Justiciable socio-economic rights? South African insights into Australia's debate.
Author | Young, Rebecca |
Abstract
As Australia considers the appropriate form by which to represent her commitment to fundamental human rights, there is renewed opportunity to consider Australia's understanding of the interdependence and indivisibility of civil and political rights and socio-economic rights. Based on an understanding of justiciability as involving both normative and institutional justiciability, this article analyses the potential for judicial adjudication of socio-economic rights. This article argues that the South African example of constitutionally enshrined justiciable socio-economic rights offers practical mechanisms for addressing most of the common critiques levelled at the justiciability of socio-economic rights, including by providing a methodology for identifying an appropriate standard of judicial review, by avoiding separation of powers concerns through flexibility and judicial deference, by adopting a pragmatic approach to remedies and by using hierarchical needs-based assessments to address concerns of resource scarcity. This article argues that, thus far, the relevant human rights consultative committees in Australian states and territories have failed to fully engage with the well-developed South African example in their consideration of whether to include justiciable socio-economic rights and that such failures should not be repeated within the context of debate at the federal level.
Introduction
The Universal Declaration of Human Rights (UDHR) (1) represents the commitment of most of the global community to promote social progress and increased standards of living, (2) including through socio-economic rights, (3) Socio-economic rights are those which protect labour, property and other economic interests, as well as those protecting other vital components of a decent standard of living including health care, food, water, clothing, shelter and education. A total of 157 states have committed themselves more explicitly to socio-economic rights through ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR), (4) including Australia. Yet, 60 years after the UDHR's proclamation and more than 30 years after the ICESCR's entry into force, socio-economic rights remain marginalised. Their classification as human rights is questioned (5) and even if accepted, their suitability for judicial enforcement is doubted. (6) This article argues that socio-economic rights are legally significant and appropriate for adjudication. The case for the justiciability of socio-economic rights is made by reference to the case law of the South African Constitutional Court. This article then considers the extent to which the South African socio-economic rights jurisprudence is relevant to debate about any future charters of rights in Australia.
The significance of the justiciability of socio-economic rights has recently been emphasised by the United Nations High Commissioner for Human Rights, Louise Arbour, who stated to the European Court of Human Rights in January 2008 that 'a final issue that has been close to my heart is the effort to bring economic, social and cultural rights back into what should be their natural environment--the courts'. (7) The Australian Labor Government's pre-election policy platform included commitment to a public inquiry and consultation regarding the best methods of protecting human rights and freedoms in Australia, with this issue featuring at the Australia 2020 Summit. (8) The relevant committees considering human rights instruments in the Australian Capital Territory (ACT), Victoria, Western Australia (WA) and Tasmania have all referred to the example offered by the South African jurisprudence. (9)
Detailed consideration of this jurisprudence and its relevance to Australia is warranted. While grounded in the broader context of increased debate about potential human rights instruments in Australia, detailed consideration of the merits, nature and form of any eventual federal or state charters of rights is beyond the scope of this article, as is the precise content or form of any socio-economic rights protections which might emerge. The author's concern is simply that the possibility of socio-economic rights which can be meaningfully enforced by the judiciary should not be dismissed summarily given the insights offered by South Africa on the potential for effective judicial adjudication of socio-economic rights.
Part one of this article explores the relevant historical context of justiciable socioeconomic rights, both at the international and national level. On the international plane, the article outlines the emergence of socio-economic rights as subject to different enforcement mechanisms compared to their civil and political counterparts, as well as outlining recent movements towards greater justiciability for socio-economic rights. The Australian context is also explored. The manner in which socio-economic rights have been previously considered by Australian courts, parliament and human rights consultative committees is explained.
Armed with this understanding of the general approach to socio-economic rights and their justiciability, both in Australia and internationally, part two then outlines the conception of justiciability on which this article is based. Justiciability, in its most basic sense, refers to suitability for judicial adjudication. It involves two fundamental elements: whether there is a legal question (normative justiciability) and whether any extrinsic reasons make that question unsuited to judicial determination (institutional justiciability). Part two focuses on the normative justiciability of socio-economic rights.
Part three then deals with institutional justiciability. The purpose of this part is twofold. On one hand, it demonstrates that the South African example overcomes common reasons advanced to argue that socio-economic rights are unsuited for judicial adjudication, thus bearing out the view that the Committee on Economic, Social and Cultural Rights (CESCR) that all rights in the ICESCR are potentially justiciable. (10) This part also draws attention to the relevance of the South African jurisprudence to Australia's own debate about including socio-economic rights as potentially justiciable in any future federal, state or territory charters of rights. Both a shared common law heritage and the fact that state and territory consultative committees have expressed concerns of the same nature as those addressed in the South African jurisprudence indicates the utility of this comparative approach. Thus far, consultative committees in the states and territories have failed to comprehensively engage with the South African experience. This article concludes that the South African offers an example of justiciable socio-economic rights which justifies extensive re-examination as Australia evaluates its own commitment to human rights.
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Historical Context of Socio-Economic Rights
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Justiciable Socio-Economic Rights in International Human Rights Law
Almost every State has ratified the United Nations Charter, therefore obliging them to work towards higher standards of living, employment and conditions of economic and social progress and development. (11) Since the adoption of the UDHR, the global community recognises all rights as indivisible, interdependent and interrelated, (12) sharing organic unity. (13) Yet, the treatment of socio-economic rights in human rights instruments often differs compared to civil and political rights--indivisibility is honoured more in breach than in observance. (14)
In the twin Covenants, differentiation between civil and political rights and socioeconomic rights first emerges. In 1950, the member states of the United Nations General Assembly requested a clear expression of economic, cultural and social rights and the manner in which they relate to civil and political freedoms in a single International Covenant on Human Rights. (15) This was reconsidered after only one year when concerns were expressed about the differing nature of the rights; civil and political rights were matters on which legislation could be immediately enacted, whereas socio-economic rights were progressive. (16) There was said to be a lack of appropriate enforcement and implementation mechanisms for a single covenant. (17) Such concerns reflect the eventual covenants which adopt different methods of enforcement and implementation. (18) The global community decided in 1951 (19) to instead draft two covenants, (20) thus giving birth to a distinction between socio-economic rights and civil and political rights which still persists. The decision was, at least partially, a result of inevitable political compromise between developed Western nations prioritising civil and political rights and the Soviet emphasis on socio-economic rights. (21) Neither covenant purports superiority; their almost identical preambles state that the ideals espoused in the UDHR require protection of all rights. During drafting it was emphasised that states did not wish to deny socio-economic rights' enforceability and justiciability, (22) but such theoretical recognition does not preclude significant differences between the two covenants. (23)
The most obvious difference today is that the ICESCR lacks an optional protocol. However, there are moves towards such a protocol. On 18 June 2008, the Human Rights Council recommended that the General Assembly adopt and open for signature the draft Optional Protocol. (24) While it could be suggested that the current lack of an optional protocol reflects a view held by most States that socio-economic rights are not justiciable, this view is simplistic. It fails to acknowledge the political compromise involved in the drafting of the twin covenants and ignores early support for a single judicially-enforceable covenant. Moreover, it is inaccurate to suggest that a failure to include a mechanism for international judicial...
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