If I were Attorney-General I would enact a national Charter of Rights which enshrined all internationally recognized human rights, including economic, social and cultural rights. Governments usually proffer a number of reasons for excluding economic and social rights from Charters of Rights: first, that the inclusion of such rights would breach separation of powers and, second, that they would refer to Courts questions they are not competent to decide. Economic and social rights are supposedly too indeterminate to be justiciable. Upon a closer analysis, each of these justifications is incoherent, but that is another debate. One effect of focusing on whether economic and social rights should be included in a Charter has been to stymie discussion about how they should be included.
So here is how I would include economic and social rights in an Australian Charter of Rights.
First I would ensure that economic and social rights are enforceable as opposed to merely aspirational principles. To deny the enforceability of such rights would undermine their inalienable character. Such essential values should not be left solely to the political process for their fulfilment, but rather should be guaranteed so that when they are violated, deprived individuals may seek judicial enforcement.
Second, my Charter would allow for the judiciary to review both negative and positive duties with respect to economic and social rights. That is, in relation to economic and social rights, Courts would monitor the Australian government’s duty to respect, which requires that it refrain from violating rights; its positive duty to protect, which requires that it prevent individuals’ rights from being breached by third parties; and the positive duty to fulfil which requires it to provide essential goods and services, such as food, housing, health or education, to those without the means to provide for themselves.
Third, in relation to the level of scrutiny by which government action is judged, I would adopt the South African threshold of ‘reasonableness’. Pursuant to this principle, ‘the precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable.’ (see Republic of South Africa v Grootboom). Courts would defer to government policy decisions and respect its choice of means but would prod the legislature into action to realize economic and social rights.
Fourth, the level of scrutiny or standard of review should not be confused with the definition of the content of the right. According to a standard of review based on reasonableness, Courts would decide whether a government measure is reasonable in light of the objective and right it is seeking to uphold. However, such deference is not accorded to the government in defining the content of the right. The notion of minimum core obligation as elaborated under international law should be used to define the content of economic and social rights in the Charter. Courts could draw on the General Comments from the UN Committee on Economic, Social and Cultural Rights and the jurisprudence of other international bodies. Naturally, as with civil and political rights, it will take some time for the Courts to define the exact content of each economic and social right. Unlike international treaties, my Charter of Rights would not explicitly codify limitations as to resources and progressive realisation for economic and social rights. Instead, I would fold this into the general limitation clause which allows the government to limit rights in a reasonable, proportionate and justifiable manner. Issues of resource allocation and progressive realisation would be considered under the rubric of the limitation clause.
Finally, in relation to remedies, I would not create expansive new remedies for courts in relation to economic and social rights, as some jurisdictions have done in India and the United States. I would allow Courts to make a declaration that the government is in neglect of its duty to fulfil or protect with respect to the economic or social right in issue and empower the judiciary to require that the government devise and implement a policy to fulfil the right in question. However, the exact formulation should be left to the government and the Court should not become embroiled in monitoring the implementation.
Although my Charter may appear to advocate an expansive role for the judiciary, it is actually a deferential standard, especially in relation to remedies. The framework merely attempts to apply usual judicial standards of review to all rights and to all government duties. Grudgingly, I would follow the current vogue for implementing a Charter according to the ‘dialogue model’, which would downgrade the above framework so that it is not binding on parliament. Ultimate sovereignty would reside with the legislature.
Andrew Hudson, an Australian lawyer, is senior associate at Human Rights First in New York:firstname.lastname@example.org.