Introduction
4.1 This chapter outlines the content of the economic, social and cultural rights (ESCR) recognised in the International Covenant on Civil and Political Rights (ICESCR). The UN Committee on Economic, Social and Cultural Rights (CESCR) has elaborated the meaning of the rights in a series of General Comments. The rights have also been considered by many national and international courts and tribunals. International interpretations of these ESCR have generally been formulated so as to apply to a wide range of countries at different stages of development.
4.2 The purpose of this chapter is to provide an overview of the main features of the current international understanding of these rights in order to elucidate what their inclusion in the ACT Human Rights Act 2004 (HRA) might entail. The chapter explains the extent to which these rights have been given specific content nationally and internationally, and identifies aspects of the rights that are capable of immediate implementation and judicial enforcement and those that are subject to the obligation of progressive implementation.
4.3 After describing the general features of ESCR, this chapter outlines current developments in relation to the rights to housing, health care and education. An extensive elaboration of these rights can be found in the workshop discussion papers in Appendix 1. Next, the chapter describes the international interpretations of the rights to work, social security, water and cultural life, which are also central to the operation of the ICESCR.
4.4 This chapter does not address all the rights contained in the ICESCR. Article 1 sets out the right of peoples to self‐determination and is identical to Article 1 of the International Covenant on Civil and Political Rights (ICCPR). The ACT Bill of Rights Consultative Committee recommended that the five‐year review of the HRA give special attention to the effectiveness of the legislation in protecting the rights of Indigenous Australians, including the right to self‐determination,1 and in our view any inclusion of the right should await such a review. Article 10 of the ICESCR provides protection for families and children. We do not address it here as the right is effectively already covered in section 11 of the HRA. We also do not deal with the right to intellectual property contained in article 15(1)(c) of the ICESCR because there is a lack of consensus both within Australia and internationally on its scope and content.
1 ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act: Report of the ACT Bill of Rights Consultative Committee (2003), [5.48]‐[5.64].
General features of ESCR
4.5 Obligations to respect, protect and fulfil ESCR: As noted in Chapter 3, the obligation to observe ESCR is multilayered: it requires that States respect (ie not interfere with), protect (ie take measures to prevent others from interfering with), and fulfil (ie take positive measures to fully realise) these rights.
4.6 Obligations of immediate effect and obligations of progressive realisation: The formulation of ESCR in the ICESCR comprises two different types of obligations.2 First, there are obligations with immediate effect: the State must satisfy ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’,3 ensure the enjoyment of rights without discrimination,4 and take
‘deliberate, concrete and targeted’ steps towards the ensuring the full enjoyment of ICESCR rights.5 Discrimination is generally understood to mean both direct6 and indirect7 discrimination.
4.7 Second, there are obligations that may be progressively realised ‘with the full use of maximum available resources’.8 Progressive realisation is a ‘necessary flexibility device, reflecting the realities of the real world’.9 Elements of the right that may be progressively realised are subject to greater governmental discretion. If an obligation must be progressively realised, action must still be taken ‘as expeditiously and effectively as possible’, and measures that are retrogressive to the achievement of an outcome must be properly justified.10 That an obligation must be progressively realised, then, does not let a government ‘off the hook’: it merely acknowledges that some obligations need more time to be implemented than others.
4.8 Limitations on ESCR: As with civil and political rights (CPR), the enjoyment of ESCR may be subject to reasonable limitations.11 Article 4 of the ICESCR provides:
The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
4.9 Remedies: The CESCR has recognised the importance of domestic remedies for a failure to ensure the enjoyment of ESCR. This includes judicial or other appropriate remedies.12 A violation of many ESCR should be addressed by adequate reparation, including restitution, compensation, satisfaction or guarantees of non‐repetition, Moreover, access to legal assistance for obtaining remedies (within available resources) should be provided.13 In addition to judicial remedies, violations may also be addressed by national ombudspersons, human rights commissioners, and similar human rights institutions.14 Support for trade unions and other organisations of civil society also contributes to the defence of ESCR.
The right to adequate housing
4.10 Article 11 of the ICESCR sets out three components of an adequate standard of living:
food, clothing and housing. We focus here on the right to adequate housing. In broad terms, the right to adequate housing is viewed as a ‘right to live somewhere in security, peace and dignity’.15 This right has been interpreted to include several key elements: adequacy, protection against forced evictions, prohibition against discrimination, and the provision of emergency housing for vulnerable groups.
4.11 For housing to be considered adequate for the purposes of the right to adequate housing, the following factors should be taken into account:16
• Legal security of tenure: Adequacy requires a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats;
• Availability of services and infrastructure: Adequacy requires the availability of certain essential facilities, including safe drinking water, heating and lighting, and sanitation;
12 Committee on Economic, Social and Cultural Rights, General Comment No. 9: The Domestic Application of the Covenant, 19th sess, UN Doc E/C.12/1998/24 (3 December 1998) (‘General Comment No. 9’); Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (art 9), 39th sess, UN Doc E/C.12/GC/19 (4 February 2008) [77] (‘General Comment No. 19’).
13 Ibid General Comment No. 19, [77].
14 Ibid; see also Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (arts 11 and 12), 29th sess, UN Doc E/C.12/2002/11 (20 January 2003), [55] (‘General Comment No. 15’);
and Sub‐Commission on the Promotion and Protection of Human Rights, Realization of the right to drinking water and sanitation: Report of the Special Rapporteur, El Hadji Guissé, 11 July 2005, UN Doc
E/CN.4/Sub.2/2005/25, [9] (‘Report of Special Rapporteur on Water’).
15 Committee on Economic, Social and Cultural Rights, General Comment No. 4: The Right to Adequate Housing (art 11), 6th sess, UN Doc E/1992/23 (13 December 1991), [7] (‘General Comment No. 4’).
16 Ibid [8].
• Affordability: Adequacy requires that housing costs do not threaten or compromise the satisfaction of other basic needs;
• Habitability: Adequacy requires sufficient space and protection from environmental, health and structural hazards;
• Accessibility: Adequacy requires that housing policies and laws must give priority to the ability of disadvantaged groups to access housing;
• Location: Adequacy requires that housing must be in a location which allows access to employment, healthcare, education and social facilities; and
• Cultural adequacy: Adequacy requires that housing construction, building materials and supporting policies must appropriately enable the expression of cultural identity and diversity of housing.
4.12 The right to adequate housing requires public authorities to refrain from forced evictions. The government must also take reasonable measures to ensure that third parties, such as private landlords, do not carry out forced evictions. Forced eviction means ‘the permanent or temporary removal of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’.17
4.13 The right to adequate housing must be implemented in accordance with the principles of equality and non‐discrimination.18 As a minimum, housing policies and laws must refrain from directly or indirectly discriminating without reasonable justification, but positive measures may also be required to ensure equality in the effective enjoyment of housing rights.
4.14 The right to adequate housing has not been interpreted to be a right to housing on demand but it does require that reasonable provision be made for vulnerable individuals to access emergency accommodation as temporary relief.19
4.15 The obligation to ensure the enjoyment of the right to adequate housing has immediate obligation elements, but also progressive obligation elements, insofar as its implementation must in many aspects take account of the reality of resource constraints. In other words, the obligation on government is to take reasonable measures within its available resources to secure the right to adequate housing progressively.
4.16 There is an immediate obligation on governments to take ‘deliberate, concrete and targeted’ steps towards progressively realising the right to adequate housing, including:
17 Committee on Economic, Social and Cultural Rights, General Comment No. 7: The Right to Adequate Housing (art 11.1): Forced Evictions, 16th sess, UN Doc E/1988/22 (20 May 1997) [3] (‘General Comment No. 7’).
18 General Comment No. 4, above n 15, [6].
19 See, for example, Government of South Africa v Grootboom [2000] ZACC 19, where the government was held to have breached the right to housing because its policies had made no provision to facilitate access to
emergency accommodation for people whose homes had been demolished. See also Port Elizabeth
Municipality v Various Occupiers [2004] ZACC 7, where the Court refused to order the eviction of people from undeveloped public lands because reasonable provision had not been made for alternative accommodation.
• developing a coordinated and comprehensive housing strategy, which addresses structural problems and prioritises the needs of the most vulnerable groups in the community;20
• putting in place mechanisms to ensure that progress towards securing the right to adequate housing can be monitored effectively;21 and
• ensuring that vulnerable groups are able to effectively participate in decision‐
making processes and the development of policies which affect them.22
4.17 The following elements of the right to adequate housing have also been interpreted to give rise to obligations of immediate effect:
• protection against forced eviction;23
• prohibition against discrimination;24 and
• access to emergency accommodation for vulnerable groups.25
4.18 The right to adequate housing does not mean that the government will be required to:
• build housing for the entire population;
• provide housing free of charge to all who request it;
• fulfil all aspects of this right immediately;
• either assume full responsibility itself or leave completely to the unregulated market to secure this right for all; or
• implement this right in exactly the same way in all circumstances or locations.26
4.19 The CESCR regards many component elements of the right to adequate housing as being ensured by the availability of the following types of domestic legal remedies:
• court proceedings in which orders can be obtained to prevent planned evictions or demolitions;
• legal procedures for seeking compensation following an illegal eviction;
• complaints procedures that permit consideration of illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination;
• procedures to resolve allegations of any form of discrimination in the allocation and availability of access to housing; and
• procedures for dealing with complaints against landlords concerning unhealthy or inadequate housing conditions.27
The right to the highest attainable standard of health
4.20 The right to health is set out in article 12 of the ICESCR. The CESCR has noted that the right to health ‘contains both freedoms and entitlements’.28 The freedoms include:
• the right to control one’s health and body, including sexual and reproductive freedom; and
• the right to be free from interference, such as the right to be free from torture, non‐consensual medical treatment and experimentation.
4.21 The entitlements include the right to a system of health protection that provides equality of opportunity for people to enjoy the highest attainable level of health. This encompasses the right to have access to timely and appropriate health care and extends to what are described as the ‘underlying determinants of health’. These are the basic requirements on which good health depend, and include: safe and potable water and adequate sanitation; adequate supply of safe food, nutrition and housing;
and healthy occupational and environmental conditions.29
4.22 The Committee has noted that the provision of health resources must meet certain requirements to be meaningful:30
• Availability: There must be functioning public health and health care facilities, goods and services, as well as programmes in sufficient quantity;
• Accessibility: Access to health care facilities, goods and services must be universal and provided on an equitable basis. Accessibility has four overlapping dimensions, namely non‐discrimination; physical accessibility; economic accessibility (affordability); and information accessibility;
• Acceptability: All health facilities, goods and services must be respectful of medical ethics and culturally appropriate as well as sensitive to gender and life‐
cycle requirements; and
• Adequacy/Quality: Health facilities, goods and services must be scientifically and medically appropriate and of good quality.
4.23 The right to health is not the same as a right to be healthy. States are not responsible for every aspect of good health of the people within their territory. This is especially
4.24 Respecting the right to health means governments must not interfere directly or indirectly with the enjoyment of the right, including in relation to preventative, curative or palliative health services. This includes, for example, not preventing access to sexual and reproductive health measures such as contraceptives, or to appropriate traditional medicines, and not taking unreasonable coercive measures in the area of mental health.32
4.25 Protecting the right to health requires the government to take positive measures ‐‐ for example, through legislation ‐‐ to ensure equal access to health care and health services, including those provided by private or community organisations. Further, the government must ensure that unsafe drugs are not on the market, and must regulate professional standards through measures such as health professions boards.33
4.26 Fulfilling the right to health requires governments to give health appropriate recognition in political and legal systems. Formulating and reviewing health policies and plans are key aspects of this obligation – for example, through immunisation plans, delivery of reproductive health infrastructure, or in relation to occupational health and safety plans in the workplace.34
4.27 The following elements of the right represent immediate obligations:
• developing a coordinated and comprehensive health strategy, which addresses structural problems and prioritises the needs of the most vulnerable groups in the community;35
• putting in place mechanisms to ensure that progress towards securing the right to health can be monitored effectively;
• ensuring that vulnerable groups are able to effectively participate in decision‐
making processes and the development of policies which affect them; and
• implementing the right to health in a non‐discriminatory way. This includes providing access to health facilities, goods and services on a non‐discriminatory basis, especially for vulnerable or marginalised groups,36 and ensuring the equitable distribution of all health facilities, goods and services. Health legislation should also not unjustifiably discriminate in its terms or its impact.
4.28 Limitations: Limits may be placed on the enjoyment of the right to health, where they can be demonstrably justified as reasonable and proportionate to a legitimate
objective.37 It may be reasonable for a government, for example, to ration access to a particular life‐saving vaccine in cases of an urgent public health emergency, provided that a longer term public health strategy is developed concurrently. Similarly, it may be necessary to limit an individual’s freedom of movement if an individual has a serious communicable disease and should be quarantined.38
The right to a healthy environment
4.29 The right to a healthy environment is derived from the right to health in article 12 of the ICESCR, which provides for the ‘improvement of all aspects of environmental and industrial hygiene’ (article 12(2)(b)).39 As noted above, the right to health has a broad meaning and ‘embraces a wide range of socio‐economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, [including] safe and healthy working conditions, and a healthy environment’.40
4.30 The CESCR has interpreted the requirement in article 12(2)(b) to include:41
• preventive measures in respect of occupational accidents and diseases;
• the requirement to ensure an adequate supply of safe and potable water and basic sanitation;
• the prevention and reduction of the population's exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health;
• the minimisation, so far as is reasonably practicable, of the causes of health hazards inherent in the working environment;
• adequate housing and safe and hygienic working conditions;
• an adequate supply of food and proper nutrition; and
• discouraging the abuse of alcohol, and the use of tobacco, drugs and other harmful substances.
4.31 Progressive realisation: States have a wide margin of discretion to achieve the right to a healthy environment progressively. But they are required to adopt a detailed plan for the realisation of the right, including measures to address environmental and occupational health hazards and policies to reduce and eliminate environmental pollution.42
39 See also General Assembly Resolution 45/94 (14 December 1990), which states that ‘[a]ll individuals are entitled to live in an environment adequate for their health and well‐being.’
40 General Comment No. 14, above n 28, [4], [36].
41 Ibid [15].
42 Ibid [36].
4.32 The CESCR has identified various obligations of immediate effect, or minimum core standards, in relation to the right to a healthy environment. These include:
• implementing the right on a non‐discriminatory basis;43
• refraining from unlawfully polluting air, water and soil, for example, through industrial waste from State‐owned facilities;44
• taking legislative measures to prevent the pollution of water, air and soil by extractive and manufacturing industries; and45
• ensuring access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water.46
The right to adequate food
4.33 The right to food is an essential component of the right to an adequate standard of living contained in article 11 of the ICESCR. The CESCR has observed that the right to food is no less relevant in the developed world, noting that ‘the roots of the problem of hunger and malnutrition are not lack of food but lack of access to available food’.47 For the right to be guaranteed means that there must be physical and economic access to adequate food or means for its procurement.48 Adequacy implies that food must be acceptable, available, accessible, meet dietary needs, and be free of adverse substances.49
4.34 Respect, protect and fulfil: The obligation to respect the right to adequate food requires the State to refrain from interfering with people’s existing access to food.
Violations include denying access to food to particular individuals or groups; or preventing access to food aid in emergency situations.50 Violations would also occur, for example, if people were arbitrarily evicted from their land, especially if the land was their primary means of feeding themselves, or if social security provisions were
Violations include denying access to food to particular individuals or groups; or preventing access to food aid in emergency situations.50 Violations would also occur, for example, if people were arbitrarily evicted from their land, especially if the land was their primary means of feeding themselves, or if social security provisions were