The Value of the Legislative Entrenchment of Economic, Social and Cultural Rights

On a recent visit to Australia, the UN Special Rapporteur on the Right to Health, Paul Hunt, reflected on the global trend towards the legislative entrenchment and judicial recognition of economic, social and cultural rights, such as the rights to education, adequate housing and health care. Increasingly, he said, domestic legislatures and courts are recognising that economic, social and cultural rights are as concrete and important as their civil and political cousins. Moreover, he said, the legislative entrenchment and justiciability of economic, social and cultural rights contributes to and reinforces the realisation of civil and political rights, such as the rights to freedom of expression and association. The Bracks Labor Government and particularly the Attorney-General, Rob Hulls, should be strongly congratulated for becoming the first Australian state to move towards the comprehensive protection of civil and political rights with the imminent enactment of the Victorian Charter of Human Rights and Responsibilities. The exclusion of economic, social and cultural rights from the Charter, however, flows against the broad global trend identified by Professor Hunt. Indeed, if legitimate criticism of the Charter is to be made, it is that it is not too strong but too weak. As one submission by a homeless man to the independent inquiry into the need for a Charter put it, ‘a Charter must cover the right to proper housing, the right to proper health services, the right to work and the right to education, or it will just be icing without a cake’.

The Charter is scheduled to enter into force in January 2007. Section 44 of the Charter requires that, by October 2011, the Attorney General commission and table in Parliament a review of the Charter which considers, among other things, whether it should be amended to include rights enshrined in the International Covenant on Economic, Social and Cultural Rights.

Over the next four years, the case must be made repeatedly and strongly for the inclusion of economic, social and cultural rights in the Charter. In particular, three points must be made.

First, the exclusion of economic, social and cultural rights is inconsistent with the international human rights framework, and common sense, both of which recognise that civil, political, economic, social and cultural rights are necessarily interdependent and mutually reinforcing. Meaningful exercise of the right to participate in public affairs, for example, requires access to information and realisation of the right to education. Similarly, the right to privacy is largely illusory for homeless people who are forced to live their private lives in public space contrary to the right to adequate housing. Access to adequate health care, consistent with the right to the highest attainable standard of health, is necessary if a person is to remain able to exercise their rights to freedom of movement and association

The second point is that the arguments most frequently advanced for excluding economic, social and cultural rights from charters – namely, that they are resource contingent and the business of parliaments rather than courts – do not appertain to the Victorian Charter. The dialectic model adopted in Victoria is, in fact, particularly suited to the inclusion of economic and social rights because, under the Charter, Courts will not have the power to strike down legislation or order remedies with major resource allocation implications. Instead, the Charter provides for the Courts to enter into a dialogue with Parliament, through the issuance of a ‘Declaration of Inconsistent Interpretation’, about the compatibility of a law, policy or practice with the Charter. Parliament will retain ultimate power to respond to such a Declaration, including by making policy and resource allocation decisions, as it sees fit. The Charter also requires that, so far as possible, courts interpret and apply legislation consistently with human rights. Again, this is suited to the inclusion of economic and social rights. Surely it is more appropriate and preferable, for example, that the Courts interpret and apply the Residential Tenancies Act, so far as possible, consistently with the right to adequate housing than in a manner that is inconsistent with this fundamental human right?

The third point is that legislative recognition of the interdependence of human rights has substantial benefits so far as decision-making and policy design processes are concerned. By seeking to identify the various civil, political, social, economic and cultural factors that contribute to policy ‘problems’, the framework promotes a more sophisticated analysis of social issues in a way that captures their multidimensional and interrelated elements. Further, by focusing on the conditions and capabilities that people need to meaningfully participate in society, the framework promotes an integrated and holistic response to the problems identified. To use the language of government, recognition of the interdependence of civil, political, economic, social and cultural rights encourages ‘joined up solutions to joined up problems’.

The commencement of the Charter in 2007 will go some way towards discharging Victoria’s human rights obligations and enhancing governmental, legislative and judicial decision-making processes. It is critically important that when the Charter is reviewed in 2011, it is amended to include the economic, social and cultural rights which are necessary for people to live with human dignity and to fully participate in and contribute to the Victorian community

Philip Lynch is Director of the Human Rights Law Resource Centre Ltd