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Australian Journal of Human Rights |
Peter Bailey[1]
This paper has three objects. First, it will discuss briefly the main doctrinal issues relating to the human right to an adequate standard of living. To that end, it will consider whether economic and social rights are real rights. Second, relevant Australian law will be reviewed, to see how far it already incorporates provisions that could be regarded as implementing the right. The finding is that in substance many aspects of the right are provided for, but not as rights. The third object is to consider whether, and if so by what means, the right could become an operative part of Australian law. It is suggested that it would be feasible to incorporate at least important incidents of the right, and that there is precedent for the courts to develop the incidents of the right over time.
In order to concentrate on the issues of law, the paper does not review political and policy aspects of the introduction of a legal right to an adequate standard of living, or the degree to which the existing law is complied with. These are important, but not to the exercise involved in this paper, which is to explore how far Australian law does have the effect of realising aspects of the right to an adequate standard of living, and by what means those and other aspects could be made legally enforceable.[2]
The right to an adequate standard of living is unequivocally located in the category of economic, social and cultural rights. It is defined in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). That Covenant, which was opened for signature in 1966, came into force in January 1976, only a month after Australia had ratified it.[3]
The Article has two parts, a general statement of the right and then a more detailed articulation of the specific right to freedom from hunger --
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation \tto need.
It has been said that the right to an adequate standard of living is the most central right in the ICESCR, in the same way as the rights to life, privacy and perhaps freedom of expression are the central rights in the International Covenant on Civil
and Political Rights (ICCPR).[4] The centrality arises because the other rights listed in the Covenants all appear to be in some sense derivative from these core rights. For example, freedom of religion can reasonably be regarded as detailing aspects inherent in the rights to life and privacy. Likewise, the rights to social security or to work can be regarded as detailing aspects of the right to an adequate standard of living.[5] Putting it the other way round, without some realisation of the right to an adequate standard of living, other economic and social (ESC), as well as civil and political (CP) rights would have little meaning.
The formulation of the right was itself the subject of considerable debate in the relevant agencies of the United Nations. Should the right be phrased in wholly abstract terms, by simply requiring a certain standard of living, or should it spell out, rather as is done in Article 25 of the Universal Declaration of Rights, the relevant details such as food, clothing, housing, medical care, social security and so on.[6] In the end a compromise was reached, with some of the incidents of the right being spelled out -- food, clothing and housing -- but with the general objective taking the prior place.[7]
The centrality of the right is emphasised by the fact that it has national and international implications, as well as bearing directly on the individual. Many of the internationally declared rights can be recognised and enforced within a state, without much in the way of outside intervention. However, looked at globally, the right to an adequate standard of living for individuals is related more immediately to the economic viability of the state than say the right to freedom of movement or privacy, or even liberty of person. In reality, if the right is to be enjoyed in other than the wealthy countries of the world, it more necessarily postulates a favourable international economic order than do most other CP and ESC rights.[8]
There has been much discussion of the question whether ESC rights are capable of being legal rights in the same way as civil and political rights. Human rights are not necessarily legal rights.[9] However, traditionally, a key aspiration of human rights supporters has been to have the rights enshrined in law and accordingly enforceable. This aspiration has met with two objections, neither of which can in logic be sustained.
The first objection is that CP rights are claims against the state and, as a kind of "negative" right, are legally enforceable, whereas ESC rights are claims upon the state, and are not in the same way enforceable. It is argued that, while it is possible for the courts to restrain actions by government, and thereby to enforce civil and political rights, such as the right to life or the right to freedom of religion, the same is not true of ESC rights such as the right to social security. As claims against the state, it is argued that the thrust of CP rights is to prevent the state from trespassing unduly on the rights of the individual. The battle must be to prevent the state from infringing the right to life by having adequate homicide laws, abolishing capital punishment and so on. Likewise, the power of the state to suppress or place obstacles in the way of expression of a person's beliefs through unfair laws, procedural requirements and religious tests must be limited if freedom of religion and belief is to be enjoyed.
By contrast, it is argued, ESC rights are claims upon the state. To implement a right to an adequate standard of living, to social security[10] or to the highest attainable standard of physical and mental health[11] requires the state to take action that is often highly expensive. That, it is said, is not a function of the judiciary as the enforcers of the law, but of the political and executive arms of government. In essence, these rights are seen as amounting to the imposition of a duty on the state, rather than to the vesting of a right in each individual.[12]
In the abstract, there is something to this argument. But in neither logic nor practice is it sustainable. In logic, it cannot be said that even the relatively uncomplicated CP rights like those to life and freedom of religion are simply claims against the state. Many infringements of CP rights are perpetrated by careless motorists, angry citizens and bigoted individuals, or even by employers who just do not like atheists or trade unionists. No-one denies that these actions by fellow citizens infringe the right. What is then required for their enforcement is that the state should take action through, for example, enacting culpable driving and homicide laws, and that it provide suitable resources to enable the police forces, the courts and the prisons to deal with the offenders. Or, in the case of freedom of religion and belief, what is required is that the state enact anti-discrimination laws that then need enforcing. In practice, courts in Australia will on the whole be wary of reaching decisions that involve large outlays of public funds. But, at least in the application of some civil and political rights, they have signalled a willingness to do so, such as in the case of enforcing the right to a fair trial and the need for counsel to be provided for an indigent defendant on a serious charge.[13]
What then is at issue, ironically, is an Australian cultural propensity to ignore certain facts. Either we are so used to ignoring the cost of implementing CP rights that we fail to notice that there is a cost involved in enforcing the law that lies behind them; or, where the cost is noticed, our cultural bent allows us in good conscience in effect to give priority to a CP right by ignoring the cost (as in Dietrich), while using the same factor as a reason for not implementing an ESC right. Many of those living in our neighbouring countries feel very strongly about this blind spot in our perceptions,[14] and of course the broad Chinese position on the relative importance of CP and ESC rights is well known.[15] Their perception about CP rights is, it would seem, no more "blinkered" than is ours about ESC rights.
The second objection to accepting ESC rights as enforceable in the same way as CP rights is based on a view of what is justiciable. It is in a sense a restatement of the objection just discussed, about the distinction between rights against and claims upon the state. The argument is that CP rights are essentially about protecting the freedoms of individuals. Thus the courts can, by acting on a particular individual, such as a police officer, restrain a person from entering another's property, or damaging another's person. But they cannot so readily enforce an ESC right such as an adequate standard of living, because the obligee, if there is one, is not an individual who can be restrained but the state which must be compelled. Such a compulsion involves, in our legal system, Parliamentary appropriations and the mobilising of a complex of resources. Nevertheless, as will be shown later, the courts have in fact not been insensitive to the needs of persons to continue to earn a living, or not to be harmed unfairly in their economic activities, or to be paid a reasonable wage, or to be employed in fair conditions. They have not gone as far in this direction as might be hoped, but at least they have felt able to recognise and to some extent enforce ESC rights, both at common law and under legislation.[16]
One way of tackling the enforceability objection is to suggest that the perception we have of enforcement is too narrow. It is pointed out that a right can be justiciable in the sense that it may be moderated by a tribunal, such as the AAT or the Social Security Appeals Tribunal, or even by a Human Rights and Equal Opportunity Commission. While not courts of law, these bodies are, it is claimed, able to provide remedies suitable to the circumstances, and so provide an alternative, but not necessarily inferior, method of enforcement.[17] This point is not altogether convincing, because it avoids the main issue: it tries to bypass the objection based on legal enforceability by redefining enforcement to include administrative style enforcement.
Administrative style enforcement, including as it does conciliation processes, is without doubt important, and often the most apt mode. As is implied in the comment above about our own cultural bent, our view of enforcement is peculiar to our own cultural situation. But the straight question must still be confronted, and that cultural bent challenged, by showing that ESC rights, properly understood, are neither in logic nor in practice less enforceable in the strict (traditional legal) sense than are CP rights. This is partly because, as a matter of principle, all human rights, without distinction between CP and ESC rights, should be just as enforceable as other legal rights. ESC rights should not be characterised as being capable, as such, only of some "softer" (administrative) kind of enforcement than CP rights, except insofar as we accord that same measure to other and related methods of ordinary law enforcement. It is also because, it will be suggested, there is no intrinsic difference between the enforcement of what we term CP and what we term ESC rights.[18]
When analysed in terms of state action, the claimed distinction between the enforcement of CP and ESC rights falls away. The enforcement in law of any right can require several modes of action or, perhaps more accurately, a hierarchy of modes. These modes have aptly been described as involving obligations on governments to respect, ensure, protect and promote the right.[19] These modes of obligation are generic, in that they apply to any basic right, and certainly to the groups of CP and ESC rights contained in the International Bill of Rights.[20] Involved in respecting a right is the observance of the right by the government itself, in its own actions. The ESC right to an adequate standard of living (RASL) and the CP right to life (RL) might serve as examples. In relation to the RASL, the government would be expected to provide reasonable wages for its own employees and, where relevant, decent accommodation and so on. In relation to the RL, the government would provide adequate homicide laws and protect the safety of its own workers.
The second mode, ensuring the right, involves making sure that other entities and individuals in the community are constrained to observe the right in their actions, just as the government itself. This may involve ensuring that workers are paid adequate wages, and that proper protection from hazardous machinery is provided. The third mode, protecting the right, would be met in relation to RASL by the government instituting and maintaining machinery to guarantee minimum wage standards, by enforcing housing construction standards, by securing safe food supplies, and so on. In relation to RL, protecting the right might involve developing effective programs for dealing with the spread of the AIDS virus. That is, the government would adopt programs ensuring that it and the community generally would work together to implement the right progressively. The final mode, promoting the right, is seen as a general obligation of a programmatic kind on governments to develop plans to give broader or improved enjoyment of the right. In relation to RASL it might, for example, involve international discussions relating to food distribution and supply, or plans for more equitable sharing of resources within a community that would have the effect of improving the standard of living for certain groups. In relation to RL it could involve new programs for road safety, or revitalised programs for child immunisation or dealing with the recurrence of malaria.
Viewed in this way, there is really no difference between ESC and CP rights, except in that they apply in somewhat distinct subject areas. To some extent, the divide is fortuitous, in that it reflects the early discussions in the United Nations, in which West and East found difficulty in agreeing about modes of implementing the two groups of rights. In either case, implementing the rights may involve all the modes, or alternatively only one or two of them. Whatever mode or modes of implementation are required, the cost involved will be greater or less, depending on a whole range of factors that are not related to the ESC/CP divide. Thus, on the CP side, it may be vastly expensive for particular states to ensure adequate access to the courts for all citizens, or to arrange genuinely free elections, or to introduce a rehabilitative set of institutions for prisoners. In some countries in Asia, where the tradition has been to seek implementation of ESC rights, CP rights are often seen as of secondary importance (if there is a rights dialogue at all). Equally, on the ESC side, it may be seen by many countries as excessively costly to provide for an adequate standard of living or for a fully protective health service. All the rights are interrelated, and implementation of one often has effects on the way others operate, but they are not to be seen as distinct in nature, or as having, as a group, priority over the other group.
Having suggested how the legitimacy and enforceability of ESC rights can be established, and their equality with CP rights, it is appropriate to review the law in Australia in order to attempt to identify provisions that could be regarded as implementing, or as relevant to the implementation of, the right to an adequate standard of living. As suggested earlier, there are more relevant provisions in our law than might have been expected. That is not to say that the provisions have been designed to implement the right. Rather, it is to say that our law contains provisions of either a common law or a statutory nature, mostly the latter, that might be regarded as already providing a somewhat haphazard, but nevertheless substantial, implementation of important aspects of the right.
To bring some order into the survey, the obviously primary need for individuals to have disposable income available is considered first. Although the need for income as such is not specifically mentioned in the ICESCR formulation, it is of central importance, even in a non-cash economy, and is contained by direct implication in the foundation formulation of the right in Article 25 of the Universal Declaration. Article 25 of the Declaration includes references to social services and to "security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood". The need for income is recognised directly or by implication in two other articles: it is the direct focus of Article 7 on the right to work, in which all are to have the right to just and favourable conditions of work, including "fair wages and equal remuneration for work of equal value without distinction of any kind". It is also an essential part of Article 9, which recognises the right of everyone to social security. The point is that Article 11 is in a sense the final standard: if wages (Article 7), social security (Article 9) and so on prove inadequate, then there is still Article 11 which guarantees an adequate standard of living, and progressive improvement. Accordingly, since our system has placed a heavy (and I believe appropriately so) emphasis on availability of disposable income for each individual, I discuss first the provision of fall-back income as an essential, and perhaps primary, part of the right.
After reviewing the income guarantees contained in Australian law, each of the three specific requirements listed in Article 11 is treated in turn: the rights to food, clothing and housing.
There is no recognition in Australian law of the human right to an adequate standard of living, although there are many provisions that reflect to some extent the underlying objective of the right. Nevertheless, in both common law and statute law, particular situations of hardship have to some extent been alleviated for individuals, where the consequence of administration of the rules would have been to deprive a person of the basic means of existence. The provisions tend, however, to be reactive and ameliorative rather than positive and rights-bearing.
At common law, the relevant precedents are few, and are directed at the special situations of three groups of disadvantaged persons: minors, mentally incapacitated persons, and debtors. A minor or mentally incapacitated person was not permitted to be bound in contract except for necessaries, although a reasonable price had to be paid for goods and services suitable to the condition of that person.[21] In bankruptcy, the common law provided some minimum protection for the debtor, in that he or she was permitted to retain clothes actually being worn at the time of the sequestration (possibly not even those if the debtor was in bed!). In the case of defaults on loans, the common law exempted from sequestration things that could not be sold, such as intangibles including bonds or negotiable instruments.[22]
In the legislative field, the main instrument is the Social Security Act 1991 (Cth) . Under it, a system of pensions, allowances and benefits has been instituted that aims to provide income support for persons whose eligibility is primarily determined through being a member of a defined set of categories of need. The Act, substantially revised in 1991 and again in 1993, runs to some 1500 pages and contains eight chapters and 1400 sections.[23] Its object is to provide income support, in most cases means-tested, for persons who fall into defined categories of need.[24] It does this through a system of pensions and allowances, and a special discretionary benefit.
The pensions the Act provides are available for persons on account of age and disability; for a wife, carer or sole parent; for double orphans and for persons with special needs (the latter relating to persons living overseas). The Job Search and Newstart Allowances substitute broadly for the previous system of unemployment benefits. Allowances are also provided for widows, child disabilities, certain pharmaceutical needs and telephones.
Although the pensions and allowances are in policy terms based on identification of need, the effect of the legislation is to make the availability of a benefit subject to the eligibility criteria it lays down for the various categories of persons described in the previous paragraph, rather than by reference to need as such. The Federal Court has observed that the Act --
... makes no reference to the provision generally of support for persons in need. ... [It] contemplates pensions or benefits being available to persons in particular categories, namely those who are aged, or invalids or widows etc.[25]
However, the categorical system is moderated by the inclusion of a discretionary Special Benefit[26] which is payable to a person unable to qualify for other forms of income support and who, in the opinion of the Secretary to the Department of Social Security --
... is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason.[27]
Use of the Special Benefit is restricted by carefully defined conditions, and access to it is difficult. Its main application appears to be to support migrants and some categories of pensioner. Thus it is available to aged migrants who have not been in Australia for 10 years and so fail to qualify for the aged pension,[28] and to migrants who are unemployed and ineligible for the relevant allowances28a and it was used in earlier years to support carers28b and primary produces in times of hardship28c. It has also been paid to single mothers in the late stages of pregnancy, when unemployment-related payments cease and before sole parent pension payments can start. Nevertheless, in stating as a basic criterion the inability to earn a sufficient livelihood, the Special Benefit must be seen as coming close in principle to implementing the right to an adequate standard of living. This point is discussed further in the final section of the paper.
The benefits payable under the Social Security Act are not fully conferred legal rights, but rather are statutorily provided supports whose availability is subject to administrative discretions and legal process rights. In the somewhat infelicitous words of counsel for the Commonwealth in Green's case, the benefits are not claimable as of right, but represent in effect "no more than gratuities" payable at the discretion of agents of the government.[29] At the same time, a claimant may, with certain exceptions, seek a review of a decision under the Act,[30] either internally or by a tribunal. Under the internal review provisions, which must be used before other forms of review are available,[31] the Secretary has power to review decisions (even if an application has been made to a tribunal); is vested with wide powers including varying or setting aside the decision complained of, or making a new decision;[32] and may permit a payment to continue pending determination of the review.[33] When a decision is made as a result of an internal review, the claimant must be advised that an appeal may be made to a tribunal.[34] The normal request for such a review will be to the Social Security Appeals Tribunal (SSAT) [35] which, in its operations, is directed to:
pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.[36]
Accordingly, while there is a legal process right to seek review of the exercise of administrative discretions under the Social Security Act,[37] there is no right to an award based on need, as is the case in some Provinces in Canada.[38]
The Act requires annual indexing of the rates payable under it, and this represents an important step towards a guaranteed minimum real income. The Act also achieves a degree of equity among Social Security Act beneficiaries and as between them and the rest of the community. These results are achieved by means testing and by moving individuals from one rate or form of income supplement to another, as the circumstances of the beneficiaries change. Notwithstanding these provisions, the Act cannot be said, in the area of income protection, fully to implement Article 11, because it does not provide for a continuous improvement in living standards.
The recent initiatives of the former Commonwealth government to ensure that employers set aside a proportion of wages to fund superannuation for individuals on retirement[39] represent a further measure to ensure that, at a time when demographic trends indicate that a higher than usual proportion of the population will be beyond active working age, there will in the future be sufficient funds to provide for an adequate standard of living in retirement. This kind of measure would fit neatly within the "promoting" (fourth) mode of realising rights.
The special needs for income support of other groups within the community have also been recognised by specific legislation, which in one case requires support from private rather than public sources. These arrangements have given priority to women, children and young persons, such as in arrangements provided for separated persons;[40] to those with responsibilities for child care who are working or have recognised study or training commitments;[41] and to tertiary students.42 Private resources have been mobilised under the child support legislation for the children of separated families. The legislation requires the disadvantaged person caring for children to be provided with assistance from the other partner rather than from public sources, and on a regular and timely basis.[43] Under the scheme, the non-custodial parent is to provide maintenance, pursuant to a court order or under a collection agency maintenance liability, to the parent caring for under age children of the marriage.[44] The maintenance liability amounts are normally deductible from the wages or salary of the person paying[45] and are made by the Child Support Registrar to the person entitled to the payment, rather than direct by the non-custodial parent.[46] Detailed provisions lay down a formula by which the amounts payable under the child support arrangements are to be determined,[47] and also facilitate consent arrangements.[48]
This review of welfare assistance has focused on the Commonwealth. It should not be overlooked that, in addition to this, all States and Territories provide important services for pensioners and less advantaged persons. These range from support for families in difficulty, foster care for children and support for people with mental and physical disabilities to rent and rate relief.
Taken together, the arrangements provided by the Commonwealth's legislation, and by other levels of government, can be regarded as coming close to complying with the essential requirements of the ICESCR as they relate to income aspects of a minimum standard of living.
Neither statute law nor common law recognises a right to food as such. There is, however, indirect recognition of the right to food in the common law and in certain statutes. The common law position relating to necessaries for infants, to bankruptcy and to debtors has been outlined above.[49]
Income tax law has the effect of encouraging private donors to support people in need of food and clothing. Thus a person may claim, as a deduction from taxable income, gifts and contributions to a wide range of funds and institutions described according to the nature of their activities, such as to support voluntary and charitable activities in the areas of health, education and welfare.[50] Of particular relevance in the context of the right to food and clothing is the welfare and rights group of funds and institutions, which covers bodies "established and maintained for the relief of persons in Australia who are in necessitous circumstances."[51]
Sales tax law, combined with customs law, has the effect of ensuring that basic foods are free of sales tax and import tariffs, thereby guaranteeing lower prices than in most comparable countries. Under sales tax legislation, basic foods are exempt, and most other foods attract the lowest rate.[52] Equally, in customs and excise legislation, foodstuffs are either exempted, or are taxed at low rates.[53]
Accordingly, one may say that, once again, the evolution of our state welfare system, along somewhat surprisingly with provisions in taxation law, has had the effect of providing quite strong support for the substance of the right to food.[54] The limitations on this are that there is no formal recognition, and that the "no more than a gratuity" comment is even more apt than it is in relation to the right to pension income. The poor person has to rely for food support more on the benevolence of individuals aided by tax concessions than on the welfare mechanisms of the state.
The right to clothing receives no recognition as such in Australian law, although limited taxation concessions, and relief to debtors and bankrupts, in effect give some support to the right.[55] In the taxation fields, clothing and footwear are exempt from sales tax[56] which, as with the exemptions for foodstuffs, ensures that market prices are not increased by the addition of government levies. Further, the cost of clothing for work purposes may be claimed as an income tax deduction,[57] but only where it is a condition of employment[58] that the employee must at his or her own expense provide and maintain a uniform. Bankrupt persons are permitted to retain their clothing.[59] In Queensland, a person may be allowed to sue or defend a matter as a pauper on proof that "the person is not worth [$200]", and wearing apparel is excepted from the calculation of worth.[60]
Here again, there is some recognition of the cost of clothing and of its importance to individuals. There is even less anecdotal evidence to assess the effect of exemption of clothing from tax, but the effect must be reasonably significant. Nonetheless, the recognition of the right to adequate clothing is hardly substantial or targeted to those in greatest need, except perhaps in the cases of work expenses (often for less well paid workers) and bankruptcy. It is worth noting, having in mind the reference earlier to the inclusion of income in this analysis, that the support is all given to people who already have at least some disposable means, and has little relevance to those without some form of income.
There is no legal right to adequate housing in Australian law, but many measures have been directed at assisting people to obtain secure and adequate accommodation.
Since World War 2, the Commonwealth and the states have worked under successive Commonwealth-State Housing Agreements, the current agreements being those negotiated in 1989. The current head legislation, the Housing Assistance Act 1989 (Cth), has the effect of consolidating and integrating in an overall, rights-including scheme a good deal of earlier more specific legislation. It is essentially a framework of enabling provisions such as appropriations, setting of dates and arrangements for matching payments. Annexed to the Act is the rights-including, framework Housing Agreement between the Commonwealth and the states.
Under the Act the Commonwealth agrees, over the ten financial years commencing in 1989 and ending in 1999, to provide in each year a sum of about one billion dollars[61] and, in the first grant year, to include further amounts for housing assistance for young people, and for mortgage relief.[62] There is provision in the legislation for expenditure on research and evaluation, and a requirement that each State and Territory is to sign the scheduled Agreement as a condition of receiving grants, which they are to match in respect of untied assistance.[63]
Under the framework Agreement, the opening words of the key Recital D, which is part of the preamble to the Agreement, are:
The primary principle of this agreement is to ensure that every person in Australia has access to secure adequate and appropriate housing at a price within his or her capacity to pay by seeking to: * alleviate housing-related poverty; and * ensure that housing assistance is, as far as possible, delivered equitably to persons resident in different forms of housing tenure.[64]
The objectives of the Commonwealth-State housing arrangements are further defined in the same Recital (D) to include as "the primary consideration ... the needs of people", and rental assistance is stated to be "a key element" in the Agreement. A stipulation is that people in rental housing "shall have security of tenure" and, if required to leave their home, "a choice of dwellings and locations appropriate to the tenant's needs." [65]
In addition to providing funding for home purchase and rental assistance, the Commonwealth undertakes to give support by way of what is termed "specific housing assistance." Under these arrangements, the Minister is authorised to authorise grants for specific groups in accordance with agreed guidelines. The purposes of the support include rental housing assistance for pensioners and Aborigines; mortgage and rent relief; crisis accommodation; local government and community housing; and other programs determined after Commonwealth-State consultation.[66]
The Agreement also requires that the arrangements for housing assistance should include statements of user rights and incorporate measures to enable participation by applicants for, and recipients of, the assistance. Housing assistance is to be provided without discrimination on grounds of "age, sex, marital status, race, religion, disability or life situation."[67]
Apart from the Commonwealth assistance for capital construction and rent relief, landlord and tenant legislation operative in each state and territory protects tenants from summary eviction, and controls or makes subject to regulation the level of rents through permitting variation only by defined processes. Public health law and building standards legislation, and local government zoning laws, also provide elements of protection.
Many arrangements exist to assist in the accommodation of particular groups. While the provision for aged persons and other specific groups is now in general included in the Housing Agreement arrangements, there are still special arrangements for chronically ill, including in particular aged, persons. Under these special arrangements, persons who are ill, or who suffer from particular disabilities, may be accommodated in refuges and hostels.[68]
Other special arrangements apply for homeless persons. Since 1985, the Commonwealth has provided grants to the states and territories[69] that are designed "to ensure that the homeless people in crisis in Australia have access to adequate and appropriate transitional supported accommodation and related support services."[70] The focus is on transitional accommodation and assistance, with an emphasis on ensuring that individuals retain maximum independence.[71] The services provided are not to discriminate on grounds of "sex, marital status, race, religion, disability or life situation".[72]
Mention should also be made of a number of other initiatives. There are the efforts made, mainly in past years, to encourage first home owners to invest early in building a home,[73] and the current exemption of one's principal residence from capital gains tax.[74] Special arrangements have been made to assist in the housing of Aborigines and Torres Strait Islanders through powers granted to the Aboriginal and Torres Strait Islander Commission. [75] The Commission has substantial control of all Aboriginal housing programs and can also facilitate loans from commercial lenders by providing guarantees.[76] Special arrangements also operate to assist members of the defence forces.[77] Finally, there is protection for members of minority or disadvantaged groups through the declaration in anti-discrimination legislation in all Commonwealth, state[78] and territory jurisdictions (except Tasmania) that discrimination of the types proscribed is unlawful in the provision of accommodation, and sometimes in dealings in land.[79]
All this means that in many respects the overall arrangements for the provision of housing or other forms of accommodation to those in need comply with much of what would be required to fulfil Australia's international obligations to provide adequate housing.[80] There are no doubt still gaps in the provisioning, but the basic scheme is comprehensive, and is designed to ensure appropriate targeting, and absence of discrimination. Nevertheless, as with the other aspects of the right discussed, the significant absence in the area of housing is any element of enforceability. In the area of landlord and tenant law, improving arrangements are made for access to special tribunals and to dispute resolution services. But in the area of respect by the state for those who need to look to it for housing, the absence of rights provisions is clear.
From this necessarily summary account of provisions in Commonwealth and state law, it can be seen that there is a wide range of largely legislated arrangements that have the effect of providing the substance of many aspects of the right to an adequate standard of living. The finding is encouraging, both in itself and as providing a focus for investigating what action might be taken to translate what is currently available into the first elements of an enforceable right.
Setting aside the option of introducing a charter of rights by Constitutional amendment, two sources of rights exist: legislation and the common (or judge-made) law. The essence of all legal rights is that they can be protected by the aggrieved party by legal process. Rights are often divided into two categories: substantive and procedural. A substantive right is created in our legal system by providing for a particular matter, usually of a policy nature, to be justiciable, as for example has been done in recent times by the legislature in enacting freedom of information legislation, and was in earlier times done by the common law in the area of property law in general and of trespass in particular. Process rights may also be created by legislation, but there is in addition some scope for their creation through application of the common law. Process rights arise when the law, while not providing a substantive right, guarantees some element of fairness in relation to an administrative or judicial process. A legislated example is the provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth) which allow a person aggrieved to make application to the courts for a statement of reasons for a decision, or for review of a decision to be made as to legality.[81] Common law examples are the requirements that a person charged with an offence be present at his/her trial, and that procedural fairness be observed in reaching administrative decisions.[82]
The legislative method of creating rights is of more potential than the common law method when substantive rights are under consideration, because of its greater flexibility, its freedom from dependence on a particular case being brought up for litigation, and its capacity to act without reference to past law. The next sections consider what options are available by way of a legislated right, and a role for the courts through the common law.
Legislation may create single rights, or rights in a group, and may or may not seek to protect the rights so created by some form of "entrenchment". The most common form of legislative creation of rights is the ad hoc creation of a right related to an existing area of law, as for example in the provision of an improved right for tenants to be protected against summary eviction. This form of rights is not particularly useful in the context of creating new general rights such as the right to an adequate standard of living, where some comprehensive statement of a core right is required.
Core kinds of rights are not, however, unknown in Australian law. For example, the Freedom of Information Act 1982 (Cth) is designed to provide a person with a right to access to information held by the government relating to that person. The long title states that the Act is "to give members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies" (emphasis added).[83] The first substantive section of the Act provides that --
3. (1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by -- (a) making available to the public information about ... departments and public authorities ...; and (b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons ... ; (2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.[84]
This form of enactment states not only that a person may have access to information about him or herself, but that there is to be a "general right", and ensures that the courts will recognise and enforce it. At the same time, the legislation specifies very extensive exemption categories that have often been criticised as negating in substantial part its general object. The primary recourse where access is refused is to the Administrative Appeals Tribunal, rather than direct to the courts. This is, as mentioned earlier, an alternative form of enforcement and may in cases like this be justified, where the question is not so much one of interpreting the law as applying it.[85]
A more comprehensive mode of introducing rights was contained in the Australian Bill of Rights Bill 1985, that failed after lengthy debate to pass the Senate during 1986. In that Bill, of which Attorney-General Senator Gareth Evans was the primary architect before he became Foreign Minister, a large number of general rights was set out in Pt II of the Act entitled "An Australian Bill of Rights".[86] The rights contained in Pt II of the Act were to be enforced primarily by the Federal Court. Where legislation enacted before the Bill of Rights was involved, the court was to read down ("deem to be repealed") any inconsistent provisions.[87] Where legislation enacted after the Bill of Rights was involved, the courts were to interpret it in a manner that would give expression to the right in the Bill unless the later legislation provided --
... by express words of plain intendment, that its provisions, to the extent to which they are in conflict with the Bill of Rights, are to prevail over the Bill of Rights.[88]
This latter way of proceeding probably makes the rights-conferring legislation as effective as is practicable, consistent with the doctrines of Parliamentary supremacy as currently understood. The difficulty is that courts have, at least in recent times, been wary of an interpretative direction that appeared to negate a subsequent incompatible provision. Nevertheless, over time it is possible, given the nature of the Bill of Rights or other significant right-conferring legislation, that it would come to have an application wider than in the case of other legislation.[89] It would be no mere "Dog Act" but be implementing major international rights provisions, and could as such be increasingly effective, as the 1960 Bill of Rights Act in Canada may well have become had it not been superseded by the Charter in 1983.
Neither mode of legislation has proved satisfactory to those who want to see overriding rights provisions incorporated in the law. But the times are changing, and it is not impossible that the courts may be prepared in the future to give greater weight to provisions that have the effect of conferring individual rights, particularly against governments. Ironically, the very move to "privatise" certain government functions may lead to interpretations by the courts that perceive, behind the privatising, the hand of the state in providing services and benefits. To the extent that the perception makes such "privatised" action distinguishable from purely commercial services provided for profit, it may lead the courts to subject it by analogy to the normal curbs on executive power.[90]
The conclusion is that there is no legal objection to providing general rights through legislation. What we encounter once again is that fatal hurdle: our legal culture. That culture results in an unwillingness in governments and legislatures to confer enforceable substantive, as distinct from process, rights on individuals in the area of ESC rights; and in a reluctance by courts to exercise powers that our culture tends to make us regard as inappropriate, either because of their rights-bearing element or because of the excessively formal application of the doctrine of the separation of powers.
However, there are signs that, in an era in which demands on government are increasing, the courts are modifying their role. The change is occurring because the courts, in applying their traditionally wary approach to the exercise of executive power, have begun to target the ever-widening outreach of that power. The consequence of wider executive functions is an increasing threat to the rights and liberties of individuals. Increasingly, Australian courts seem to be prepared to declare that individuals have rights that can even assume the status of Constitutional implications.[91]
The way courts have approached the right to a fair trial, although not related to the exercise of a wider executive power, usefully illustrates the growing willingness of the courts to protect the rights of individuals.. As recently as 1978 the High Court, in McInnes case,[92] with only Murphy J dissenting, held that, in the words of Barwick CJ --
... an accused does not have the right to be provided with counsel at public expense. He has, of course, a right to be represented by counsel at his own or someone else's expense. (emphasis added)[93]
That kind of right is of course only a privilege (or "benefit", to recall Green's case), which means that those who have sufficient means to meet the high cost of litigation will not be prevented from bringing a case; but it is not a right enforceable against the state. That situation was changed when, in 1992, the High Court in effect endorsed Murphy J's dissent by holding that a person does, in a serious criminal trial, have a right to counsel enforceable at law: the absence of counsel may prevent the case proceeding to a hearing because of the likelihood that a fair trial would not result.[94]
The right to a fair trial has been lurking in the background as a general principle for a very long time. However, it has only been within the last five years, with the decision in Dietrich, that an important new incident of the right -- to be represented even if it means at the cost of the state -- has been recognised as an enforceable right. This step by step approach to the implementation of a general basic right is very much within the tradition of our legal culture. As cases come forward, the incidents of the right can be pieced together by the courts, by drawing on previously stated general principle and, as cases come forward, identifying which proposals are, and which are not, enforceable. Given that the international obligation with respect to ESC rights is that they be implemented "to the maximum of [the state's] available resources, with a view to achieving progressively the full realisation of the rights recognised",[95] such a method would appear to be in substantial accord with Australia's international obligations.
To realise as enforceable in law the right to an adequate standard of living, even given the range of existing law as noted above, will require a clear direction in principle from the Parliament. The right is not one recognised in any full sense by the courts, as is the right to a fair trial, and can hardly be regarded as falling within the ambit of the judicial power, as does that right. But a clear direction from the Parliament, even of an interpretative kind as in the 1985 Bill of Rights,[96] that the right is to be recognised in interpreting any relevant statutory or common law, would allow the courts to embark on the kind of developmental treatment involved in the right to a fair trial. As suggested above, there are ample precedents already for giving some kind of legislative sanction to a legal right of a general kind.
It may be objected that to confer a legal right to an adequate standard of living would be to open up a largely unlimited scope for judicial inventiveness, a virtual Pandora's box. That kind of "floodgates" reaction is again almost a cultural trait of our society. However, this is where the analysis of the relevant existing law contained in the preceding section of this paper becomes relevant.
It would, for example, be possible to provide, using the Freedom of Information Act as a precedent, for a legal right to be created to an adequate standard of living that would focus particularly on the aspects of Article 11 discussed above -- the rights to minimum income and to food, clothing and housing. Within that broad principle, it would be a relatively small step to provide, within the Social Security Act arrangements, for an underlying right to a minimum income. The coverage given by the Act, taken along with the Special Benefit, is now so comprehensive that relatively few people would be likely to be added if the conditions of the Special Benefit were revised to allow for it to become a right to a "safety net" income.[97] Providing for the availability of the Special Benefit as a right would mean that, provided the carefully drawn criteria of eligibility were met, a person could seek to enforce the payment. The courts, aware of the objects, could then be relied upon to fill in the gaps and so guarantee a genuine right, and the budgetary implications would not need to be unduly large.
The same could, with no doubt somewhat more need for careful delineation of scope, be said of the right to adequate housing. Initially, for example, the right might be defined so as to empower those lacking decent accommodation.[98] It might be implemented in part, as in the social security system, by establishing a tribunal. The tribunal could be given authority to compel at least state providers of accommodation, or of rent subsidy, to arrange assistance in order to implement the right when other reasonable alternatives were not available. The machinery might also include SSAT type review, and possible court enforcement where matters of law were at issue.
Given the adequacy of the income and housing aspects of the right to an adequate standard of living, the rights to food and clothing might well, in our society, be left over for later consideration, or they might be included as providing the basis for claims, in certain circumstances, on the rights to income and housing support.
My overall point is that Australia is not very far from being able, without major cost, to move to immediate enactment of the most central incidents of an enforceable legal right to an adequate standard of living as defined in the ICESCR. The new, right-conferring legislation would integrate with already existing statutory provisions, and would reinforce the social security (income maintenance) and housing arrangements, as just discussed. The cost, if it proved likely to be substantial, could be curtailed by suitable restrictions or limitations, not so much of the general "public order, health and morals" kind so common in the international human rights instruments, as in specific or even process right terms. Our courts have been very skilful in providing substantive protections and rights through the enforcement of process rights, and much could be done by ensuring that all those involved in the provision of income, housing and welfare benefits so acted that what they did would be in pursuit of the goal of an adequate standard of living, without discrimination and with respect for the dignity of each human being.
If a general right, with whatever limitations were thought essential, were introduced to undergird the already very substantial provision for income and accommodation, it could then be left to the tribunals and courts to apply and balance the relevant rights and obligations in the details of each particular case and so to develop, carefully and progressively, the incidents of the right. Australia would be showing the way to implementing, in a modern Western style democracy, and in accordance with its international obligations, one of the central provisions of the International Covenant on Economic, Social and Cultural Rights. It would also be recognising the dignity and worth of all persons living here, even if in poverty, by guaranteeing to each a progressively improving enjoyment of the right to an adequate standard of living.
[1] MA (Oxf), LLM (Melb), Visiting Fellow in the Faculty of Law, Australian National University.
[2] A careful examination of the growing reliance of individuals on the welfare system in Australia, and of the effects of policies using the social welfare and tax systems, and needs-based or universal systems, to provide benefits, is contained in Baume PE "Towards a liberal welfare policy" (1995) 54 Australian Journal of Public Administration at 196.
[3] The International Covenant on Civil and Political Rights, which entered into force in March 1976, was not ratified by Australia until August 1980.
[4] For a further discussion of this aspect, see Bailey P Human Rights: Australia in an International Context, Butterworths, Sydney, 1990, pp 319 and 250-1. Note also the comment in Devereux A "Australia and the right to an adequate standard of living" (1991) 20 Federal Law Review 223 at 230: "civil and political rights [such as the right to life] may seem rather empty without regard to the economic and social rights [such as the right to an adequate standard of living] which underpin them".
[5] This is not to say that there is a hierarchy of rights. On this point see ibid, and Meron T "On a hierarchy of international human rights" (1986) 80 AJIL 1.
[6] The right as formulated in Article 25 of the Universal Declaration of Human Rights 1948, from which the two Covenants were largely developed, gave more emphasis to the incidents of the general right -- "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
[7] There was discussion of what standard should be specified, and in the end the term "adequate" was preferred to "decent". Craven MCR, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Clarendon, Oxford, 1995) pp 291-3. The book is an excellent survey of the history and contents of the Covenant and of the developing mechanisms for its implementation and, at least for the present, must be regarded as the primary reference for issues relating to the Covenant.
[8] The meeting in Copenhagen in early 1995 of the World Summit for Social Development, with its emphasis (commitment 2) on "the goal of eradicating poverty in the world through decisive national actions and international cooperation, as an ethical, social, political and economic imperative of humankind" is a current endorsement of the basic objective of the right to an adequate standard of living. See Disney J After the Summit: Papers on the Outcomes and Aftermath of the World Summit for Social Development (Center for International and Public Law, Australian National University, Canberra, 1995).
[9] Bailey, fn 4 above, 2-5 and references there cited.
[10] International Covenant on Economic, Social and Cultural Rights, Art 9.
[11] International Covenant on Economic, Social and Cultural Rights, Art 12.
[12] In this sense, the right to an adequate standard of living could be regarded as an aspect of either a duty in the state to provide social protection for those within its jurisdiction, or possibly as one aspect of a right to social protection, which might well cover a broad range of CP and ESC rights. The general argument against ESC rights as full rights is comprehensively put in Vierdag E, "The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights" (1978) 9 Netherlands Yearbook of International Law 69.
[13] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[14] Differing perceptions of human rights within the Asian region are discussed in Abdullah F Bailey P et al "Human rights" in Milner A(ed) Comparing Cultures (OUP, 1996) Ch 2.
[15] However, the Chinese position is more complex than is often recognised. They have a view that CP rights are, to the extent that they are important, subsumed in ESC rights, eg right to life in right to an adequate standard of living. See Kent A Between Freedom and Subsistence: China and Human Rights (Oxford, 1993) pp 53-67 (downgrading CP rights), 18, 30-1 (subsuming CP in ESC rights).
[16] It often fails to be recognised that, to the extent that anti-discrimination law enforces employment-related rights, it is protecting an economic right -- the right to work. Complaints relating to employment form roughly two thirds of all discrimination complaints.
[17] This argument is put forward in Addo M "Justiciability re-examined" in Beddard R and Hill DM Economic, Social and Cultural Rights: Progress and Achievement (Macmillan, 1992).
[18] The enforcement of ESC rights is the subject of an illuminating comment by the ICESCR Committee on Economic, Social and Cultural Rights in its General Comment No. 3, UN Doc E/23/Annex III. The Committee discusses the differences between the enforcement provisions in Articles 2 of the ICCPR ("immediate implementation") and the ICESCR ("progressive implementation") and suggests that there is no material difference despite the differing description of the enforcement obligation.
[19] One of the earliest expositions is by Van Hoof G "The legal nature of economic, social and cultural rights: a rebuttal of some traditional views" in Alston P and Tomasevski K (eds), The Right to Food, International Studies in Human Rights (Martinus Nijhoff, The Hague, 1984) p 97, and reproduced in Steiner HJ and Alston P International Human Rights in Context: Law, Politics and Morals (Clarendon, Oxford, 1996) pp 283-5.
[20] The International Bill of Rights is composed of the Universal Declaration of Human Rights,
the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights with its two Optional Protocols.
[21] The common law position has now been included in legislation in all jurisdictions: Sale of Goods Act 1954 (ACT) s 7; Sale of Goods Act 1972 (NT) s 7; Sale of Goods Act 1923 (NSW) and Minors (Property and Contracts) Act 1970 (NSW) (provides that where a minor participates in a civil act and the participation is for the minor's benefit, the civil act is presumptively binding); Sale of Goods Act 1896 (Qld) s 5; Sale of Goods Act 1895 s 2 (SA); Sale of Goods Act 1896 (Tas) s 7; Goods Act 1958 (Vic) s 7; Sale of Goods Act 1895 (WA) s 2. In the legislation, "necessaries" means goods suitable to the condition and life of the infant or other person and to his or her actual condition at the time of sale or delivery. Further, the rights of a lender to a minor may be subrogated to those of a creditor, to the extent that the proceeds of the loan are used to pay for necessaries: The Laws of Australia Equity Vol 15 [22].
[22] For an account of both bankruptcy and debtor law, see Australian Law Reform Commission, Debt Recovery and Insolvency, Report No. 36 (AGPS, Canberra, 1987) esp at pp 52-3, 142-3.
[23] A general and up to date description of the new system, as thoroughly revised in 1993, is contained in Carney T and Hanks P, Social Security in Australia (Oxford, 1994).
[24] Social Security Act 1991 (Cth), Long Title.
[25] Lambe v Director-General of Social Services [1981] FCA 171; (1981) 38 ALR 405 at 411 (Fed Ct FC). For an assessment of the equity effects of targeting achieved through the categorical system, see Mitchell D, Harding M and Gruen F "Targeting welfare" (1990) 70 The Economic Record, Economic Society of Australia, 315. It should be noted that the Commonwealth Government, through the Budget Standards Project, is developing two indicative budget standards for Australian welfare purpose, a modest and a low cost standard. The Budget Standards Research Unit is expected to report about the end of 1997.
[26] Social Security Act 1991 (Cth) s 729.
[27] Social Security Act 1991 (Cth) s 729 (2)(e). Emphasis supplied.
[28] Raper M (ed) The Independent Social Security Handbook, 2nd ed. (Welfare Rights Centre, Pluto Press, 1994) 441.
28a See Re Kandasamy and SDSS (1987) 37 SSR 470.
28b Re Albrecht and Director-General of Social Security (1983) 16 SSR 160.
28c Re Vavaris and Director-General of Social Security (1983) 17 SSR 173.
[29] Green v Daniels (1978) 51 ALJR 463 at 469 (HC per Stephen J, sitting alone).
[30] Social Security Act 1991 (Cth) Pt 6.1, esp s 1240.
[31] Ibid, s 1247.32 ibid, s 1239.
[33] Ibid, s 1241.
[34] Ibid, s 1244.
[35] Ibid, s 1247.
[36] Ibid, s 1246. An appeal lies from the SSAT to the Administrative Appeals Tribunal (AAT): Social Security Act Pt 6. The AAT exercises its ordinary powers of review and, if appropriate, may make a fresh decision under the Act (ss 1287-1294).
[37] For a discussion of the implications of fixed legal rules as against the use of administrative discretion, see Carney T and Hanks P Social Security in Australia (Oxford, 1994) pp 257-264.
[38] Lambe v Director-General of Social Services [1981] FCA 171; (1981) 38 ALR 405 at 409-10.
[39] Superannuation Guarantee (Administration) Act 1992 (Cth) and Superannuation Legislation Amendment Act (No. 1) 1995 (Cth) s 4.
[40] Child Support (Registration and Collection) Act 1988 (Cth).
[41] Childcare Rebate Act 1993 (Cth) s 28.
[42] Student Assistance Act 1973 (Cth) and Austudy Regulations.
[43] Child Support (Registration and Collection) Act 1988 (Cth) s 3(1)(b).
[47] Child Support (Assessment) Act 1989 (Cth) Pt 5.
[49] See text surrounding fn 13.
[50] Income Tax Assessment Act 1936 (Cth) s 78.
[51] Income Tax Assessment Act 1936 (Cth) s 78 Table 4.1.3.
[52] Sales Tax Assessment Act 1992 (Cth) ss 16, 24, Sales Tax (Exemptions and Classifications) Act 1992 ss 4, 14, Scheds 1 Ch 7, 2 items 11, 12, 13, 14.
[53] Customs Tariff Act 1987 (Cth) ss 6, 13, 22, 23, Sched 3 Chs 1-21.
[54] Most Australians who travel overseas, and many visitors to Australia, comment on the relative cheapness and quality of the food available in Australia, compared with what is available elsewhere. Although not readily quantifiable, this adds weight to the point that the exemption of foodstuffs from taxation is a significant factor in supporting decent living conditions.
[55] See text surrounding fn s 21, 16, above.
[56] Sales Tax (Exemptions and Classifications) Act 1992 (Cth) s 14, Schedule 1 Ch 8.
[57] Income Tax Assessment Act (Cth) 1936 s 51.
[58] FCT v Forsyth (1979) 10 ATR 179 at 182; 79 ATC 450 at 458.
[59] See fn 22 above.
[60] Rules of the Supreme Court of Queensland, Order 13 r 1.
[61] Housing Assistance Act 1989 (Cth) s 7.
[62] Ibid, ss 8, 9. Grants under these headings have been continued.
[63] Ibid, ss 14 (research etc), 4, 5 (agreements) and 15 (matching -- the formula for matching is contained in cl 13 of the scheduled agreement). The matching amount was some $300 million in the first year.
[64] Ibid, cl 6.
[65] Ibid, Sched 1 -- Form of Housing Agreement, Recital (D), paras (a), (b).
[66] Ibid, Sched 1 -- Form of Housing Agreement, Pt XII.
[67] Ibid, Schedule 1 -- Form of Housing Agreement, Recital (D) (a) and Part XI.
[68] Through the complex arrangements under the National Health Act 1953 (Cth) and the Nursing Homes Assistance Act 1974 (Cth), there is now a wide range of people who can enter nursing homes which receive a benefit from the Commonwealth that is paid according to the standard of the nursing home and the time the patient occupies a bed.
[69] Supported Accommodation Assistance Act 1985 (Cth), now superseded by the Supported Accommodation Assistance Act 1989.
[70] Supported Accommodation Assistance Act 1989 (Cth) Sched 1 -- Form of Agreement, Recital C.
[71] Ibid, para (i).
[72] Ibid, para (iv).
[73] Stamp duty concessions are available in the ACT (First Home Buyers Scheme Revenue Circular No 40 of ACT Revenue Office, 12 May 1993); in NSW (Stamp Duties Act 1920 s 66A,
and see also ss 45, Schedule 2A and 45AA, Schedule 2B); in Queensland (Stamp Duty Act 1894); in SA (Stamp Duty Act s 71C); in Tasmania (Stamp Duties Act 1931 s 70 f); in Victoria (Stamps Act ss 71A and 71B); and in Western Australia (Stamp Duties Act s 75AE). There are no concessions in the Northern Territory.
[74] Income Tax Assessment Act 1936 (Cth) s 1160ZZQ.
[75] Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 16, 18.
[77] See in particular the Defence Service Homes Act 1913 (Cth) and the Defence Force (Home Loans Assistance) Act 1991 (Cth).
[78] Covering only sex discrimination in Tasmania.
[79] For example, Racial Discrimination Act 1975 (Cth) s 12, Sex Discrimination Act 1984 (Cth) s 23, Disability Discrimination Act 1992 (Cth) s 5.
[80] For a perceptive, and also critical, assessment of the rights-conferring aspects of the arrangements, see Devereux A, fn 4 above.
[81] The relationship between substantive and process rights is complex, and is not discussed in this paper. In the United States, the inclusion of a right to due process in the 5th and 14th amendments has led to the development of "substantive" as well as "formal" due process rights.
[82] It is interesting that the provisions in the Social Security Act 1991 (Cth) referred to above that establish mechanisms for substantive review of a decision by an internal process, and that also provide for external review and decision by a special tribunal with decision-making powers, or by a court where issues of legality are involved, are in effect a combination of the two forms of review -- substantive and process. But they are not made against a substantive right: they relate to eligibility to receive a benefit.
[83] Freedom of Information Act 1982 (Cth).
[84] Ibid, s 3 (emphases added).
[85] Another method of stating rights is used in the Disability Services Act 1986 (Cth). There, the Minister is required to table guidelines containing a statement of the principles and objectives to be furthered. Unless disapproved by either House within 15 sitting days of tabling, the guidelines are to take effect from the end of that time (s 5). The guidelines contain a charter of rights, but are required to have regard to "the limited resources available" and to "the need to consider equity and merit in accessing those resources" (s 3(2)).
[86] The rights were based on those included in the International Covenant on Civil and Political Rights.
[87] Australian Bill of Rights Bill 1985 cl 11.
[88] Ibid, cl 12(2).
[89] In this respect, the somewhat limited use of s 15AA of the Acts Interpretation Act (Cth) 1901 need not necessarily be a precedent, and the interpretation yielding to the decision of the Supreme Court of Canada in R v Drybones (1970) SCR 282 may be of more suasion.
[90] The comment by Mason CJ in Australian Capital Television v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 about the hand of the Executive being seen as lying behind, and determining, the way the Parliament had amended the Broadcasting legislation could be applicable a fortiori to the privatised services of the state. For a comment by the Commonwealth Ombudsman on the dangers, see Smith P "Form vs substance" in Cole K (ed) Administrative Law and Public Administration: Form vs Substance (AIAL, 1996) and articles by Tang A, Hogan M and Rogers G, and O'Brien D, in Pearson L (ed) Administrative Law: Setting the Pace or Being Left Behind? (AIAL 1997) .
[91] The freedom of political communication cases are particularly relevant: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 and Nationwide News Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 now affirmed and applied in Langer v Australian Broadcasting Corporation [1997] HCA 25; (1997) 71 ALJR 818. See also, in the area of the protection of private property, Plenty v Dillon [1991] HCA 5; (1990) 171 CLR 635.
[92] McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575
[93] Ibid, 579.
[94] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[95] ICESCR Art 2.1.
[96] See text at fn 87 above.
[97] It will be recalled that the criterion for eligibility for the Special Benefit is that a person is "unable to earn a sufficient livelihood": Social Security Act 1991 s 729(2)(e). See text at fn 27 above.
[98] There is already an emphasis on people in rental housing who need crisis accommodation, which the proposed right might well cover -- see text at fns 64, 69 above.
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