Should the first Human Rights Act in Australia, operating in the ACT from July 2004, be expanded to include economic, social and cultural rights? CLA says yes…but you can have you own say by completing the online survey (by 19 Aug). The ACT’s decision will be important in framing how other human rights acts operate throughout Australia in future. The consultation launch speech by Dr Katie Young provides a comparison, and you can click to go to the survey…
Time to Act?
Recognising Economic, Social and Cultural Rights as Human Rights in the ACT:
Comparative Lessons
By Dr Katie Young (RegNet, ANU)
I.
It is useful on the occasion of this launch of the ACT community consultation on economic, social and cultural rights to reflect on the ongoing and very large question surrounding these rights: that is, the question of how we decide what it means for the law to seek to protect everyone’s access to health care, housing, education, water, or social security. That is, how legal institutions can cope with the pressure of protection against ill-health, or a lack of education, shelter, or water.
And this brings to it a second question. That is, how is it that the legal institutions of South Africa, which have legislated and constitutionalised these rights, can provide answers that sound so familiar to us.
Ill health has not ended in South Africa, of course, nor has poverty or homelessness. Yet a burden on lawmakers to consider these problems has resulted in important changes in the law and policy around economic and social rights.
II.
When the Constitution of South Africa famously recognised these rights in 1993, the usual concerns about judicial enforcement and judicial review were expressed. That is, that economic and social rights courted the twin dangers of judicial usurpation and judicial abdication.
Judicial usurpation refers to the problem of judges usurping the decision making powers of the elected branches. This concern is commonly expressed here in Australia in the context of the broader human rights debate. Judicial abdication, on the other hand, refers to the problem of judges abdicating their responsibility to enforce the law. Economic and social rights are supposedly a question of choosing one of these two undesirable paths.
The Constitutional Court of South Africa, enforcing these rights since 1993, has shown a way through these dangers. The Court inquires into the reasonableness of policy or legislation. To lawyers, this is a very familiar test, on which many questions of tort law, contract law, and administrative law are centred.
Famously, this has lead to the Court holding a hospital policy of rationing in renal dialysis to be reasonable. It has led the court to hold that a housing policy that did not cater for the needs of people in emergency and dire situations was unreasonable. And it led the court to hold that a health policy that prevented the distribution of HIV-preventative, antiretroviral drugs to pregnant women in public hospitals was unreasonable. The effect that these cases had in solving certain health and housing problems is documented in our report: go to PESCR Report
III.
The outcomes of recent cases in South Africa illustrate the continual shaping of the test of reasonableness in relation to economic and social rights. In a recent case involving water policy, the Constitutional Court held that a market-based policy of pre-paid meters for water delivery to private homes was reasonable.
Another case involved the evictions of groups living in unsafe buildings . Here, the court found the evictions were unreasonable, until a meaningful engagement had occurred between the landlord and the evictees.
Not everyone has praised the results of these cases. In the water case, in particular, advocates have suggested that the court’s test of reasonableness accepts the market-based instruments, adopted by government, too quickly.
This debate reveals the continued disagreement around the application of economic and social rights in South Africa. But it is a disagreement conducted in the acknowledgment of the importance of the position of the most vulnerable. And it is a debate that introduces the voices of the poor through the language of rights.
So let’s conclude on the question on how to decide the allocative and rationing issues around economic and social rights. For the executive and legislative arms of government, reasonable measures to protect such rights requires the use of science, evidence, experts, economics –as well as the fact that these decisions cannot ignore vulnerable groups or politically unpopular groups. For the courts, it requires an ongoing application of the longstanding tests of reasonableness, combined with the insistence of the importance of rights.
IV.
What lessons can comparative jurisprudence hold for Australia? …aside from the fact that a country like South Africa, with its scarce resources, can institutionalize economic and social rights – and what this reveals about the suggestions of fiscal impossibility here. Aside from this, there are important lessons for the law. We can see the usefulness of a test so familiar to legal decision makers and legal enforcers.
Indeed, the test of reasonableness has now influenced the drafting of the Optional Protocol to the ICESCR, which requires reasonable steps to be taken under the new complaints mechanism proposed for the Committee on Economic, Social and Cultural Rights. The orientation of reasonableness is globally influential, but it is also very familiar to our current political and cultural institutions.
South Africa shows that tests of reasonableness help to protect against both judicial usurpation and judicial abdication. Other jurisdictions, such as Ireland, the United Kingdom, Canada and India, reveal lessons of their own.
In the system of protection instituted by the Human Rights Act here in the ACT, with its justiciable duties on public authorities, and its elaborate requirements of pre-legislative scrutiny, such tests and the jurisdictions in which they operate, continue to be illuminating for our debates.
ENDS
- Read the BACKGROUND
- You can have your own say on whether the ACT should adopt economic, social and cultural rights: Take the ACT survey on rights
Dr Katharine Young, of RegNet at ANU, recently completed her Doctor of Juridical Science (SJD) in comparative constitutional law at Harvard. She has international experience on a right-to-health campaign in Ghana over several years, and also teaching human rights, international law and comparative constitutional law at Harvard Law School and Boston University School of Law (as well as at Melbourne Law School). Her SJD from Harvard followed a Master of Laws degree there in 2003. Katie’s earlier qualifications were an LLB (Honours) and a BA in German and Politics from the University of Melbourne. She was an associate to (now former) Justice Michael Kirby, of the High Court of Australia, and also has experience in trade practices law in Melbourne.