One of the ways through which human rights can be protected is through international human rights treaties. This article addresses the implications of ratifying such treaties by examining the ratification of the International Covenant on Economic Social and Cultural Rights and Australia's compliance with this convention. Rather than introducing the rights in the ICESCR into law Australia has adopted an indirect method of protecting rights. This paper will analyse the effectiveness of this approach and argue that Australia's approach is not achieving substantive equality and is weakening economic, social and cultural rights. The paper will argue that legally enforceable rights are a powerful force in the protection of human rights.
The paper is divided into three parts. First, we outline the content of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and clarify the obligations that it imposes on States Parties. We identify a series of circumstances in which a State can be presumed to be violating its obligations under the ICESCR. These include circumstances of discrimination in the enjoyment of ICESCR rights; denial of minimum core entitlements of ICESCR rights; and decreases, stagnation or insufficiencies in improvements in above minimum entitlements. The question then, which we do not address in any comprehensive way, is whether there is any evidence that these circumstances exist in Australia and, if so, whether the presumptions can be rebutted. One obstacle is the lack of evidence supplied by Australia in its Periodic Report (1991-1997) to support its positive assessments of its own performance. This we consider to be itself a violation of a further obligation upon States to comply with the Guidelines for Reporting to the ICESCR. Nevertheless, the persistence of economic and social deprivation in Australia indicates that violations of the ICESCR are occurring. In the second part we undertake a more sustained treatment of Australia's obligation to provide effective domestic remedies for violations of ICESCR rights. In order to satisfy the obligation, States need to establish comprehensive mechanisms of redress and accountability. Such mechanisms will tend to combine both judicial and non-judicial/administrative remedies, but States are ultimately obliged to ensure the effectiveness of the remedies they provide. Factors to be considered include whether Australia protects ICESCR rights to the same extent that it protects other international human rights and whether the ICESCR, and its associated "jurisprudence", is an accepted benchmark for judicial or administrative review of ICESCR related claim-rights or benefit-rights. One glaring failure is the single exclusion of the ICESCR from the jurisdiction of the Human Rights and Equal Opportunity Commission, which monitors compliance with international human rights instruments in Australia. We believe that this exclusion is representative of the general reluctance of Australian governments to undertake a good faith implementation of the ICESCR. In part three, we briefly summarize the ICESCR's recent review of Australia's compliance and its Concluding Observations. The review raises many of the same issues that other human rights treaty committees have highlighted - in essence, the lack of a comprehensive and effective system for the protection of human rights, which leaves many groups vulnerable to human rights violations and without any means of redress. The vulnerable groups include indigenous people, women on low incomes, refugees and asylum seekers, lesbians and gay men, immigrants from non-English speaking backgrounds, and children living in poverty. The review also raises a further problem of the compatibility of Australia's free-market economic policies with the protection and promotion of economic, social and cultural rights. The dismantling of the welfare state and its networks of community-based service providers, in favor of profit-driven delivery of economic and social services, threatens the very idea of economic and social guarantees. These problems are compounded by the Australian Government's new-found antipathy to human rights treaty committees.
This document has been prepared in acccordance with UN reporting guidelines and invorporates a broad range of information on Australia's demography, Constitution, legal system and human rights machinery. It also addresses specific issues identified by the UN Human Rights committee and the UN committee on Economic, social and Cultural rights following consideration of previous reports submitted by Australia under the ICCPR and ICESCR.
"One purpose of this book is to respond to this shift: to look beyond the more abstract and ideological discussions of the nature of socio-economic rights in order to engage empirically with how such rights have manifested in international practice". -- INTRODUCTION.
"Important links between health and human rights are increasingly being recognised and human rights can be viewed as one of the social determinants of health. Furthermore, a human rights framework provides an excellent foundation for advocacy on health inequalities, a value-based alternative to views of health as a commodity, and the opportunity to move away from public health action being based on charity. This text aims to demystify the complexity of systems for the protection and promotion of human rights globally, regionally and nationally. It explores the use and usefulness of rights-based approaches as an important part of the tool-box available to health and welfare professionals and community members working in a variety of settings to improve health and reduce health inequities. Global in its scope, Health Equity, Social Justice and Human Rights presents examples from all regions of the world to illustrate the successful use of human rights approaches in fields such as HIV/AIDS, improving accessibility to essential drugs, reproductive health, women's health, and improving the health of marginalised and disadvantaged groups. Understanding human rights and their interrelationships with health and health equity is essential for public health and health promotion practitioners, as well as being important for a wide range of other health and social welfare professionals. This text is valuable reading for students, practitioners and researchers concerned with combating health inequalities and promoting social justice"--Provided by publisher.
Imprisoned people have always been vulnerable and in need of human rights protections. The slow but steady growth in the protection of imprisoned people’s rights over recent decades in Australia has mostly come from incremental change to prison legislation and common law principles. A radical influence is about to disrupt this slow change. Australian prisons and other closed environments will soon be subject to international inspections by the United Nations Subcommittee on the Prevention of Torture (SPT). This is because the Australian Government ratified the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in December 2017. Australia’s international human rights law obligations as they apply to prisons are complex and stem from multiple Treaties. This book distils these obligations into five prerequisites for compliance, consistent with the preventive focus of the OPCAT. They are: reduce reliance on imprisonment align domestic legislation with Australia’s international human rights law obligations shift the focus of imprisonment to the goal of rehabilitation and restoration support prison staff to treat imprisoned people in a human rights–consistent manner ensure decent physical conditions in all prisons. Attention to each of these five areas will help all levels of Australian government and prison managers take the steps required to move towards compliance. Human-rights led prison reform is necessary both to improve the lives of imprisoned people and for Australia to achieve compliance with the international human rights legal obligations to which it has voluntarily committed itself.
How do you protect rights without a Bill of Rights? Australia does not have a national bill or charter of rights and looks further away than ever from adopting one. But it does have a range of individual elements sourced from common law, statute and the Constitution which, though unsystematic, do provide Australians with some meaningful rights protection. This book outlines and explains the unique human rights journey of Australia. It moves beyond the criticisms long made of the Australian position – that its 'formalism', 'legalism' and 'exceptionalism' compromise its capacity for rights protection – to consider how the many elements of its novel legal structure operate. This book analyses the interlocking legal framework for the protection of rights in Australia. A key theme of the book is that the many different elements of a fragmented scheme can add up to something significant, albeit with significant gaps and flaws like any other legal rights protection framework. It shows how the jumbled influences of a common law heritage, a written constitution, differing paths taken by jurisdictions within a single federal state, statutory and common law innovations and a strong dose of comparative legal influences have led to the unique patchwork of rights protection in Australia. It will provide valuable reading for all those researching in human rights, constitutional and comparative law.
