44, 27 June 1994. The Core Documents deposited with the UN treaty monitoring bodies give an overview of the political, social, economic and legal circumstances of the State Party.
24. List of Issues, above note 1, para 1
25. See Frankovits A and Earle P ‘The Full Monty Not’ (1998) March Human Rights Defender 9.
26. Periodic Report: Australia, above note 8, para 7.
27. Revised general guidelines, above note 17.
28. Porter B, ‘Judging poverty: using international human rights law to refine the scope of Charter Rights’ (2000) 15 journal of law & Social Policy 117, Part I
29. Frankovits and Earle, above note 25.
30. WRANA, Retreating From The Full Realisation of Economic, Social and Cultural Rights in Australia: A Gendered Analysis (prepared by Dianne Otto, December 1999). The objectives of WRANA are to facilitate Australian activism for the promotion and protection of women's human rights in domestic and international arenas See .
31. ASERP, Australia's Compliance with the ICESCR: Community Perspectives (VCOSS, 2000) ASERP was established to provide education and training on the domestic application of the ICESCR and to encourage the participation of many NGOs in the process of monitoring Australia's compliance with its obligations. To this end, a diverse group of over 50 Australian NGOs and individuals undertook an assessment of social and economic rights in Australia in order to submit a shadow report to the CESCR for consideration in its forthcoming review of Australia. See web site, above note 10. For further details email: .
32. ATSIC Aboriginal and Torres Strait Islander Peoples and Australia's obligations under the United Nations Convention on the Elimination of all Forms of Racial Discrimination February 1999.
33. Some confusion can arise from use of the term ‘State’ when considering the domestic application of international law in countries with a federal political system. In international law, the term ‘State’ refers to countries or nation-states, such as Australia, whereas in Australian domestic law the term refers to geographic political entities within the country, such as Victoria. We use the term in both ways throughout this article, the reference should be clear from the context of those uses.
34. While it is generally true that treaties are not self-executing in Australia, this does not apply to certain categories of treaties like, for instance, treaties concerned with the conduct of war. This issue is complicated further if a treaty states a rule of customary international law or a rule that is a part of the common law of Australia. These questions have yet to be fully explored by the High Court of Australia. See Mitchell A ‘Genocide, human rights implementation and the relationship between international and domestic law: Nulyarimma v Thompson’ (2000) 24 Melbourne University Law Review 26–30.
35. This typology was embraced in the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights UN Doc. E/CN.4/1987/17, Annex, reprinted in (1987) 9 Human Rights Quarterly 122. The typology was introduced by Shue H Basic Rights (Princeton University Press, Princeton, 1980). The typology has been further confirmed and its implications further elaborated in The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights set out in (1998) 20 Human Rights Quarterly 691.
36. The domestic application of the Covenant: 03/12/98. General Comment 9 E/C.12/1998/24, 3 December 1998, para 10.
37. See, for example, Romany C ‘State responsibility goes private: a feminist critique of the public/private distinction in international human rights law’ in Cook R, (ed) Human Rights of Women: National and International Perspectives (University of Pennsylvania Press, 1994) p 85.
38. For example, in response to Australia's second Periodic Report on arts 13–15 the CESCR recommended ‘that further measures be taken to strengthen the human rights education component in formal and non-formal curricula’ (para 14) and that Australia's reports to the CESCR and the Committee's responses be made ‘widely know and available to the public’ (para 16), Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia 03/06/93, E/C.12/1993/9, 3 June 1993.
39. Alston P, and Quirin G, ‘The nature and scope of States Parties’ obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156.
40. Article 2, para 1: the nature of States parties obligations 14/12/90. General Comment 3, para 2, 14 December 1990.
41. International technical assistance measures (Article 22) 02/02/90. General Comment 2, 2 February 1990.
42. UN Charter, arts 1(3), 55 and 56.
43. Genera] Comment 3, above note 40, para 10
44. For consideration of how to answer such a question, see Robertson R ‘Measuring State compliance with the obligation to devote the ‘maximum available resources’ to realizing economic, social and cultural rights’ (1994) 16 Human Rights Quarterly 693.
45. General Comment 3, above note 40, para 9.
46. General Comment 3, above note 40.
47. General Comment 3, above note 40, para 5.
48. General Comment 3, above note 40.
49. General Comment 3, above note 40.
50. General Comment 3, above note 40, para 6.
51. General Comment 9, above note 36, para 9.
52. The genera] framework of presumptive violations used in the summary is by no means original to us and is based, in particular, upon The Limburg Principles and The Maastricht Guidelines, above note 35. For further discussion of the means by which violations of the ICESCR might be identified, see: Leckie S ‘Another Step Towards Indivisibility: identifying the key features of violations of economic, social and cultural rights’ (1998) 20 Human Rights Quarterly 81; and, Chapman A ‘A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23.
53. In general, the term ‘substantive equality’ is contrasted with ‘formal equality’ and refers to the idea that equality requires attention to differences in people's substantive circumstances of life, not just to the different ways they may be treated by formal law. For instance, while formal equality may be satisfied where neither hearing nor deaf patients are prohibited from access to public health care, substantive equality recognises that unless translation services are available for deaf patients, their formally equal access to such care is substantively meaningless: for a decision to this effect under the equality provision of the Canadian Charter of Rights and Freedoms, see Eldridge v British Columbia (A-G) [1997] 3 SCR 624. For further discussion of this issue see: Cain P A ‘Feminism and the limits of equality’ (1990) 24 Georgia law Review 803; Fineman M The Illusion of Equality: the Rhetoric and Reality of Divorce Reform (University of Chicago Press, Chicago, 1991).
54. Reporting by States parties 24/02/89. CESCR General Comment 1, 24 February 1984.
55. The CESCR provides Slates parties with a 22-page set of reporting guidelines which outline the type of information it requires to monitor compliance with the Covenant: see Revised general guidelines, above note 17.
56. Curiously, or perhaps diplomatically, in the introduction to its Concluding Observations the CESCR stated that Australia's Report had complied with the revised guidelines for reporting, although further on it requested that the Government provide more detailed information in its next report: Concluding Observations: Australia, above note 1, paras 2 and 36.
57. See, for instance, Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1.
58. Williams D, ‘Australia's Treaty-Making Processes: the Coalition's Reform Proposals’ in Alston P, and Chiam M, (eds) Treaty-Making and Australia: Globalisation versus Sovereignty? (Federation Press, Sydney, 1995) p 185.
59. General Comment 9, above note 36, para 2.
60. General Comment 9, above note 36, para 9.
61. General Comment 9, above note 36, para 3.
62. General Comment 9, above note 36, para 7.
63. The right to adequate housing (Art 11(1) of the Covenant). General Comment 7, E/C 12/1997/4, para 10.
64. The right to adequate housing, above note 63.
65. The right to adequate housing (Art 11(1)) General Comment 4, E/C 12/1991/4, para 8. For a consideration of the implementation of this right in Australia, see Devereux A Australia and the Right to Adequate Housing’ (1991) 20 Federal Law Review 223.
66. In using the terms ‘direct’ and ‘indirect’ implementation, we would like to draw attention to General Comment 9 of the CESCR where the distinction in form, to which the terms refer, is implicit in the Committee's approach: above note 36, paras 4 and 8. Further, for an insightful description and analysis drawing attention to, in our terms, ‘indirect implementation’ of the right to an adequate standard of living by the Federal Government see Bailey P ‘The Right to an Adequate Standard of Living: new issues for Australian Law’ (1997) 4(1) Australian Journal of Human Rights 25.
67. Green v Daniels (1977) 51 ALJR 463 This case is discussed at greater length in Bailey P Human Rights: Australia in an International Context (Butterworths, Australia, 1990) p 328.
68. Green v Daniels (1977) 51 ALJR 463 at 469.
69. For a considerably more expansive reading of express rights in the Australian Constitution see Bailey, above note 67, p 84–6.
70. For a full discussion of implied rights in the Australian Constitution, and the changing approaches of the High Court to this, see Williams G Human Rights under the Australian Constitition (Oxford University Press, Australia, 1999).
71. Charlesworth H, ‘The Australian reluctance about rights’ (1993) 31 Osgoode Hall Law Journal 195.
72. This extension of HREOC jurisdiction with respect to discrimination in employment resulted from the scheduling of ILO Convention 111, Discrimination (Employment and Occupation) Convention 1958, to the HREOC Act. The seven grounds of discrimination covered by Convention 111 are race, colour, sex, religion, political opinion, national extraction or social origin.
73. Due to the interdependence of international human rights, however, exercise of these powers with respect to the rights enumerated in one international human rights instrument can be relevant to ICESCR rights: for instance, HREOC's National Inquiry into Homeless Children (1989) and National Inquiry into Human Rights of People with Mental Illness (1993).
74. General Comment 9, above note 36, para 7
75. Periodic Report: Australia, above note 8 at 2.
76. Core Document: Australia, above note 23, para 223–238.
77. Discrimination Act 1991 (ACT), Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1992 (NT), Anti-Discrimination Act 1991 (Qld), Equal Opportunity Act 1984 (SA), Sex Discrimination Act 1994 (Tas), Equal Opportunity Act 1995 (Vic).
78. For example, Tasmania only proscribes discrimination on the basis of sex, marital status, pregnancy and family responsibility, while discrimination on the basis of sexuality is not prohibited in Western Australia or Tasmania and only New South Wales has addressed same sex couple-based discrimination.
79. In Canada, for instance, the Quebec Charter of Rights and Freedoms (RSQ 1977, c C-12) provides protection against discrimination based on, among other grounds, ‘social condition’ (s 10); the Nova Scotia Human Rights Act (SNS 1991, c12) and the Manitoba Human Rights Code (CCSM, c H175) both provide protection against discrimination based on ‘source of income’ (ss 5(1)(t) and 9(2)(j), respectively) and the Ontario Human Rights Code (RSO 1990, c H19) provides protection against discrimination based on ‘receipt of public assistance’, though only in relation to accommodation (s 2(1)). See Jackman M ‘Constitutional contact with the disparities in the world: poverty as a prohibited ground of discrimination under the Canadian Charter and human rights law’ (1994) 2 Review of Constitutional Studies 76. It has also been proposed that this ground be included in the Federal Canadian Human Rights Act (RSC 1985 c H-6). See Jackman M and Porter B ‘Women's substantive equality and the protection of social and economic rights under the Canadian Human Rights Act’ in Status of Women Canada Women and the Canadian Human Rights Act: A collection of policy research reports (SWC, Ottawa, 1999) p 43.
80. The Federal anti-discrimination regime was altered considerably by the Human Rights Legislative Amendment Act (No 1) 1999(Cth) which transferred the power to conciliate discrimination complaints from the existing Race, Sex and Disability Discrimination Commissioners to the President of HREOC, thus removing those with specialist expertise from the conciliation process. Further, the reforms remove the power to hear disputes that cannot be settled from HREOC to the Federal Court of Australia. There is concern that the costs involved in the new system will deter litigants, especially those from the disadvantaged groups that the legislation is designed to protect, and that the reduced advocacy functions of HREOC will create further disincentives to use Australia's already inadequate anti-discrimination laws. See further, Gaze B ‘The Costs of Equal Opportunity’ (2000) 3(25) Alternative Law Journal 125.
81. For a discussion of anti-discrimination legislation and procedures, including shortcomings, see Bailey P and Devereux A ‘The Operation of Anti-Discrimination Laws in Australia’ in Kinley D, (ed) Human Rights in Australian Law (Federation Press, Sydney, 1998) p 292.
82. See General Comment 9, above note 36, para 11.
83. (1995) 183 CLR 273. See further, Allars M ‘One small step for legal doctrine, one giant leap towards integrity in Government: Teoh's case’ (1995) 17 Sydney Laxv Review 204
84. Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth), s 5.
85. Above note 84, s 7.
86. List of Issues: Australia, above note 91
87. Notes were provided to us by Leilani Farha from the Centre for Housing Rights and Evictions (an international NGO) who attended the CESCR. Representatives of ASERP — Annie Pettitt, Anna Cody, Melissa Coad and Clancy Kelly, also kept us informed via email.
88. Press release, ‘Committee on Economic, Social and Cultural Rights continues consideration of Third Periodic Report of Australia’, 25 August 2000
89. Concluding Observations: Australia, above note 1, para 24: The Committee strongly recommends that the State party incorporates the Covenant into its legislation, in order to ensure the applicability of its provisions in the domestic courts. The Committee urges the State party to ensure that no conflicts occur between the Commonwealth and State law in this respect. The Committee encourages the State party to follow the High Court's position concerning ‘legitimate expectations’ arising from the ratification of the Covenant.’
90. Press release, above note 88.
91. Concluding Observations: Australia, above note 1, para 25.
92. Concluding Observations: Australia, above note 1, para 27.
93. Concluding Observations: Australia, above note 1, para 28.
94. Concluding Observations: Australia, above note 1, para 36.
95. Australia's fourth periodic review is due to be submitted by 30 June 2005.
96. See .
97. General Comment 1, above note 54.