If I were the Attorney-General, I would take seriously the call by Australians for economic and social rights to be better protected and promoted in this country. I would be pleased that over 35 000 Australians took time to participate in the National Human Rights Consultation that I launched in December 2008. Yet I would not accept the praise of many – that the process stands as a leading example of how national governments should consult communities about human rights – until I had issued a genuine response. In preparing this response, I would attend to the community’s call for giving priority to rights to health care, housing and education. These would be addressed constructively with the Rudd Government’s reform agenda of social inclusion, access to justice, and national security. I would also recall the Australian Labor Party’s historic role in the creation of Australia’s social welfare architecture, in legislation dealing with labour, health care and education.
The drafters of the Universal Declaration of Human Rights understood that human rights cannot be protected without catering for the material needs of the most vulnerable. The fundamental rights that accord with being human do not only involve civil and political rights. States must also respect, protect and fulfil the rights of everyone to have access to food, clothing, housing, health care, and education.
And as those drafters made clear, this realization is as important to peace and national security as it is to inclusion and access to justice. I would recommend, in this spirit, that Australia ratify the Optional Protocol of the International Covenant on Economic, Social and Cultural Rights and encourage the Minister for Foreign Affairs, Stephen Smith, to persuade other countries to do so in order to bolster the post-Cold War economic and social rights framework as well as the human rights institutions of our region.
Closer to home, I would engage with some of the National Human Rights Consultation Committee’s excellent recommendations, such as the adoption of a federal Human Rights Act, and supplement others, such as its institutionally timid exploration of how economic and social rights correspond with judicially manageable standards. I would ask my Department, the Australian Law Reform Commission and other experts, to assist me in understanding the rich international and comparative examples that indicate how economic and social rights work in advanced legal systems. I would compare this advice with earlier white papers and reports on Indigenous health and well-being, housing, water and legal services, and get advice on implementing the recommendations which support human rights in institutionally creative and targeted ways.
I would work hard to understand the hurdles and opportunities presented by recognizing economic and social rights as, on the one hand, a frame of political discourse in Australia and on the other, a legally robust category. It may be that as a frame of discourse, claims of ‘rights’ help particular groups to communicate, and my colleagues in government and others to understand, how hunger, indigence, medical neglect, or barriers to schooling are public injustices in Australia, rather than private misfortunes. This frame may even unite political minorities that are grappling with a systemic problem from different perspectives. I would remind my colleagues in Cabinet that Australians who participated in the consultation described serious failings in access to health care, education and housing in rural and urban communities.
In approaching the legal category of economic and social rights, I would consider how one can exert legal pressure on decision-makers in diverse scenarios. First, I would survey the ways in which the duties to respect, protect and fulfil economic and social rights would alter the role of parliamentary committees and the drafting and preparation of legislation. This would also require me to investigate current approaches to measuring and monitoring economic and social rights.
Second, I would examine the obligations that would be placed on policy-makers and bureaucrats. An apt example is offered by South Africa: where administrative decision-makers must now act ‘reasonably’ in matters of economic and social rights. This standard involves measures of procedural fairness, familiar to Australian administrative law, but also includes an explicit requirement that decision-makers do not ignore the interests of the most vulnerable in devising and implementing policies around housing or health care.
Third, I would explore the ways in which adjudication would be altered by legislated economic and social rights. I would reject the Committee’s recommendations that such rights should, without further study, be taken off the adjudicative agenda. I would instead get advice on how such rights may translate to a justiciable complaint, or otherwise figure as subjective entitlements to certain procedural protections, or as a principle to inform the interpretation of legislation and the common law.
All of these issues will provoke more thinking and more action. If my study finds that a change is needed in the prevailing judicial culture in Australia, I would increase the resources for ongoing judicial education, encourage the use of international and comparative materials by Australian courts and advocates, and perhaps think about the trajectory of judicial appointments in Australia in a more expansive way.
In all of my endeavours as Attorney-General, I would be encouraged by the view of many that the protection of economic and social rights leads to a renewal of democracy, rather than a restriction of it.
Dr Katharine Young is a recent graduate of Harvard University and a research fellow at ANU’s Regulatory Institutions Network