CAPÍTULO 3: METODOLOGÍA Y RESULTADOS DE LOS ESTUDIOS EMPÍRICOS
3.1. COMPROBACIÓN DE LA MANIPULACIÓN: PRE-TEST SOBRE LA MUESTRA DE CHOCOLATE NEGRO
8.1 This chapter outlines the main arguments for including economic, social and cultural rights (ESCR) in the ACT Human Rights Act 2004 (HRA). The conclusion of Chapter 5 was that there are significant gaps in the protection of ESCR in ACT and Australian law.
This chapter explains how express inclusion of ESCR would address those gaps. These arguments complement the initial arguments for the review of the HRA presented in Chapter 1 and the key findings of the expert workshops set out in Chapter 6.
8.2 Assisting the vulnerable: ESCR can assist vulnerable and marginalised groups in the ACT by orienting the legal system to respond to gaps in human rights protection.
These groups include children, Indigenous Australians, the homeless, people in detention, people with disabilities, the elderly and asylum seekers.1 In Chapter 3, we invoked a point made by the Hon Albie Sachs that, together with CPR, ESCR provide a coherent normative system to support the needs of the whole human being.
8.3 Expressing local norms: The inclusion of ESCR brings the HRA into line with Australian norms, values and principles about the importance of human rights. In the 2009 National Human Rights Consultation, Australians listed the right to education, health care and housing as among the most important human rights.2 This priority echoed the findings of the Western Australian and Tasmanian inquires, and is reflected in community surveys conducted in the ACT as well.3 The rights to housing, education and health were also identified as having particular significance for the ACT by the twelve‐month review of the HRA.4 Protection of ESCR is an important aspect of the often‐identified Australian values of equality and a ‘fair go’ too.
8.4 Implementing international human rights: Just as the inclusion of ESCR is expressive of local norms, it also brings the ACT into line with the international human rights treaties to which Australia is party, such as the ICESCR. Implementation of international law can proceed through several domestic routes; State and Territory legislatures are often able to take the lead in designing implementation strategies, and in doing so in participatory ways.5 Moreover, the inclusion of ESCR in the HRA would
1 See, eg, ACT Department of Education and Training ‘Annual Report 2007‐08’ 231, where it is noted: ‘[t]he gap in school performance between Indigenous and non‐Indigenous students is evident from year 1 onwards.’
2 See, eg, National Human Rights Consultation Committee, National Human Rights Consultation Report (2009) (‘NHRCC Report’), Recommendation 22. Available at <www.humanrightsconsultation.gov.au>.
3 See, eg, the ACT Human Rights Commission’s Community Survey 2009, discussed in the ACT Human Rights Commission’s Submission to the Five‐Year Review of the HRA (November 2009) 24.
4 See ACT Department of Justice and Community Safety (JACS), ‘Human Rights Act 2004 Twelve Month Review Report’ (2006) 45 at <http://acthra.anu.edu.au/Primary%20documents/twelve_month_review.pdf> (‘JACS Report’).
5 Eg Judith Resnik, ‘Law's Migration: American Exceptionalism, Silent Dialogues, And Federalism's Multiple Ports Of Entry’ (2006) 115 Yale Law Journal 1564 (documenting the adoption of ‘transnational rights’ by city councils, state legislatures, and state judges in the United States).
bring the ACT into line with the changing understanding of the nature of ESCR that has occurred in other parts of the world over the last three decades.6
8.5 Ensuring protection of ESCR where it counts: ESCR fall squarely within the responsibilities of Territory and State governments. As the National Human Rights Consultation Report noted, implementation of a Commonwealth Human Rights Act would have direct influence only on Commonwealth public authorities, and would exclude a large number of services for which the States and Territories are primarily responsible, such as in health and education.7 Including ESCR in a sub‐federal bill of rights means that these rights will directly affect service‐delivery. This is also consistent with the constitutional division of powers in Australia’s federal system.
8.6 Enhancing legislative process: The inclusion of ESCR in the HRA guards against legislative ‘blind spots’, which result in the inadvertent neglect of the material interests of certain vulnerable individuals or groups. Such blind spots may arise because of time pressures on legislative deliberations, because legislatures may be unable to appreciate the perspective of rights claimants with very different life experiences, or because they are ill‐equipped to accommodate rights‐based claims.8 ESCR are therefore less about constraining legislative power than ensuring legislative power identifies and covers particular areas.9
8.7 Enhancing administrative process: Explicit inclusion of ESCR can provide for a more coherent bureaucratic framework and better quality public decisions. The pressure to provide accountability for ESCR can provide the scaffolding for change in the institutional culture of particular services and arrangements. Such a process can also result in the participatory design of important benchmarks for interests in health, housing or education contexts.10
8.8 Improving policy‐development: Well‐developed policy forms part of any attempt to protect ESCR. However, policy is changeable, and fluctuates across electoral cycles as a function of governmental priorities. The inclusion of ESCR in the HRA would provide a stable baseline to ground the government’s commitment to provide goods and services in areas of health care, housing or education or environment. As well as providing stability, this baseline would ensure that the fundamental interests of individuals or minority groups are protected, which might be overlooked in majority‐
8.9 Uniting and educating advocates: The explicit inclusion of ESCR also has the capacity to unite groups that may be struggling with a systemic problem from different perspectives.12 Such rights help to frame particular problems, and provide the rhetorical means to demonstrate, for example, that hunger, poverty, homelessness, medical neglect or barriers to schooling are public injustices in Australia, rather than private misfortunes. Human rights advocates must also confront the reasonable claims of others – to civil and political rights (CPR), or to other material interests – when making claims based on ESCR.
8.10 Analysing equality claims: Equality and non‐discrimination are rights currently protected in the HRA. Nonetheless, equality claims are always susceptible to the question: equality of what?13 ESCR help to delineate reasonable from unreasonable claims to equality by articulating a baseline of protection in educational, health and housing contexts. For example, a legislated right to education helps to inform the theory of education that must guide decision‐makers in accommodating the special needs of particular individuals, as well as what would constitute a reasonable limitation on such accommodation.14
8.11 Improving the judicial process: ESCR can improve the judicial process, first by providing a statement of community values to guide judicial decision‐making, and second by introducing judges to the range of comparable decisions in international and comparative jurisdictions. In each task, ESCR can be important to the development of the common law, to statutory interpretation, and to the enforcement of administrative law.
8.12 Developing the common law: The values and sometimes difficult allocative implications of ESCR are constantly present in the common law, particularly in tort, property and contract law. Human rights can interact ‘horizontally’ to guide the behaviour of private individuals (and law’s response to that behaviour), as well as the relations between government and individual.15 ESCR can therefore reorient common law doctrine to bring it into line with societal values. In developing doctrine, a court inevitably signals approval or disapproval of particular forms of private behaviour (such as an employer firing an employee without reasons).16 Explicit ESCR can help give shape to that decision.17 Moreover, judicial determination of the open‐ended and contextual principles that remain in the common law, such as standards of
‘reasonableness’ or ‘good faith’, is assisted by recourse to the baselines supplied by ESCR jurisprudence.18
8.13 Enforcing administrative law: The values of ESCR are also implicated in administrative law decisions, particular in the disputes that may reach administrative tribunals. For example, in tenancy decisions, or in medical review procedures, judges are often asked to decide questions of allocation and entitlement.19 Legislative protection of ESCR, and access to the jurisprudence on ESCR, would enhance this process.
8.14 Interpreting CPR: In Chapter 5, we detailed the way in which ESCR are already indirectly protected by the CPR framework of the HRA. This is due to the indivisibility and interdependence of human rights, which makes the line between CPR and ESCR an arbitrary one. Nonetheless, there are disadvantages in judges interpreting CPR expansively, in order to protect ESCR. The four main problems are:
• Some of the interpretations of CPR are grounded on reasons that are too distant from the key elements of the rights to education, health and housing. For example, the Indian Supreme Court’s expansive interpretation of the right to life and livelihood (described in Chapter 7) may lead to a conception of education in merely vocational or productivity terms; health in merely life‐prolonging terms; or housing in merely survival terms.
• Judges providing individuals with a measure of redress through a broad conceptualisation of current rights might be perceived to be overly activist and adventurous in redrawing the boundaries of, say, the right to life or the right to privacy. Including ESCR in the HRA’s coverage might constrain judges by provided a more explicit and targeted framework.
• Indirect protection of ESCR may undermine the power of the CPR by refashioning them to guarantee entitlements. Attention could be diverted away from the protection of CPR for otherwise vulnerable groups, giving the rights less force in argument and popular discourse.
• Conversely, where CPR are not interpreted in light of ESCR, they are subject to a
‘structural imbalance’ which may lead to retrogressive effects for ESCR.20 ESCR are more socially oriented than CPR and can add emphasis to the participatory, duty‐
based elements of human rights that are arguably more able to reflect a concern for the welfare of the community.21 In certain areas, ESCR can provide a legal
counter‐balance to CPR arguments which may result in hardship to vulnerable groups in the community.22
Conclusion
8.15 Many benefits would flow from explicit inclusion of ESCR in the HRA. These include bringing ACT law into line with community expectations and international commitments as well as updating and correcting the imbalance towards CPR in the current model of human rights in the HRA. They also include improvements in accountability and process in executive, legislative and judicial spheres and providing a coherent target for the campaigns of advocates for the marginalised. ESCR can thus help to assist the most vulnerable people in our community.
22 Ibid 60‐62. Craig Scott and Patrick Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University Pennsylvania Law Review 1, 15. See Wilson v Medical Services Commission (1988) 53 DLR. (4th) 171, in which a restriction on the authorisation of new doctors from practising in areas without medical or community need was challenged as infringing the right to liberty. The regulations were ruled unconstitutional, and yet, the outcome may have been different had a right to health existed, since their impact on the unequal distribution of doctors in certain areas would have been explicitly weighed against the CPR.
9. Chapter 9: Options for protecting economic, social and cultural rights