6.1 The Project convened a series of expert workshops to bring together leading economic, social and cultural rights (ESCR) specialists with key stakeholders in the ACT Government and community sectors between October 2009 and March 2010.
Workshops were held on the right to housing, the right to education and the right to health to discuss the implications of protecting these specific ESCR in the ACT.1 Our Partner Organisation, the ACT Department of Justice and Community Safety (JACS), together with the ACT Human Rights Commission (ACT HRC), also hosted a supplementary forum in June 2010 to explore the links between ESCR, the environment and energy and water supply. This chapter describes the key findings from these discussions.2 It was anticipated that these discussions would inform the recommendations made in this report.
6.2 The purpose of the workshops was to consider the theoretical and practical issues involved in implementing the rights to housing, education and health in the ACT context as well as to identify whether there were any gaps in the present legislative and policy framework that could be addressed by expressly incorporating these rights in the ACT Human Rights Act 2004 (HRA).
6.3 The Project circulated working papers on the rights to housing, education and health to the workshop participants prior to each session, and these formed the basis for discussion at the respective workshops. These papers are attached in full in Appendix 1 of this report. Broadly, the working papers sought to:
• provide an overview of the content of the rights to housing, education and health, in particular as recognised in the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Australia is a party;
• survey the means by which these rights are currently implemented in the law and practice of the ACT, and the extent to which that law and practice gives effect to the right;
• identify the ways in which existing provisions of the HRA already guarantee aspects of these rights;
• describe how these rights might be incorporated in the HRA and the legal implications of such inclusion; and
• assess the advantages and possible drawbacks of including these rights in the HRA.
JACS forum
6.4 The purpose of the forum was to consider the implications of ESCR for environmental protection and the supply of energy and water in the ACT. JACS circulated a discussion paper prepared by the ACT HRC, which formed the basis for discussion at the forum.
The discussion paper (attached in full in Appendix 1 of this report) canvassed, among other things, the possible implications of protecting the rights to a healthy environment, water and energy supply (in the context of the right to adequate housing) in the ACT.
Discussion
6.5 Participants focused on two main issues in the course of discussions in all four workshops:
• the appropriateness and utility of recognising a human rights guarantee of ESCR in the HRA; and
• whether implementation of ESCR should be subject to judicial scrutiny and enforcement.
Why an explicit human rights guarantee?
6.6 Incomplete coverage: Participants generally agreed that, while the existing legislative and policy framework for housing, education and health in the ACT provided varying degrees of protection of the relevant ESCR, the coverage was unsystematic, incomplete and largely discretionary. Further, this piecemeal and limited protection was susceptible to being eroded by the amendment or repeal of laws, or the modification or withdrawal of facilities and services.
6.7 Limitations of indirect protection: Participants recognised that many of the core elements of ESCR such as the rights to housing, education and health, in particular those giving rise to ‘immediate obligations’,3 were to some extent already applicable and (indirectly) enforceable in the ACT as civil and political rights (CPR) claims under the HRA, particularly since the commencement of the duty to comply with human rights on public authorities in January 2009. However, there are inherent limits to this approach and participants acknowledged that, without specific recognition, the protection of these ESCR was likely to remain relative to, and dependent on, the treatment given to the CPR in the HRA.
3 For example, ‘immediate obligations’ in the context of the right to housing include non‐discrimination;
prohibition of forced eviction, and access to emergency housing.
6.8 More coherent framework: Most participants saw that express incorporation of ESCR in the HRA would provide clearer direction to government agencies and other public authorities about their obligations and would focus the attention of policy‐makers on the conditions needed to secure their effective realisation in practice. They agreed that the real success of the HRA to date has been the extent to which it has improved the policy‐making and legislative process in the ACT by bringing human rights questions explicitly to the forefront; it followed that similar gains were likely to be achieved by including ESCR in the HRA. For example, one participant at the housing workshop stated:
I do agree with the discussion paper that a legislative right to adequate housing would provide clearer guidance to policy makers and government agencies than the existence of unenforceable rights.
Another participant at the JACS forum considered that:
The HRA might be a useful framework for addressing complex land management issues [that involve competing interests]. Rights can inform and indicate the questions to be asked and can be a way of assisting to answer these issues.
6.9 Means to identify legislative and policy ‘blind spots’: Some participants were initially doubtful whether the inclusion of the ESCR in the HRA would result in any tangible benefits to the lives of people in the ACT. It was suggested that the positive examples of protecting these rights in jurisdictions such as South Africa were of limited relevance to the ACT because of the vastly different social and economic circumstances. The ACT undoubtedly has a good track record overall in providing access to high quality public housing, healthcare services and education for ACT residents. However, participants conceded that there was the potential for legislative and policy ‘blind spots’ which could result in the ESCR interests of certain vulnerable individuals or groups being neglected. The inclusion of ESCR in the HRA would therefore serve as an aid to the formulation and implementation of laws and policy, and as a standard that would enable a denial of the rights or regression in its enjoyment to be better identified and rectified. A participant at the housing workshop observed:
I think the existence of an enforceable right to housing in the HRA will be an enabler for progressive legislation to provide more definitely for the goods and services in the real world which will give effect to that right.
6.10 Better coordination of cross‐sectoral obligations: Some participants noted that effective implementation of ESCR interests would often involve cross‐sectoral obligations. Because of its broad links with other human rights, the right to health, for example, is not just a portfolio‐specific issue that can be dealt with by the Department of Health. Express inclusion of the ESCR in the HRA could provide a framework for addressing the range of issues relevant to underlying determinants of health and more clearly delineate corresponding obligations of other actors.
6.11 Better outcomes for Commonwealth funding: National cooperative schemes and intergovernmental funding agreements are a common feature of governance in the ACT, particularly in the areas of health, education and housing. Some participants argued that the incorporation of the relevant ESCR in the HRA could act as leverage in negotiating better outcomes for the ACT vis‐à‐vis Commonwealth funding agreements, as well as informing discussions with the Commonwealth and other States and Territories.
6.12 Aid to social reforms: Participants acknowledged that inclusion of the ESCR in the HRA could provide a more definite stimulus for policy makers to clarify the content and scope the guarantee as well as assisting government to enact social reforms in areas such as housing, health care, education and the environment. One participant at the JACS forum observed that:
Looking at utilities through a HRA framework would be a way to promote equity in pricing and avoid the pitfalls of monopoly pricing. It would strengthen our ability to convey the message to service providers.
6.13 Enhance democracy: Despite some concerns, discussed below, that the inclusion of ESCR in the HRA would undermine the democratic process by transferring power from the elected legislature to the courts on social and economic policy determinations, participants generally agreed that recognition of ESCR would enhance democracy by promoting the participatory capabilities of marginalised individuals and groups in political, economic, social and cultural spheres.
A role for the courts?
6.14 There was a significant degree of overlap in the concerns raised by participants in all three workshops. These concerns broadly related to the legal implications of including the ESCR in the HRA and involved three inter‐connected issues: the appropriate role for the courts in enforcing the ESCR; the question of scarce resources and who determines their allocation; and the management of community expectations in light of the perceived vagueness of the content of ESCR when compared with CPR.
6.15 Changed setting: Participants recognised that the current debate on ESCR was taking place in a very different context to that which occurred before the ACT introduced the HRA in 2004.4 As noted above, claims that essentially involve ESCR interests can now be brought as enforceable CPR claims under the HRA. Participants conceded that the relevant question was no longer if the ACT should protect ESCR, but how it should do so. Most participants agreed that it would be preferable to provide an explicit and targeted framework for protecting the ESCR, rather than leaving it to the courts to indirectly enforce ESCR through expanded interpretations of CPR. One participant at the housing workshop commented:
4 See discussion in Chapter 2.
We do not want the development of these rights to be solely dependent on judicial interpretation as it always occurs ex post facto, once there is an allegation that a right has been breached because adequate housing has been denied.
6.16 Judicial scrutiny: Nevertheless, some participants remained concerned about the consequences of ‘justiciability’ and whether it was appropriate or desirable for the courts to be empowered to play a significant role in the supervision of ESCR implementation. A participant at the health workshop commented:
While the HRA framework might help us to go forward, I am concerned that it may also result in the judicialisation of health policy and delivery of health services. Legal interventions and lawyers make me nervous.
Another participant asked:
Who will be the arbiter of evidence in a rights‐based framework? If it is the courts, then the danger is that it takes away from deference to practitioners.
6.17 Other participants thought that enforceable rights would create the necessary accountability to improve government compliance with the ESCR. A participant at the housing workshop commented:
I think we should ask the question how much certainty and comfort can the most vulnerable members of community take from the continued improvement of housing accessibility and services based on Intergovernmental agreements and ACT budget papers rather than legal rights.
6.18 Allocation of scarce resources: Some participants were concerned that judicial resolution of ESCR claims would involve the courts in determinations about whether the government had committed sufficient resources to achieving ESCR outcomes and risk disrupting government priorities for the allocation of scarce resources. However, others considered that these concerns were overstated. For example, at the housing workshop, one participant said:
I think we have gone past the point where we say that we don’t want the right to housing in the HRA to be enforceable because resources are limited. There are already specific legal rights to housing which are enforceable and which have resource implications.
If the right to housing was enforceable, the courts could look at the Homelessness NP implementation plan and see if it has any reasonable prospect of being followed, if it is resourced adequately and then if it has made enough progress. Would that be so bad in the ACT? While I’m understandably nervous about a court testing this, I am not at all nervous about all the information being brought into the public arena so it can be tested and the plans having input from those they are designed to assist.
Why not take the next step and have the courts test the progress as well?
6.19 Managing expectations: A related concern for some participants was that the recognition of the ESCR as a legal right would create the expectation of ‘rights on demand’. A participant at the housing workshop said:
From the community’s perspective, a right to housing implies one person, one house.
The question is how to manage expectations within a limited budget.
Similarly, a participant at the health workshop cautioned that a right to health could create the expectation that individuals are entitled to treatment on demand and exaggerate the importance of ‘choice’ over medical expertise.
6.20 A question of formulation: Discussions at the workshops clarified that there were many different forms that ESCR protection can take: a dialogue model like the HRA, for example, does not enable courts to strike down legislation or to compel government to allocate resources in any particular way. Further, the particular formulation of the ESCR guarantee adopted can be adapted to avoid many of the concerns identified by participants. For example, some elements of the ESCR may be enforceable in the same way as CPR, while other components may be subject to judicial scrutiny of the ‘reasonableness’ of the measures adopted to achieve their progressive realisation; and it is possible that the implementation of some obligations will be left entirely to the discretion of the executive and legislature.
6.21 Some participants suggested that for courts to play an appropriate role in ESCR adjudication, it would be necessary to provide them with specific legislative guidance on the factors to be considered when assessing the question of ‘reasonable measures’. Others noted that it would be important to construct a sufficiently broad definition of the ESCR guarantee to take account of the cross‐sectoral nature and obligations of particular ESCR.
Conclusion
6.22 The four ACT expert workshops provided a valuable opportunity for public servants and non‐government organisations to raise concerns and questions about legislative protection of ESCR. The discussions confirmed first, that there are sound reasons for including ESCR in the HRA; and second, that many of the concerns relating to the
‘justiciability’ of ESCR can be ameliorated by adopting the appropriate formulation of the ESCR guarantee.
7. Chapter 7: Comparative models of economic, social and cultural rights