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Otto, Dianne; Wiseman, David --- "In Search of 'Effective Remedies': Applying the International Covenant on Economic, Social and Cultural Rights to Australia" [2001] AUJlHRights 2; (2001) 7(1) Australian Journal of Human Rights 5

In search of ‘effective remedies’:
Applying the International Covenant on Economic, Social and Cultural Rights to Australia

Dianne Otto and David Wiseman [*]

On 1 September 2000, the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR) handed down its Concluding Observations[1] following its review of Australia’s compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR).[2] Just three days earlier, on 29 August 2000, the Australian Government had released the findings of its own review of Australia’s interaction with the UN treaty committee system, by way of a press release.[3] This review had been announced by the Government on 30 March 2000, following criticism of its amendments to the Native Title Act 1993 (Cth) and of mandatory sentencing laws in the Northern Territory and Western Australia by the Committee on the Elimination of Racial Discrimination.[4] The outcome of the Government’s review, which did not make its terms of reference publicly available or involve any public consultations, was the announcement that the treaty system needs ‘a complete overhaul’ and that the Government will take ‘strong measures’ to improve its effectiveness.[5] In the meantime, Australia’s ‘strategic engagement’ with the UN treaty system will ‘be dependent on the extent to which effective reform occurs’.[6] This announcement effectively pre-empted any considered public discussion of the findings of the CESCR review of Australia’s progress towards implementing the economic, social and cultural rights protected by the ICESCR. It followed closely on the heels of the Government’s muted response, in July, to the UN Human Rights Committee’s (HRC) review of Australia’s compliance with the International Covenant on Civil and Political Rights (ICCPR).[7] The announcement has effectively enabled the Government to avoid, rather than engage with, the searching questions raised by the CESCR.

The CESCR review was based upon a Report prepared by the Government covering the period 1990-1997[8], and took place in two stages. The Report was first considered by a Pre-sessional Working Group of the CESCR in May 2000. The Working Group compiled a List of Issues, numbering 37 in all, about which the Government was asked to provide further information.[9] The second stage took place in August 2000 when the full CESCR met to consider Australia’s Report, together with the Government’s response to the List of Issues and information provided by Australian non-governmental organisations (NGOs). The Concluding Observations took the standard form of outlining the positive aspects of Australia’s compliance with its obligations before detailing the CESCR’s principal subjects of concern and then its recommendations and suggestions. The outcome indicated that the CESCR was not satisfied with the Government’s response to many of the issued that had been raised, and that Australia may be in breach of some of its obligations under the ICESCR.

While an earlier version of this article was distributed with the intention of assisting NGOs seeking to offer their perspectives on the state of social and economic rights in Australia to the CESCR,[10] we now offer this version as a means of also generating discussion of the CESCR’s Concluding Observations. The Australian Government’s trenchant criticism of the UN human rights treaty monitoring system is deeply regrettable and should not be allowed to deflect attention from the substantive issues of social and economic discrimination and deprivation raised by the CESCR. We hope our analysis will be useful as a guide to future efforts at monitoring Australia’s compliance with the ICESCR and participating in the CESCR’s review process. In particular, we hope to assist NGOs, students and legal practitioners to understand the nature of the general obligations Australia has assumed under the ICESCR, so that they are better equipped to make a critical assessment of progress towards implementation in their particular area of expertise or concern: housing, health, education working conditions, social security, and so on.

The paper is divided into three parts. First, we outline the content of the ICESCR and its review process, and set out to clarify the obligations that it imposes on States that have ratified it (State Parties). Second, we outline the range of direct and indirect legislative implementation measures and associated remedies that are available to Australian governments which may be relevant to making a full assessment of the extent to which specific economic, social and cultural rights have been realised. Third, we briefly summarise the CESCR’s review of Australia’s compliance and its Concluding Observations. Ultimately, the question is whether the indirect methods of implementation adopted by Australian governments actually fulfil Australia’s legal obligations under the ICESCR.[11] Our aim is not so much to assess Australia’s compliance with its obligations under the ICESCR as to provide a framework for others to make that assessment. Nevertheless, we do, by way of illustration, identify some instances of what, in our opinion, is non-compliance. And further, we fully support the concerns raised by the CESCR and hope to encourage wide dissemination of their findings and informed community debate about the neglected issue of economic and social rights in Australia.

Australia’s obligations to implement the rights protected by the ICESCR

The ICESCR, Australia’s Report and the Review Process

The ICESCR guarantees the progressive realisation of a number of important human rights: the right to work and to safe and favourable conditions of work; the right to form and join trade unions and to strike; the right to social security; the right to the widest possible protection and assistance for the family including special protections for pregnant women, young mothers and children; the right to an adequate standard of living including housing and food; the right to enjoyment of the highest attainable standard of physical and mental health; the right to free and compulsory primary education and to equally accessible higher education; the right to take part in cultural life and equally enjoy the benefits of scientific progress; and the right not to suffer discrimination “of any kind” with respect to these rights. These rights, together with those guaranteed by its companion the ICCPR, such as the right to life and the right to freedom of thought, conscience and belief,[12] were first comprehensively expressed in the Universal Declaration of Human Rights (1948) (UDHR). While the international legal status of the aspirational UDHR is not entirely clear, there is no doubt that the ICESCR binds those countries that are parties to it. Australia became a State Party to the ICESCR in 1976.[13]

Both the ICESCR and the ICCPR (the Covenants) impose requirements upon States Parties to provide periodic reports on their compliance with their obligations to the UN body responsible for monitoring such compliance, that is, the CESCR and the HRC (the Committees) respectively.[14] Each of the Committees is comprised of experts chosen by, but independent from, the States Parties to the Covenants.[15] The principal responsibility of the Committees is the consideration of periodic reports. In addition, under the ICCPR, but not yet under the ICESCR, individuals are empowered to bring complaints of human rights violations to the HRC.[16] In order to facilitate the drafting of reports and the review process, each of the Committees has adopted Guidelines for Reporting,[17] as well as General Comments providing authoritative interpretations of provisions of the Covenants.[18] Further, each Committee takes account of information from NGOs in order to comprehensively analyse and respond to the State Party Reports.[19]

Australia’s Report is its first comprehensive report under the ICESCR[20] and while it purports to cover the period 1990-1997, much of the information it provides does not extend past 1994. As the present Government was elected in March 1996, this means that many of its new policies, involving reduced social spending and labour market deregulation, are not adequately reported. The Report consists of three parts: a 365-paragraph overview of progress with respect to each right enumerated in the ICESCR,[21] extensive appendices to this overview,[22] and a 276-paragraph Core Document dated April 1994 which was initially prepared as part of Australia’s Report to the ICCPR.[23] In fact, very little of the Report is tailored to the CESCR’s requirements. The first issue raised by the Pre-sessional Working Group is that the Report does not even provide a summary of the steps taken in response to the CESCR’s Concluding Observations on Australia’s last Report.[24] In addition, the Report makes no attempt to provide a comprehensive overview, let alone an analysis, of the efforts of State and Territory governments towards fully implementing ICESCR rights. Its description of the Commonwealth’s efforts is partial and selective, frequently failing to mention the Government’s new policy initiatives in areas like indigenous self-determination, national women’s policy machineries, legal aid funding, family policy, social services privatisation and many others. Frankovits and Earle, who analysed the shortcomings of an earlier, though similar, draft of the Report, note that there is only one instance in the Report where the Government acknowledges that it may not be fulfilling its international obligations, yet the Guidelines for Reporting explicitly ask that governments provide information on where appropriate progress has not been made.[25] None of the statistics supplied in the appendices were prepared specifically for the Report, therefore they invariably do not provide the information that is required to make an informed assessment of Australia’s implementation. Finally, while the Report claims that the Government is ‘fully committed to protecting each right guaranteed by the Covenant’,[26] there is little evidence of this commitment in the Report’s descriptions of progress towards realising each right, which are clearly inadequate.

For instance, under the heading ‘The Right to Adequate Housing’ (a component of the right to an adequate standard of living) the Government states that ‘[w]hile most people are able to house themselves, low-income earners and those without employment are sometimes unable to compete in the housing market. In recognition of the right to adequate housing for all, assistance is available.’ The Report then briefly mentions the programs of assistance available and notes the total expenditure associated with each program. One program mentioned is the Supported Accommodation Assistance Program (SAAP) which the Report states ‘is one of the primary Government responses to homelessness’. And yet neither in the body of the Report, nor in its Appendices, is any information provided as to the number of people who have to rely upon SAAP at any given time, the number of people whom SAAP cannot assist and whether there have been any changes in these numbers over the reporting period. This is despite the fact that the Australian Institute of Health and Welfare publishes an annual report on SAAP as it operates in each State and Territory, which is based upon SAAP’s own National Data Collection system. Further, the failure to provide such information clearly runs counter to the Guidelines for Reporting, which seek ‘detailed information about those groups within your society that are vulnerable and disadvantaged with regard to housing ... in particular: (i) the number of homeless individuals and families’.[27] Thus, the Report fails to provide anything approaching a comprehensive picture of the state of economic, social and cultural rights realisation in Australia. Without the assistance of NGO Shadow Reports, the ability of the CESCR to make a serious and considered assessment of Australia’s progress would have been severely hampered, if not impossible.

The provision of opportunities for NGO participation in UN treaty committee review processes is a relatively recent phenomenon that has been pioneered by the CESCR.[28] To begin with, the CESCR has sought to encourage governments to include NGOs in the process by which their periodic reports are drafted. In the case of Australia, this did not occur in any meaningful way.[29] Given that this is often the case, the CESCR also willingly accepts credible reports from NGOs that are usually cast in the form of critical assessments of the periodic reports provided by governments. Numerous Australian NGOs took advantage of this opportunity and we have been respectively involved in two reports submitted to the CESCR, namely, that of the Women’s Rights Action Network Australia (WRANA)[30] and that of the Australian Social and Economic Rights Project (ASERP).[31] In addition, the Aboriginal and Torres Strait Islander Commission (ATSIC) made available the Shadow Report it had prepared for the Committee on the Elimination of Racial Discrimination’s review of Australia,[32] which took place in March, and a contribution from the Ngarrindjerri Nation was attached to the ASERP Report.

At the Pre-sessional Working Group in May, when the CESCR adopted the List of Issues reflecting its most pressing concerns arising from the Government’s report, representatives of ASERP were permitted a few minutes to alert the CESCR to the NGO reports concerning Australia. In drafting the List of Issues, the CESCR clearly took account of information supplied by NGOs. A number of Australian NGOs were also present during the formal review of Australia’s Report on 24-25 August, in Geneva, when the CESCR discussed Australia’s Report with the Government’s delegation. A few days earlier, and as is now standard practise on the first afternoon of the CESCR’s sessions, NGOs were also permitted to address the CESCR on the situation of economic, social and cultural rights in the countries being reviewed. While NGO participation in the process of Australia’s review was very effective, it is difficult to fully understand the framework of obligations imposed by the ICESCR and to properly assess the outcome of the process of review. Therefore, it is to the topic of understanding Australia’s obligations that we now turn.

Framework of ICESCR obligations

Aside from the absence of an individual complaints mechanism, the ICESCR also differs from the ICCPR in its express recognition that the rights it guarantees may take more time to realise than the rights guaranteed by the ICCPR and therefore they may be progressively rather than immediately realised. Nevertheless, Australia is obliged to give domestic effect to the international legal obligations it has assumed by ratifying the ICESCR, in the same way that it is bound by any other international treaty that it has ratified or acceded to. The specific legal obligation to implement the ICESCR is set out in Art 2 as follows:

2(1) Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

2(2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

When considering implementation in a federated State like Australia, Art 28 of the ICESCR is also important because it makes it clear that the Federal Government must ensure that the rights enumerated in the ICESCR are enjoyed throughout Australia, even where they fall under the jurisdiction of State and Territory Governments:[33]

28 The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.

As treaties are not self-executing in Australia,[34] constitutional amendment or legislation is necessary to incorporate treaty obligations into domestic law or, in the language of the CESCR, to domestically implement the ICESCR or make it domestically applicable. There are a variety of means by which the ICESCR might be incorporated into domestic law and we explore these in the second part of this article. For the remainder of this part, our concern is to clarify the general framework of obligations against which the end results of these various means of implementation must be assessed.

Article 2(1) is a statement of Australia’s legal obligations under the ICESCR to progressively implement the rights that it guarantees. Article 2(2) obliges the Federal Government to ensure that these rights are enjoyed by everyone, without discrimination. Although it is the Federal Government that is legally accountable for fulfilling Australia’s obligations under the ICESCR, Art 28 makes it clear that the obligations are not limited by the division of powers between different levels of government in Australia. That is, the Federal Government must ensure that all Australian governments fulfil the obligations in Art 2. What is entailed in fulfilling these obligations can be understood by (i) a layered typology that breaks down the nature of all human rights obligations into four separate duties: to respect, to protect, to promote and to fulfil the enumerated rights; (ii) a close examination of the words of Art 2, read against the background of the typology; and (iii) an outline of the presumptive (or prima facie) violations that result from our analysis. Each of these aspects will be considered in turn.

The four components of the obligations

As part of the ongoing debate as to whether economic, social and cultural rights have the same moral and legal status as other commonly recognised human rights, such as civil and political rights, a 4-part typology of duties, applicable to all human rights, has been developed.[35] The objective is to show that economic, social and cultural rights share the same basic qualities as other human rights, can therefore be treated the same as other human rights and, in particular, are equally capable of being incorporated into national and international legal systems and policy processes. As the CESCR has emphasised, every ICESCR right has ‘at least some significant justiciable dimensions’ which, if violated, are appropriately resolved by courts.[36] The typology layers the legal obligation to fully realise each right in the ICESCR into four separate duties: to respect, protect, promote, and fulfil. Achievement of all of these layers of duties arising from a particular right amounts to full realisation of that right, but it is possible that a State may achieve only one or two of the layers of duties, thus falling short of full realisation.

The duty to respect

The duty to respect the rights enumerated in the ICESCR refers to a State’s negative obligation to refrain from acting in ways that would deprive people of their rights or impair their enjoyment of them, and is immediately applicable. Thus, for example, if the Government were to prevent single or unmarried women or lesbians from having access to IVF technology that is otherwise generally available, it may infringe Art 10 which provides that ‘the widest possible protection and assistance should be accorded to the family’ and Art 2(2) which prohibits all forms of discrimination. Similarly, if the Government were to cut child support or social assistance allowances without ensuring adequate alternative means of support, it may infringe the duty to respect aspects of Arts 11 (adequate standard of living/freedom from hunger) and 9 (social security). The duty to respect is a minimal undertaking that ensures that individuals are protected from interference by the state, and thus implements rights as negative limits on governmental power. This duty thus has minimal resource implications, but, as the social assistance example indicates, it may require the maintenance of existing levels of resource commitment in order to ensure no retrogression in existing levels of social and economic security.

The duty to protect

The duty to protect requires States to act to ensure that third parties (private actors) do not violate human rights. This duty requires States to take positive measures, for example by adopting appropriate regulatory frameworks, which restrain others from abusing human rights. For example, the lack of regulation of private institutions that undertook to ‘care’ for Aboriginal children who had been removed from their families resulted in the violation of many social and economic rights of those children and their families. Further, if government legislation does not protect workers by penalising private employers who violate workers rights, it may be violating one of Arts 6-8 (the right to work, to favourable working conditions, to join trade unions and to strike). This layer of the typology requires a limited utilisation of resources and may not be immediately realisable due to impediments such as resource availability, or cultural and economic constraints. Unfortunately, the duty to protect has not traditionally extended to human rights violations that occur in the domestic sphere, where many women’s rights abuses occur, but there is growing acceptance that it does so extend.[37]

The duty to promote

The duty to promote the rights in the ICESCR includes, importantly, human rights education at all levels of society, and accessible information about remedial measures available to those whose rights have been violated. According to this duty, it is not sufficient that a law or policy exists which, for example, recognises that Australian’s have a right to affordable, secure and adequate housing, yet those who do not enjoy such a right do not know of the law and/or there is social stigma attached to appealing to the law and/or information about making a complaint is not available. Australia has been repeatedly criticised by the various UN Committees set up to monitor compliance with human rights treaty obligations for failing to sufficiently promote human rights.[38]

The duty to fulfil

The duty to fulfil economic, social and cultural rights obliges States to take positive action to ensure that social and economic rights are realised or made accessible to everyone. This obligation requires States to guarantee a specified result, which may involve ensuring an immediate outcome or achieving a minimum standard directed at the progressive realisation of a right (see below). For example, the provision of social security for everyone whose income is below a certain livable level would satisfy the duty to fulfil in Art 9. In this layer of the typology, rights enable claims to be made of the State to take positive steps to ensure the right is enjoyed by everyone. Considerable resources are usually required to satisfy the duty to fulfil. Failing to fulfil a right, whether it is to be immediately or progressively achieved, is a violation of omission.

The words of Arts 2(1) and 2(2)

The obligation ‘to take steps’

The Government must ‘take steps’ towards realising the rights enumerated in the ICESCR. Although this wording falls short of requiring the Government to ‘guarantee’ economic, social and cultural rights, it is a positive undertaking that has both an immediate and a continuing effect: the Government cannot be inactive, nor just refrain from taking steps that would otherwise result in a violation of the ICESCR. It must act to adopt measures aimed at achieving the ‘full realisation’ of the rights covered.[39]

Some steps are mandated, and they are outlined in the ICESCR. For example Art 6 (the right to work) requires that the steps to be taken include ‘technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment’. Other articles that specify steps or measures the Government is required to take are Arts 11 (adequate standard of living/freedom from hunger), 12 (health), 13/14 (education) and 15 (culture). The steps outlined are not comprehensive, remain very broad, and leave considerable room for governments to interpret them as they see fit.

Other articles are silent on the steps to be taken, leaving it entirely up to governments to determine the ways in which they will act to ensure enjoyment of the right. Examples of such articles are Art 7 (just and favourable conditions of work) and Art 9 (social security). Such silence, however, in no way alters the obligation, which exists with respect to every right enumerated, that ‘steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognised in the Covenant’.[40]

The obligation to take steps ‘individually and through international assistance and cooperation, especially economic and technical’

These words highlight the interdependence of all States in realising economic, social and cultural rights and, in particular, that certain countries will be reliant on others to assist with economic and technical expertise and resources. For Australia, as a developed State, this involves the obligation to actively play its part in assisting and facilitating the full realisation of the rights in the ICESCR in developing States.[41] The obligation to cooperate towards the achievement of international economic and social well-being was also assumed by Australia under the UN Charter.[42]

The obligation ‘to the maximum of its available resources’

These words indicate that due priority must be given to the achievement of economic, social and cultural rights. The CESCR has explained that this involves ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’.[43] The minimum core obligation includes the provision of essential food, essential primary health care, basic shelter and housing, and basic forms of education.

In a developed State like Australia, the concept of a minimum core obligation is not a very useful yardstick, as the resources available should enable the Government to come very close to fully realising the rights in the ICESCR. Therefore, any shortfall in realising the minimum in Australia should be viewed extremely seriously, as even the poorest developing nations are required to demonstrate that they have made every effort to achieve the minimum.

Thus, we suggest that an assessment of Australia’s progress towards fulfilling its obligations should be predominantly concerned with instances of, and the reasons for, any shortfall in the realisation of each of the rights in their entirety. Australia’s economy has grown consistently through the 1990s and anything less than full enjoyment of economic, social and cultural rights raises fundamental questions about whether ‘the maximum of available resources’ have been devoted to their realisation.[44] But, given this, any assessment should also draw attention to any circumstances revealing Australia’s failure to comply with its minimum core obligations.

The obligation of ‘achieving progressively the full realisation of the rights recognised’

Implicit in this wording is the acceptance that States may not be able to realise economic, social and cultural rights immediately and, therefore, that they will need some time to fully achieve them. However, the CESCR emphasises that the obligation requires movement ‘as expeditiously and effectively as possible towards the goal’ of full realisation.[45] Of particular importance in the current Australian situation is that the obligation does not allow any retrogressive measures, except in the narrowest of circumstances. The CESCR cautions that such measures ‘would require the most careful consideration and would need to be fully justified by reference to the totality of rights provided for in the Covenant and in the context of the full use of the maximum available resources’.[46]

In addition, the CESCR has indicated that there are a number of provisions capable of immediate enforcement, for which ‘progressive realisation’ is inapplicable.[47] They are:

Article 2(2): guaranteeing non-discrimination (see below for discussion);
Article 3: the equal rights of women and men;
Article 7(a)(i): equal remuneration for work of equal value without distinction of any kind;
Article 8: the right of everyone to form and join trade unions, the right of trade unions to establish and join national and international trade-union organisations and to function freely, and the right to strike;
Article 10(3): special measures of protection and assistance for children;
Article 13(2)(a): compulsory primary education available to all;
Article 13(3): the liberty of parents or legal guardians to choose their children’s school;
Article 13(4): freedom of educational institutions beyond their conformity with minimum standards laid down by the State;
Article 15(3): the freedom indispensable for scientific research and creative activity.

Here too, we suggest that while the assessment of Australia’s progress will tend to focus upon whether Australia has progressed to full implementation with respect to each right and, if not, why not, still it is important to consider whether Australia has implemented the immediate obligations that are expected of every State Party.

The obligation to use ‘all appropriate means, including particularly the adoption of legislative measures’

This obligation allows a great deal of scope for States to determine the measures they adopt in order to implement the ICESCR, limited only by the requirement that the means be appropriate. Article 2(2) places special importance on legislative measures, but it clearly also envisages other measures which might include judicial, administrative, financial, educational and social implementation. Consequently, a lack of legislative measures does not necessarily entail a failure to implement the obligations imposed by the ICESCR because alternative measures may suffice and, indeed, in some circumstances, may be more appropriate. Nevertheless, some legislative measures will usually be necessary. Furthermore, legislative means may be desirable because their public nature leaves them open to effective scrutiny. In contrast, purely administrative means, such as contracts for the provision of services entered into between executive governments and private companies or service providers, may often be protected from public disclosure, even though the terms and targets they contain may be significant in determining whether a ICESCR right has been appropriately realised. Leaving aside questions of scrutiny, administrative measures uncontrolled by legislation may also provide little means of redress to third parties whose rights are affected by failures to perform. This is significant because, as part of the obligation to implement rights through all appropriate means, the CESCR has identified an obligation to provide ‘effective remedies’ to those whose ICESCR rights are violated. In particular, the CESCR is concerned that States provide sufficient access to judicial remedies.[48] While it is important to recognise that administrative and other non-legislative measures can play an important role in implementing the ICESCR, their adequacy in providing effective remedies must be seriously questioned.

Making an assessment of Australia’s legislative implementation and its obligation to provide effective remedies is the subject of the second part of this paper because it requires a consideration of different forms of legislative implementation, different forms of rights and different types of remedies. Therefore, suffice to say here that the most comprehensive implementation of rights in Australia would require a combination of legislative and other measures, including judicial and other remedies. At a minimum, it would seem that the Government is obliged to provide judicial or other effective remedies for violations of the rights that are capable of immediate enforcement (listed above). The CESCR particularly emphasises the appropriateness of judicial remedies for ensuring the right to non-discrimination, which is a justiciable aspect of all of the rights in the ICESCR.[49] Further, Australia would be required to alter existing legislation that is clearly incompatible with the ICESCR, for example if it is discriminatory, or expressly denies a right or has this effect, or allows violations without due process of law. With respect to legislation aimed at the realisation of economic, social and cultural rights, the CESCR has made it clear that it wants to be kept informed about whether any individual or group right of action has been created, indicating the importance it places on effective judicial remedies.[50]

Needless to say, the provision of domestic remedies is all the more important because there is no individual complaints mechanism attached to the ICESCR which, where domestic remedies are absent or ineffective, would enable individuals to make complaints directly to the CESCR.

The guarantee ‘that the rights enunciated...will be exercised without discrimination’

Article 2(2) requires States to guarantee the non-discriminatory enjoyment of economic, social and cultural rights, which necessitates a range of measures, but, in the words of the CESCR, ‘the provision of some form of judicial remedy would seem indispensable’.[51] The article proscribes discrimination ‘of any kind’ and lists, non-exhaustively, various grounds of discrimination. Therefore, discrimination on a ground not specifically mentioned, for example sexual orientation or disability, must also be prevented. The Government is required to refrain from exercising its powers in a discriminatory manner and to alter any discriminatory laws and practices. It is also required to take positive measures to prohibit discrimination by private persons and organisations in any field of public life. In Australia, anti-discrimination legislation has been adopted in an incremental, rather than comprehensive, manner prohibiting discrimination on specific grounds in selected circumstances. Therefore it is most unlikely that Art 2(2) has been fully implemented, despite its recognition as an immediately realisable obligation requiring judicial remedies.

The ICESCR does allow for affirmative measures to be taken to ensure the equal enjoyment of rights by particular groups or individuals who need special assistance to overcome structural disadvantages in order to enjoy equality. The ICESCR itself recognises that special measures are required to protect the rights of children and young people, and mothers for a reasonable period before and after childbirth. Such special measures are to be withdrawn once their objectives are achieved, but they provide an indispensable mechanism for addressing deeply embedded structural inequalities.

Identifying violations

Interpreting the specific obligations imposed by Arts 2(1) and 2(2) of the ICESCR, in conjunction with the 4-part typology of duties arising from all human rights obligations, allows for appropriate definition of what is required for Australia to fully realise each of the rights guaranteed by the ICESCR. In turn, defining the requirements for full realisation allows for identification of where Australia is falling short or, in other words, where violations are occurring. Although it is far beyond the scope of this paper either to define those requirements or identify those violations, we can summarise the implications of the preceding analysis by stating a number of circumstances giving rise to presumptive violations of the ICESCR.[52] That is, circumstances that provide prima facie evidence of a violation and that shift the onus onto the Government to rebut the presumption that it has violated the ICESCR. For example, where there is evidence that there is decreasing enjoyment of the right to adequate housing, the onus would be on the Government to explain the evidence and show that it is not a violation of the ICESCR. This obligation lies with the Federal Government, even if the decreasing enjoyment of a ICESCR right is due to the policies or practices of a State or Territory government.

Discrimination as a presumptive violation

In general terms, it is clear that while the ICESCR recognises that Australia’s obligations with respect to the realisation of any particular right are ultimately limited by the extent of available resources, the ICESCR is nevertheless founded on the understanding that the obligation of non-discrimination can and must be met regardless of available resources. While there remains an issue of whether guarantees of non-discrimination can be interpreted to the same effect as guarantees of substantive equality,[53] at the very least Australia can be presumed to be in violation of the ICESCR if there is any evidence of inequality, arising from discrimination, in the enjoyment of economic, social and cultural rights.

Lack of minimum core entitlements as a presumptive violation

The ICESCR is also founded on the understanding that a State as affluent as Australia can and must meet all minimum core obligations. Therefore, Australia can be presumed to be in violation of the ICESCR if there is any evidence of lack of enjoyment of minimum core economic, social and cultural entitlements. Since the vast majority of Australians obviously do not lack such entitlements, it is likely that any instances of failure to meet this obligation will also entail failure to meet the non-discrimination obligation.

Entitlements above the minimum

Furthermore, the ICESCR is founded on the understanding that a State as affluent as Australia can and must ensure a fully adequate level of enjoyment of economic, social and cultural rights above the minimum core entitlements. This has two implications:

1. Decreases in entitlements as presumptive violations

First, that in the absence of a severe depletion in a State’s available resources, the level and extent of enjoyment of economic, social and cultural rights above the minimum should not be diminished either by the State or third parties. Therefore, Australia can be presumed to be in violation of the ICESCR if there is any evidence of decreasing enjoyment of economic, social or cultural rights.

2. Stagnation of, or lack of improvement in, entitlements as presumptive violations

Second, in times of growth in a State’s available resources, the level and extent of enjoyment of economic, social and cultural rights should continually improve (unless a State can show that such enjoyment has been fully realised). Therefore, Australia can be presumed to be in violation of the ICESCR if there is any evidence that, in times of economic growth, the level and extent of enjoyment of economic, social and cultural rights is stagnant or failing to grow proportionately. Indeed, where there is evidence that the level and extent of enjoyment of economic, social and cultural rights are not improving, Australia will be in violation of the ICESCR even if available resources remain constant, unless it can show that it is already devoting the maximum of its available resources or that such enjoyment has been fully realised.

Existence of violations as presumptive violation of remedial obligations

If in any of these ways Australia is found to be falling short of its obligations with respect to the specific rights guaranteed by the ICESCR then a further violation can also be presumed, that is, a violation of the obligation to ensure that there are appropriate and effective domestic remedies available for people whose economic, social or cultural rights have been violated.

In the second part of this paper we consider this obligation to provide appropriate domestic remedies in more detail and briefly assess the extent to which it is being met in Australia. Before doing so, however, it is worth noting a further aspect to Australia’s obligations under the ICESCR which relates to the content of reports submitted by States and is crucial to the entire process of evaluating Australia’s compliance with the ICESCR.

Obligation to comply with Guidelines for Reporting

The obligation that States Parties report periodically to the CESCR on their progress towards fully implementing the ICESCR is not merely a formal or procedural matter. The CESCR has emphasised that reporting serves a variety of important substantive objectives including ensuring a comprehensive review of the situation, regular monitoring, clearly articulated policies and the identification of specific benchmarks and goals.[54] Given the various aspects of the obligations imposed by the ICESCR, and the multiplicity of recognised means of implementation, as outlined above, the CESCR itself faces significant challenges in performing the task of assessing Australia’s compliance with the ICESCR. Such challenges are all the greater for NGOs. One step taken by the CESCR to meet these challenges is the adoption of Guidelines for Reporting which seek to specify the breadth and depth of information that the CESCR expects to receive from States in order to enable it to assess their compliance with the ICESCR.[55] One advantage of requiring compliance with the Guidelines is that the CESCR is able to gain specific information about the standards that the State has set for itself in seeking to ensure full realisation of the rights guaranteed by the ICESCR. This enables the CESCR not only to evaluate the appropriateness of those standards but also to hold a State accountable to its own standards. Ideally, the challenges facing NGOs seeking to participate in the review of a State’s compliance can also be alleviated to some extent by similar utilisation of information provided under the Guidelines.

However, this assumes that a State has complied with the Guidelines in furnishing its report to the CESCR which, with respect to Australia’s Report, is not the case.[56] Australia’s failure to provide appropriate information, from all levels of government, undermines the very process of evaluating its compliance with its obligations under the ICESCR. Therefore, it is appropriate for assessments of that compliance to draw attention to deficiencies in Australia’s reporting. Moreover, it is possible to argue that Australia’s claims to be observing its obligations under the ICESCR cannot be taken seriously unless and until Australia is able to furnish the required information. At the very least, the failure to do so makes it all the more difficult for Australia to rebut any evidence of presumptive violations.

Australia’s obligation to provide effective remedies for violations of the ICESCR

In the preceding part we have elaborated upon States’ obligations, arising from Arts 2(1) and 2(2) of the ICESCR, as well as from the 4-part typology of duties correlating to all human rights, to implement the rights guaranteed by the ICESCR. In the course of doing so we noted that States have a number of means of implementation available to them and that they enjoy significant discretion in determining the mix of measures they will adopt. But that discretion is bounded by the ultimate obligation to ensure the full realisation of the rights guaranteed by the ICESCR and, according to the CESCR, this obligation will invariably necessitate some adoption of legislative measures. In other words, States will inevitably be obliged to use their law-making powers to ensure compliance with their obligations. In the parlance of the CESCR, this raises the issue of domestic application, that is, the extent of the requirement that a State must give effect to the ICESCR in its domestic legal order. A critical component of this issue is the extent to which a State is obliged to provide effective remedies, including judicial remedies, for any violations of the rights guaranteed by the ICESCR.

In a federated State like Australia, the obligation to implement the ICESCR, and ensure effective remedies for violations of the ICESCR, includes ensuring that State and Territory governments play their part in giving effect to the obligation, to the extent that implementation falls within their respective constitutional powers. Many of the rights enumerated in the ICESCR fall into areas in which Australian State and Territory governments have a primary interest. Also, significant sections of the Australian legal system are administered by the States. While the Federal Government does have the constitutional power to legislate to implement its international treaty obligations under the external affairs power,[57] it has been consistently reluctant to do so in the context of Australian federal arrangements which give States a great deal of power. Instead, successive federal governments have developed cooperative approaches towards the implementation of Australia’s international obligations.[58] Although the present Government attests loudly to the effectiveness of the present ‘Principles and Procedures for Commonwealth-State Consultation on Treaties’, mechanisms based only on consultation and cooperation are always vulnerable to political exigencies and are not good instruments of accountability. The lack of accountability of States and Territories for the implementation of international human rights obligations is a major flaw in the Australia system of rights and must surely amount to a violation of the implementation obligations in the Convention.

Therefore, it is important that any evaluation of the domestic application of the ICESCR in Australia examines implementation measures at both the Federal and State/Territory levels of government. Because the Australian Report is completely inadequate in this regard, NGOs needed to fill in some of the gaps left by the Report and, perhaps more importantly, suggest questions that the CESCR might ask in order to elicit this information from the Government. The different levels of government in Australia, and the complexity this adds to effective monitoring, should be borne in mind as we consider, in this part, Australia’s compliance with its obligation to provide effective remedies. We do this in three steps, by (i) identifying how the obligation to provide effective remedies and, in particular, judicial remedies, arises; (ii) describing the relationship between different forms of implementation, different forms of rights and different types of remedies; and (iii) briefly assessing the adequacy of remedies provided in Australia.

Obligation to provide effective remedies and the need for judicial remedies

According to the CESCR, since the obligation to implement the ICESCR necessitates the adoption of legislative measures, States will need to undertake some degree of incorporation, or recognition, of the rights guaranteed by the ICESCR into their domestic legal systems.[59] However, because recognition does not of itself ensure compliance, the CESCR also states that the ICESCR requires the provision of appropriate mechanisms for remedying violations of ICESCR rights and for ensuring governments are accountable. Ultimately, this means that the ICESCR will not be fully implemented in the absence of effective domestic remedies enabling individuals and groups to enforce the rights guaranteed in the ICESCR. The term ‘effective remedy’ is not limited to judicial remedies. In particular, the CESCR accepts that administrative remedies, that is, remedies sought from administrative decision-makers exercising power under legislative measures, will often be appropriate. According to the CESCR, the test is simply whether a remedy is effective which, in the case of administrative remedies, means ‘accessible, affordable, timely and effective’.[60] Indeed, those criteria are probably the benchmarks by which the effectiveness of all remedies should be judged.

However, while the CESCR recognises that non-judicial remedies may be effective, where the full realisation of a right guaranteed by the ICESCR cannot be ensured in the absence of judicial remedies, then such remedies will be necessary. For instance, it may be necessary to ensure the availability of judicial review of administrative remedies. Generally speaking, access to judicial remedies is desirable because such remedies provide powerful and independent protection against violations of ICESCR rights. Indeed, the CESCR has indicated that in many cases judicial remedies can be presumed to be necessary and appropriate and that in such cases States will face a heavy burden if they seek to justify a failure to complement or reinforce implementing measures with judicial remedies.[61]

Significantly for Australia, one factor which the CESCR will consider in assessing whether a State ought to provide judicial remedies for protection of ICESCR rights is what remedies the State has provided for other human rights. This is significant because, as discussed further below, while the Federal Government’s Human Rights and Equal Opportunity Commission (HREOC) system has been empowered to conciliate complaints about the violation of the rights guaranteed by the ICCPR and other human rights instruments, it has no such powers with respect to complaints about violations of the rights guaranteed by the ICESCR. The CESCR has said that where implementation differs significantly from that of other human rights treaties, ‘there should be a compelling justification for this’.[62]

Forms of implementation, forms of rights and types of remedies

While in adopting legislative measures, there is plainly an obligation upon States to provide some degree of access to judicial remedies, as part of the broader obligation to provide effective remedies, it must be recognised that in the Australian legal system judicial remedies can vary in scope. In particular, judicial remedies can exert more or less control over administrative and other non-judicial remedies and decision-making processes. Generally speaking, rights and remedies are but different sides of the same coin: to legislatively provide a right is generally to enable a remedy in the sense that the very existence of a right entitles a person to demand that right and also to demand a remedy if that right is violated. Therefore, to identify when rights have been implemented is also to identify when remedies are available. However, since there are different ways in which to implement rights there are also different types of remedies. In particular, legislative implementation may provide administrative and/or judicial remedies and may provide them with differing scopes. In the following analysis, we distinguish direct from indirect legislative implementation of ICESCR rights and we distinguish implementation in the form of claim-rights from implementation in the form of benefit-rights. These distinctions then enable us to illustrate how the scope of judicial remedies can vary.

At the outset, it is important to recognise that the rights identified in the ICESCR as human rights, such as the right to work, the right to adequate housing or the right to health, can and often must be understood as aggregated bundles of more specific entitlements or sub-rights. For instance, the CESCR has defined the right to adequate housing to include sub-rights to: the greatest possible security of tenure[63], strict control of circumstances in which evictions may be carried out[64], affordability, habitability and accessibility.[65] Therefore, while the clearest form of domestic implementation of a ICESCR right would be a legislative measure granting the right in the same or similar terms (that is, in its aggregated form) from which sub-rights would flow by implication, it is equally possible to implement a right by legislative measures that only grant the sub-rights themselves. We call the first form of implementation ‘direct implementation’, and the second form ‘indirect implementation’.[66] It is important to recognise this distinction in assessing a State’s compliance with its obligations under the ICESCR because failure to do so, or, more particularly, failure to take account of indirect implementation, may result in an underestimation of the extent of compliance.

Next, it is important to recognise that legislative measures, of either the direct or indirect kind, may compel implementation of a right or sub-right, or may merely empower implementation of a right or sub-right — the difference being the amount of discretion left to governments, or individuals, to define the scope and content of the right or sub-right. Or, in splitting the difference, a legislative measure may generally compel implementation while preserving some discretion as to scope and content. In our analysis, the more the implementation of a right is compelled, the more it is a ‘claim-right’, whereas the more it is left to discretion, the more it is a ‘benefit-right’. The significance of this distinction is illustrated by the decision of the High Court of Australia in Green v Daniels.[67] In this case the applicant argued that she had been improperly denied unemployment benefits which the Director-General of Social Security was empowered to provide under the Social Services Act 1947 (Cth). Stephen J ordered a re-examination of her case on the grounds that, although the Department’s decision was based upon the relevant policy manual, there were doubts as to whether the policy manual properly reflected her entitlement under the Act. However, Stephen J refused to actually order that she was entitled to the benefit because in his view the Act provided that that decision was at the discretion of the Director-General. He ruled that she lacked a sufficient cause of action to compel the provision of a benefit and that, in effect, ‘unemployment benefit is no more than a gratuity, to payment of which the plaintiff can have no rights enforceable at law’.[68] Crucial to Stephen J’s decision then is his holding that individuals cannot compel implementation of the sub-right to unemployment benefit (which is part of the aggregated right to social security). This incapacity leads him to designate the right as a mere benefit that is ‘unenforceable at law’ or, in other words, is insufficient to found a cause of action. On the basis of that designation, Stephen J refuses to provide a judicial remedy for the denial of the applicant’s sub-right. In so doing, he reveals the importance of the distinction between claim-rights and benefit-rights: with only the former providing access to the full scope of judicial remedies.

It is also important, however, to recognise that just as the contrast between claim-rights and benefit-rights is more one of degree than kind, that is, they lie at opposite ends of a continuum rather than on either side of a dichotomy, so too can there be degrees of access to judicial remedies or, to put it another way, variations in the scope of judicial remedies. Indeed, as the fact of Stephen J’s decision shows, even though the applicant’s sub-right to unemployment benefit was ultimately held to be unenforceable, nevertheless she was able to obtain a judicial remedy for the Department’s improper reliance upon a policy manual that allowed decisions that violated her sub-right. However, access to this judicial remedy is of only limited effectiveness in ensuring the enjoyment of ICESCR rights. This is because, although the Department can be judicially compelled to exercise discretion consistently with the legislative definition of a sub-right, that definition may itself fall short of what the ICESCR requires. Alternatively, while the legislative definition may be capable of encompassing what the ICESCR requires, and may set some limits to how discretion can be exercised, it may nevertheless fail to proscribe exercises of discretion that fall short of the ICESCR’s requirements. Therefore, the actual level of social security may be determined by budgetary allocations and the need for administrative rationing, rather than actual need (as the ICESCR may require) and, so long as this is within the scope of the discretion granted by the legislation of the sub-right, the scope of the judicial remedy will not extend to compelling provision for unmet need. By way of contrast, if the right to social security were directly implemented in its full aggregated form by means of constitutional entrenchment, then the scope of the judicial remedy thereby provided would be significantly greater. For instance, it would enable a challenge to the adequacy of the legislative definition of the sub-right to unemployment benefits and, indeed, may prevent any repeal or alteration of the sub-right.

Assessing the effectiveness of remedies in Australia

In assessing Australia’s compliance with its obligation to provide effective remedies for violations of ICESCR rights, it is therefore necessary to investigate what form of implementation has taken place, what form of right has been created and what type and scope of remedy has been provided. As a guide to such investigations, we list several questions designed to assist in identifying the range of means by which ICESCR rights can be recognised in Australia’s domestic legal order. We also indicate the extent to which they have been used and consider the effectiveness of the remedies they provide.

Have ICESCR rights been constitutionally entrenched?

The most powerful and independent type of direct implementation is the enactment of constitutional human rights. The South African Constitution, the Canadian Charter of Rights and Freedoms and the United States Bill of Rights are all examples of this type of direct implementation. Constitutionally entrenched human rights are the most powerful because they operate by controlling law-making power and found claim-rights directly on violations of ICESCR rights. Furthermore, they cannot be repealed or amended by the ordinary law-making process as this can only be achieved through extra-ordinary constitution-making procedures. Courts adjudicating such claim-rights can both strike down laws that cause rights violations and require laws to fulfil rights obligations.

This type of implementation has not occurred in any systematic way in Australia. The Commonwealth Constitution contains few express rights. They include a right to the free exercise of religion (which also prohibits the imposition of religious observance or the establishment of religion), a largely formal right to trial by jury, protection against discrimination on the basis of residence in one State rather than another, and a guarantee that compulsory acquisitions of property take place on just terms. There is also a guarantee that interstate trade, commerce and intercourse be ‘absolutely free’.[69] More recently the High Court of Australia has upheld limited implied constitutional rights to freedom of political communication, movement and association and to procedural due process. However, the tenor of High Court decisions since these developments manifests a reluctance to imply any further rights; for instance, a minority opinion claiming that a right to equality is implied by the Constitution has been resisted in subsequent decisions of the Court.[70] Therefore, the ICESCR lacks direct constitutional implementation at the Commonwealth level and the situation is the same with respect to all State Constitutions. Consequently, the most significant type of claim-right is unavailable in Australia, as is the most powerful and independent type of judicial remedy for violations of economic, social and cultural rights.

Have ICESCR rights been legislatively enacted in a general scheme or bill of rights?

A second type of direct implementation of international human rights is the enactment of general legislative human rights. It is generally understood that there are two ways in which this might be undertaken. First, legislation may be enacted that grants and protects human rights in general. An example is the New Zealand Bill of Rights Act 1990, which grants and protects a number of important civil and political human rights. The Federal Government in 1973 and 1984 proposed similar enactments, but they were highly controversial and never materialised because of what has been described as the Australian ‘reluctance’ about rights.[71] Alternatively, legislation may be enacted that grants and protects equality or non-discrimination rights on specific grounds across a general range of areas of social activity. An example is the Sex Discrimination Act 1985 (Cth). Such legislative human rights are general in the sense that they apply to a wide range of more particular legislation and associated administrative action. This type of implementation is less powerful than constitutional entrenchment because it cannot control future law making, as Australian parliaments do not have the power to bind their successors. Consequently, this type of implementation is always vulnerable to repeal or amendment through the ordinary operation of the political process. However, such implementation can operate to repeal earlier inconsistent laws and to condition the interpretation of future laws that do not expressly provide differently. Also, through the operation of s 109 of the Commonwealth Constitution, the rights contained in the Commonwealth legislation can override past, present and future inconsistent State legislation. Whether implementation of this type grants claim-rights or benefit-rights, and so to what extent it provides access to judicial remedies, and of what scope, depends upon the detail of each enactment. An important question is also the extent to which ICESCR rights are included within the ambit of such legislative enactments.

Australia employed a third type of direct legislative implementation in adopting the Human Rights and Equal Opportunity Commission (HREOC) Act 1986 (Cth), although it is perhaps inaccurate to categorise this as an ‘implementation’, given its extremely limited form and very inadequate remedies. The HREOC Act 1986 appends various human rights treaties, including the ICCPR, but not including the ICESCR. Appending these treaties falls short of directly incorporating them into domestic law, therefore they are not a source of substantive rights for Australians. Instead, the Act grants individuals the right to complain to HREOC about violations of rights protected by the appended instruments, but the rights granted can barely even be described as benefit-rights because HREOC is a non-judicial conciliation body and cannot compel compliance with its own decisions. Indeed, its remedial power is limited to reporting to the Commonwealth Attorney-General in the event that a settlement cannot be reached by way of conciliation. Furthermore, only complaints with respect to laws, practices and actions of the Federal Government can be made, except for complaints of discrimination in employment which extend to actions by the State and Territory Governments as well.[72] Finally, and most significantly for present purposes, the ICESCR is the only major international human rights instrument that is not included within the ambit of the HREOC system. Therefore, the rights guaranteed by the ICESCR are not ‘human rights’ for the purposes of the HREOC Act 1986 which means that complaints of violations of economic, social and cultural rights cannot be conciliated. Further, the other functions of HREOC, which include human rights promotion, research and legislative review, do not apply to the rights in the ICESCR.[73] As already foreshadowed, this difference in treatment gravely undermines the relative effectiveness of remedies for violations of rights guaranteed by the ICESCR and must cast doubt upon Australia’s willingness to fulfil its obligations under the ICESCR. Indeed, as we have said, the CESCR views differential treatment of ICESCR rights, when compared to other human rights, very seriously indeed, and suggests that this would need a ‘compelling justification’.[74] But far from attempting any justification of the differential treatment of the ICESCR, Australia’s Report somewhat misleadingly states that ‘[t]he institutional machinery protecting the rights recognised in the Covenant is detailed in the Core Document together with an outline of the legislation which establishes it’.[75] In the Core Document’s description of the HREOC system, the omission of the ICESCR is not mentioned.[76]

The Federal and State Governments in Australia have made a better effort to undertake the second type of direct implementation of a general scheme of rights by way of anti-discrimination legislation. At the Commonwealth level there are the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992. The last of these Acts does implement some of Australia’s obligations under the ICESCR, but only with respect to people with disabilities. The inadequacies of the federal system mean that a great deal of reliance is placed in the State systems. All States have enacted anti-discrimination legislation[77] with minor, but often very significant, variations.[78] All these enactments grant rights to complain about discrimination on certain specified grounds in prescribed areas of activity by governments and private parties, but fall short of establishing the comprehensive regime envisaged by Art 2(2). Also, while protection from discrimination should not be under-rated, especially for women and indigenous peoples, it does not necessarily ensure full realisation of the rights guaranteed by the ICESCR and, for instance, may not even amount to a guarantee of substantive equality. Further, although some of this protection operates in the social and economic realms, for example non-discrimination operates on specified grounds in the provision of accommodation, work, goods and services, an important ground which is not included is discrimination on grounds of being in receipt of social assistance, which can often be important in an area such as accommodation.[79] It is important to investigate how receptive judicial decision-makers are to reading the legislation as widely as possible so as to fully comprehend the social and economic dimensions of discrimination complaints. Ultimately, all of these enactments, including the three Federal Acts, grant claim-rights in the sense that complainants do have access to judicial remedies which can order an end to discriminatory actions.[80] However, it is important to note that anti-discrimination legislation invariably interposes filtering, conciliation and specialist tribunal procedures between complainants and judicial remedies. The effect of these procedures upon the effectiveness of remedies for violation of ICESCR rights should also be investigated. For instance, while these procedures are no doubt motivated by a desire to alleviate the costs, delays, and formalities associated with non-specialist court proceedings, they may be unresponsive to claims of economic and social discrimination and can lack accountability in decision-making, especially with respect to the initial filtering of complaints.[81]

Have ICESCR rights been legislatively enacted in a particular area of social or economic policy?

A further type of direct implementation is the enactment of particular legislative human rights. For example, if Commonwealth or State housing legislation had a section stating: ‘All people have a right to adequate housing and the Crown has a duty to provide such housing if people cannot otherwise secure it’. Such legislative human rights are particular in the sense that they only apply to a particular area of legislation or social policy. Again, this type of implementation cannot control future law-making, cannot override inconsistent provisions in the same or other legislation and is always vulnerable to repeal by ordinary law-making processes. Nevertheless, particular legislative human rights can found claim-rights and, importantly, allow claimants to challenge the adequacy of entitlements and to exert some control over the exercise of administrative action under the legislation. However, neither the Commonwealth nor the States have any legislation undertaking such implementation of international human rights, including social and economic rights, although there is limited recognition of the sub-right to strike in industrial relations legislation.

Have ICESCR sub-rights been legislatively enacted in a particular piece of legislation?

A common type of indirect implementation is the enactment of independent but inter-related entitlements in particular legislation. This type of implementation shares the vulnerability to repeal or amendment of all implementation that is not constitutional. In addition, this type of implementation usually entails more limited claim-rights and therefore restricts the availability of judicial remedies because it is only violations of particular legislative entitlements, rather than violations of the right they in sum constitute, that can found causes of action. Moreover, as we have already noted, the legislative definition of particular entitlements tends to take the form of requiring the provision of particular assistance without requiring that such assistance actually meet existing needs. Therefore, as discussed in relation to the decision in Green v Daniels, the actual level of assistance will be dependent upon budgetary allocations and administrative rationing. Consequently, judicial remedies are confined to ensuring the provision, though not the adequacy, of entitlements and judicial remedies cannot counteract the legislative repeal or alteration of an entitlement. Therefore, the sub-rights provided in such enactments tend to be more in the nature of benefit-rights as the adequacy of entitlements can only be addressed through the pursuit of administrative remedies, that is, remedies that seek compliance with administrative policy and favourable exercise of administrative discretion. Although judicial and quasi-judicial bodies supervise compliance and discretionary action, they cannot order more than is required by the legislation.

This is the predominant form of implementation of ICESCR rights in Australia. For example the Social Security Act 1991 (Cth) expresses no aggregate right to an adequate standard of living or social security, but provides a number of particular entitlements, or sub-rights — available to the unemployed, the aged, the disabled, single parents and others — that, together with entitlements in other Commonwealth and State legislation, could, in theory, amount to provision of an adequate standard of living and thus implementation of the aggregate right. A further example is the Residential Tenancies Act 1997 (Vic) which does not require people on low-income to be provided with rental accommodation, nor does it prohibit security deposits, but does set up a fund to assist people in providing security deposits and allows evictions to be challenged if they would cause hardship. If these sub-rights were supplemented by entitlements in other legislation providing adequate rent subsidies, prohibiting discrimination against people on the ground that they are in receipt of social assistance, and so on, then the collection of sub-rights might enable people to secure the aggregate right to adequate housing. However, it is important to undertake an assessment of whether the sum of sub-rights does constitute the aggregate right granted in the ICESCR, for the persistence of many forms of social and economic deprivation in Australia indicates that they do not. Further, to the extent that it is within the discretion of administrators to provide assistance to meet actual need, it is important to monitor and assess the effectiveness and responsiveness of internal administrative review and appeal procedures. In particular, it is important to discover the receptiveness of both administrative and judicial decision-makers to arguments that seek to use the fulfilment of ICESCR rights as benchmarks for assessing the adequacy of legislative and administrative implementation. This issue is discussed further below in relation to the decision by the High Court in the Teoh case.

Have ICESCR rights been enacted as statements of objectives in legislation?

A further type of implementation is the enactment of statements of objectives that refer to international human rights (typically in aggregate) for particular legislative measures. For example, the Disability Services Act 1991 (ACT) empowers the responsible Minister to make grants of financial assistance to providers of services to the disabled, directly to disabled persons and to researchers in the field of disability. This power is stated to have as its objective the enhancement of the equality, dignity and quality of life of disabled persons and the power is not to be exercised unless it furthers a list of rights of disabled people set out in a Schedule to the Act. Hence, the rights are not directly implemented, nor are any particular entitlements guaranteed; the rights merely condition the exercise of administrative power under the Act. Therefore, at best only benefit-rights are provided, and it is important to assess whether those rights in fact fulfil the ICESCR rights referred to as objectives of the legislation. Again, it is useful to investigate whether such fulfilment is accepted as a benchmark for assessing administrative achievement of the objectives. If not, the sincerity of legislative recognition of the rights of disabled people can be questioned.

Have ICESCR rights been recognised as providing interpretative guidance where legislation is ambiguous?

The final type of implementation we consider, is the general recognition of international human rights obligations as guides to interpretation. For instance, if there is some ambiguity in the meaning of a legislative entitlement or a requirement for administrative action, is a court or administrative decision-maker entitled to interpret the ambiguity so as to further the implementation of international human rights obligations undertaken by Australia? Usually this type of implementation is direct rather than indirect, that is, it refers to aggregate rights rather than sub-rights. Although this method of implementation has only limited operation, in that it is only relevant if there is legislative ambiguity, interpretation is a notoriously creative enterprise and the CESCR believes that States have an obligation to encourage interpretations that conform to ICESCR obligations and, in particular, that States should seek to encourage such interpretations in cases to which they are parties.[82] Despite its limited operation, this type of implementation has, on the one hand, been bolstered by the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh.[83] In that case the Court held that Australia’s undertaking of international human rights obligations can found a legitimate expectation in the minds of applicants that administrative discretion will be exercised consistently with those obligations. However, on the other hand, both past and present Federal Governments have issued declarations expressly stating that the consistency of decisions with international obligations should not be expected, unless expressly required. While legislation of these declarations is pending, their legal effect has not yet been tested.[84] By the same token, and as the CESCR requires, successive governments have confirmed a more limited role for international human rights obligations as relevant considerations for the purposes of administrative decision-making and as sources for resolving legislative ambiguities.[85] Although there is ample evidence that Australian courts, in interpreting legislation and constructing the common law, are willing to be guided by international human rights obligations, it is important to investigate whether tribunals and courts are as willing to be influenced by international social and economic rights as they are by other rights. The relative paucity of cases in which reference has been made to the ICESCR, as well as the fleeting nature of those references, suggests not.

The CESCR’s review of Australia: Substantive concerns

The main purpose of the preceding parts has been to elaborate a framework for the ongoing monitoring and assessment of Australia’s progress towards the implementation of its obligations under the ICESCR. In the first part we outlined the general substance and structure of the obligations imposed by the ICESCR and identified the different types of circumstances in which, if they existed in Australia, it could be said that Australia was in presumptive violation of its ICESCR obligations. In the second part we then focused on the general obligation to provide effective remedies for violations of the ICESCR and considered the range of legislative measures and associated remedies available to Australian governments seeking to implement their obligations. In addition, we identified the extent to which these measures and remedies have been used in Australia and offered a general assessment of their strengths and weaknesses or, in other words, of their effectiveness. The two parts give rise to a framework for assessing Australia’s progress towards implementing the ICESCR in the sense that the first part provides guidance as to what progress, or lack thereof, to look for (e.g.: discrimination, lack of minimum entitlements and so on) and the second part provides guidance as to how that progress, or lack thereof, might be manifest (eg: claim rights or benefit-rights and lack of effective remedies) in one means of implementation (i.e.: legislative enactments).

Since we wrote the preceding parts, the CESCR has completed its most recent review of Australia's compliance with its obligations under the ICESCR. This should provide an opportunity to illustrate the application of this framework and relate it to the process and results of that review. However, although the ICESCR is a legal instrument, and although in interpreting that instrument in its General Comments the CESCR uses legalistic concepts, when expressing its Concluding Observations the CESCR tends to express itself in less legalistic, more diplomatic, and generally brief, terms. Consequently, while the framework we have outlined informs the CESCR’s Concluding Observations, it is not always expressly evident in them.

Against that background, in this part we provide a summary of the process and results of the CESCR’s recently concluded review of Australia’s progress towards implementing the ICESCR, including a consideration of how the principal concerns of the CESCR, read in light of the framework outlined in the preceding parts, can be understood to suggest a variety of types of violations of the ICESCR. In addition, we briefly reflect on the importance of the participation of Australian NGOs in the CESCR’s review process and, more particularly, upon the implications this has for the Government’s agenda of reforming the UN treaty committee system.

The CESCR review of Australia: oral examination

The List of Issues prepared by the CESCR Working Group in May 2000 asked the Government to report more fully on many aspects of its Report.[86] Further information was requested about the domestic implementation of the Covenant, the economic and social rights of indigenous people, the situation of refugees and asylum seekers, assistance for unemployed people, the regulation of trade unions, changes in social security arrangements, claims about the widening gap between rich and poor, the causes of homelessness, the access of vulnerable groups to adequate food, the effects of decreases in health expenditure on vulnerable groups, reports of decreasing standards in public schools, and the poor access of remote indigenous communities to public facilities. Unfortunately, the Government did not reply to these questions, in writing, as it was expected to do before the full CESCR considered Australia’s Report in August. This meant that some of the time set aside for the CESCR’s constructive dialogue with Australia’s representatives in August was taken up with a verbal response to the List of Issues.

The CESCR, in the time devoted to considering Australia’s Report on 24-25 August, questioned the Government’s representatives closely on many aspects of its Report.[87] They began with issues of domestic implementation and why the Covenant had not been entrenched into Australian law. Many CESCR members took the opportunity to comment on this issue, clearly of the opinion that Australia was in breach of the Covenant. The delegation’s response was to insist that the issue was more complicated than the members realized, and that the Covenant did not require Australia to incorporate its provisions into domestic law. They assured the CESCR that ‘many of the rights in the Covenant were best reached through policies such as universal access to health care’,[88] apparently able to ignore the fact that the Government’s policies have severely compromised the public health system. Members of the CESCR took other opportunities as they arose to clarify how Covenant rights were realized through the informal processes favoured by the Government, but received little satisfaction and raised this question again in their Concluding Observations.[89]

The CESCR then addressed the many indigenous issues as a package including self-determination, native title legislation, issues of compensation for the ‘stolen generation’, deaths in custody, and discrimination in employment, housing, health and education. The Government delegation, while acknowledging the poor social and economic conditions endured by many indigenous Australians, insisted that the situation was steadily improving as a result of the Government’s programmes. They told the CESCR ‘that the Government had always been anxious to draw on best practices in relation to Aboriginal affairs’ and that officials had visited Canada and the USA in 1999 for this purpose.[90] Needless to say, the CESCR reiterated their questions about native title and about the comparative disadvantage of indigenous Australians in many social, economic and social fields in the Concluding Observations, encouraging the Government ‘to pursue its efforts in the process of reconciliation’ and towards improving their disadvantaged situation.[91]

Following its consideration of indigenous issues, the CESCR worked through the other questions in its List of Issues in mostly sequential order asking often probing questions. The Committee members received similarly evasive or obfuscatory responses to many of their concerns, or were told that more information would be provided later, in writing. The Australian delegation did refer to the Government’s review of its involvement with the treaty committee system in its formal presentation, suggesting that the CESCR’s approach may influence it. However, as the review outcomes were announced on 29 August, before the CESCR released its Concluding Observations, this remark proved to be gratuitous. Members of the CESCR did, however, probe delegates for an explanation of the review.

The CESCR review of Australia: concluding observations

The CESCR’s Concluding Observations took the standard form of outlining the positive aspects of Australia’s compliance with its obligations before detailing its principal subjects of concern and its suggestions and recommendations. The positive aspects included recognition of the generally high standard of living enjoyed by Australians, the Parliament’s expression of its ‘deep and sincere regret’ for past policies that had a negative impact on indigenous people, health services partnerships between the Government and indigenous people, the increased percentage of women employed at higher levels in the workforce and the Government’s domestic violence partnerships.

The CESCR expressed concern about a number of matters: the lack of entrenchment of the ICESCR in domestic law and the resulting inability to invoke its provisions before courts; the continuing comparative social and economic disadvantage suffered by Aboriginal peoples; the damaging effect on reconciliation of the amendments to the Native Title Act 1993 (Cth); the restrictive effect of the Workplace Relations Act 1996 (Cth) on protection of wages, job security and temporary employment; the lack of social protection and minimum wages for home-workers, and the effects thereof; the lack of paid maternity leave; the inability to assess progress with respect to alleviating poverty given the lack of an official poverty line; the failure of the Residential Tenancies Act 1987 (NSW) to provide adequate security of tenure and adequate protection against eviction and arbitrary rent increase; the incidence of Olympics-related rent increases and evictions; the length of waiting periods for medical, particularly surgical, services; the failure to address previously expressed concerns over the strength of human rights education; and, the lack of information on the comparative quality of education available in private and public schools.

The principal subjects of concern identified by the CESCR indicate that the members were not satisfied with the Government’s response to many of the issues they raised. Further, read in light of the framework outlined in this article, they can be understood to suggest a variety of types of violations of the ICESCR. For instance, the concern over the inability to invoke the ICESCR’s provisions before domestic courts suggests that Australia is in violation of its obligation to provide effective remedies for breaches of the rights guaranteed by the ICESCR. The concerns about Aboriginal peoples, home-workers, renters in NSW, and the lack of maternity leave, suggest that Australia is in violation of its minimum core obligations with respect to some groups and also in violation of the obligation not to discriminate in the implementation of ICESCR obligations. The concern over the impact of legislative amendments affecting workplace relations and native title suggest that Australia has in some respects diminished the social and economic entitlements of certain groups in violation of the (negative) obligation not to undertake retrogressive measures. The concerns over the lack of maternity leave, lack of protection provided to renters in NSW and hospital waiting periods all suggest that Australia is in violation of the (positive) obligation to devote the maximum of available resources to securing the social and economic rights of all Australians. Finally, the concerns over the lack of an official poverty line and the lack of information on the comparative quality of public education suggest a failure to comply with the Guidlelines for Reporting under the ICESCR.

The CESCR’s suggestions and recommendations generally flow from the principal concerns it identifies and include, in addition to incorporating the Covenant into domestic law and pursuing reconciliation with Australia’s indigenous peoples, strengthening provisions for job security, establishing an official poverty line and developing a national housing strategy in keeping with its obligations under the Covenant. The suggestions and recommendations addressing specifically women’s issues included the adoption of measures to ensure that home-workers enjoy adequate conditions of employment,[92] the enactment of legislation granting paid maternity leave,[93] and the provision of gender-disaggregated data concerning the enjoyment of Covenant rights in Australia’s fourth periodic report.[94]

The CESCR’s Concluding Observations, and the suggestions and recommendations they contain, are a good outcome for the NGOs who worked hard to advocate for those who are disadvantaged by the Government’s social and economic policies and to highlight the lack of legal remedies available to those whose rights are violated. While the CESCR can do little to follow up these recommendations beyond addressing them in its next periodic review of Australia’s compliance,[95] its findings provide an important source of support for domestic organisations and individuals who are concerned about Australia’s human rights record and want to promote change. The ultimate effectiveness of the CESCR’s observations is largely dependent on continued domestic efforts that draw public attention to human rights violations within Australia and lobby for effective, legally sanctioned remedies to be put in place.

Without the information provided in NGO Shadow Reports, the CESCR would not have been so well equipped to consider Australia’s Report with a critical eye. Indeed, it could even be said that, but for the participation of NGOs in the review process — which, it must be noted, requires a significant devotion of time, money and energy — the CESCR would have struggled to conduct a meaningful review. Needless to say, the ultimate objective of the CESCR, along with the rest of the UN treaty committee system, should be to conduct meaningful reviews of State compliance. Yet we feel the need to emphasise that this objective is what must remain paramount as the Government pursues its concerns about the integrity and relevance of that system. In its review of Australia’s interaction with the UN treaty committee system the Government complained that the committees have paid too much attention to the submissions of NGOs and too little attention to the submissions of democratic governments. One problem with this complaint, however, is its assumption that government submissions contain information of sufficient relevance and import, and that governments are otherwise willing and able to adequately and openly participate in the review process. Whatever may be the case with the Australian Government’s Reports to other UN treaty committees, this assumption does not hold true with respect to its Report under the ICESCR, nor with respect to its participation in the CESCR review process. As mentioned in the first part of this article, the information provided in Australia’s Report was uniformly deficient and at times misleading. And as should be apparent from the brief summary provided in this part, the Government’s delegation to the formal review process appeared both unwilling and unable to meaningfully engage the issues of concern to the CESCR. In such circumstances, any lesser degree of participation by Australian NGOs, or any lesser consideration of their submissions by the CESCR, would have seriously compromised the integrity, relevance and, therefore, meaningfulness, of the review process. So while the Government may be right to be concerned about some aspects of the integrity and relevance of the UN treaty committee system, for it to pursue reforms forcing committees to rely more heavily upon government submissions would, at least in the case of the CESCR, be to move in precisely the wrong direction.


This paper is intended to assist efforts to assess Australia’s compliance with its obligations under the ICESCR. In the first part of the paper we have sought to clarify the obligations imposed by the ICESCR through a consideration of the 4-part typology of duties arising from all human rights obligations and the specific words of the ICESCR, as interpreted and applied by the CESCR. Although there are a variety of inter-related aspects to States’ obligations, it is clear that the most comprehensive implementation of rights requires a combination of means. Further, it is possible to identify a series of circumstances in which a State can be presumed to be violating its obligations under the ICESCR. These include circumstances of discrimination in the enjoyment of ICESCR rights; denial of minimum core entitlements of ICESCR rights; and decreases, stagnation or insufficiencies in improvements in above minimum entitlements to ICESCR rights. The question then, which we do not address in any comprehensive way, is whether there is any evidence that these circumstances exist in Australia and, if so, whether the presumptions can be rebutted. An initial answer to that question has been undertaken by the NGO community through various mechanisms including ASERP and WRANA,[96] but this work needs to continue. One obstacle that the NGO community has faced is the lack of evidence supplied by Australia in its CESCR Report to support its positive assessments of its own performance. This we consider to be itself a violation of a further obligation upon States to comply with the Guidelines for Reporting of the CESCR.[97] Nevertheless, the obvious persistence of economic and social deprivation in Australia indicates that violations of the ICESCR are occurring.

This raises the issue of the obligation of States to provide effective domestic remedies for violations of ICESCR rights. Having identified that obligation in the first part of this paper, in the second part we have sought to undertake a more sustained treatment of that obligation with the objective of identifying some important factors to consider in assessing Australia’s compliance. In order to satisfy the obligation to provide effective remedies for violations of the rights guaranteed by the ICESCR, States need to establish comprehensive mechanisms of redress and accountability. Such mechanisms need not rely exclusively upon judicial remedies and, indeed, will tend to combine both judicial and non-judicial/administrative remedies. In other words, both claim-rights and benefit-rights have a role to play in the provision of effective remedies. However, States are ultimately obliged to ensure the effectiveness of the remedies they provide, so an important aspect of assessing Australia’s compliance with its obligations under the ICESCR is the investigation of this issue. By reference to some common forms of implementation, it is possible to identify some important factors to be considered in assessing the effectiveness of the various remedies provided in Australia. Those factors include whether Australia protects ICESCR rights to the same extent that it protects other international human rights and whether the ICESCR, and its associated jurisprudence, is an accepted benchmark for judicial or administrative review of definitions or applications of ICESCR related claim-rights or benefit-rights. One glaring failure is the single exclusion of the ICESCR from the jurisdiction of HREOC to monitor compliance with international human rights instruments in Australia. While we have also indicated other problems, in particular the apparent lack of any comprehensive approach to implementation of the ICESCR or to provision of remedies, as well as the heavy reliance upon benefit-rights rather than claim-rights, we believe that the exclusion of the ICESCR from the jurisdiction of HREOC is representative of the general reluctance of Australian governments to undertake a good-faith implementation of the ICESCR and to ensure the realisation of its rights for all Australians.

Finally, it is clear that the CESCR’s recent review of Australia’s compliance with its obligations under the ICESCR raises many of the same issues that other human rights treaty committees have highlighted – in essence, the lack of a comprehensive and effective system for the protection of human rights, which leaves many groups vulnerable to human rights violations and without any means of redress. The vulnerable groups include indigenous people, women on low incomes, refugees and asylum seekers, lesbians and gay men, immigrants from non-English speaking backgrounds, and children living in poverty. But the review also raises a further problem of the compatibility of Australia’s free-market economic policies with the protection and promotion of economic, social and cultural rights. The dismantling of the welfare state and its networks of community-based service providers, in favour of profit-driven delivery of economic and social services, threatens the very idea of economic and social guarantees. These problems are compounded by the Australian Government’s new-found antipathy to human rights treaty committees. At the same time, it is heartening that human rights awareness and activism in Australia is more apparent than ever before. The effective involvement of NGOs in the CESCR’s review of Australia’s compliance provides just one example. There have never been so many reasons for Australians to express their disagreement with the Federal Government’s approach to the implementation of human rights, and NGOs continue to have a crucial role to play.

[*] Dianne Otto is a Senior Lecturer, Faculty of Law, University of Melbourne. Her contribution to this project is part of work made possible by an ARC Small Grant (1999). David Wiseman, formerly an Assistant Lecturer, Faculty of Law, Monash University, is presently a Doctoral Candidate in the Faculty of Law, University of Toronto. Both authors would like to thank Leilani Farha for her initiation of this project.

[1] Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia. E/C.12/1/Add.50, 1 September 2000. The Concluding Observations of the CESCR comprise its opinion on the state of Australia’s compliance with the ICESCR. This opinion is not legally binding, but it has important political and diplomatic dimensions and provides a useful means for Australian non-governmental organisations (NGOs) and others to promote improved compliance domestically. The Concluding Observations, Australia’s Report and other related documents can be found at the United Nations (UN) Treaty Bodies Data Base

[2] The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the UN General Assembly, Res 2200(XXI), 16 December 1966. It entered into force on 3 January 1976, three months after the 35th ratification or accession.

[3] Minister for Foreign Affairs, Joint Media Release, ‘Improving the Effectiveness of United Nations Committees’, 29 August 2000, FA97. The media release announced the findings of a whole-of-government review, which had been announced by the Australian Government on 30 March 2000. See ‘Government “goes after” UN committee system’, 125 Unity News: Weekly News Summary 1-2, 31 March.

[4] See ‘Government “goes after” UN committee system’, 125 Unity News: Weekly News Summary 1-2, 31 March 2000. See See CERD, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia. 19/04/2000. CERD/C/304/Add.101.

[5] Minister for Foreign Affairs, above note 3.

[6] Minister for Foreign Affairs, above note 3.

[7] Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS.

[8] Periodic Report: Australia 23/07/98. E/1994/104/Add.22, 23 July 1998. See

[9] List of Issues: Australia. 23/25/2000. E/C.12/Q/AUSTRAL/1.

[10] The CESCR takes account of information from NGOs in order to analyse and respond to State’s reports. See NGO participation in activities of the Committee on Economic, Social and Cultural Rights: 12/05/93. E/C.12/1993/WP.14, 12 May 1993. Many of the Shadow Reports prepared for the CESCR by Australian NGOs can be found at

[11] The CESCR drew attention to this question in its List of Issues, above note 9, para 9, and in its Concluding Observations, above note 1, paras 14 and 24.

[12] While the division of the rights contained in the UDHR into two separate treaties may give the impression that they operate in distinct spheres, and has been exploited by those who argue that the rights guaranteed by the ICESCR are not justiciable, we prefer the view that the rights guaranteed in these, and other, treaties are ‘interdependent’ and ‘permeable’: Scott C ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall Law Journal 769 and ‘Reaching Beyond (Without Abandoning) the Category of “Economic, Social and Cultural Rights”’ (1999) 21 Human Rights Quarterly 633. We are also of the view that the rights in the ICESCR are no less justiciable than other human rights: see, for general discussion of this issue, Vierdag EW ‘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; Scott C and Macklem P ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a Future South African Constitution(1992) 141 University of Pennsylvania Law Review 1. For general consideration of the development, and implications, of the ICESCR, see: Craven M The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Clarendon Press, Oxford, 1995); Eide A, Krause C and Rosas A (eds) Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff Publishers, Dordrecht, 1994) and Hunt P Reclaiming Social Rights: International and Comparative Perspectives (Dartmouth, Aldershot, 1998).

[13] The ICESCR was signed for Australia on 18 December 1972 and the instrument of ratification was deposited for Australia on 10 December 1975 without reservation. It entered into force for Australia on 10 March 1976.

[14] See ICESCR Arts 16-17; ICCPR Art 40.

[15] The CESCR was established by the Economic and Social Council, Res 1985/17, 1985 UN ESCOR Supp (No 1) at 15, UN Doc E/1985/85 (1985); the HRC was set up under the ICCPR, Arts 28-31.

[16] Optional Protocol to the ICCPR, UN General Assembly Resolution 2200A(XXI), 16 December 1996. It entered into force for Australia on 1 December 1991. A similar Protocol to the ICESCR has been drafted but not yet adopted. A Report of the Committee on Economic, Social and Cultural Rights on the subject (E/CN.4/1997/105) was submitted for consideration by the Commission on Human Rights at its 53rd session held in Geneva, from 17 March to 25 April 1997. For discussion of this issue, see Coomans F and van Hoof GJH (eds) The Right to Complain about Economic, Social and Cultural Rights: Proceedings of the Expert Meeting on the Adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Utrecht, 25-28 January 1995) (Netherlands Institute of Human Rights, Utrecht, 1995).

[17] Revised general guidelines regarding the form and contents of reports to be submitted by states parties under Articles 16 and 17 of the ICESCR: 17/06/91. E/C.12/1991/1. 17 June 1991; Consolidated guidelines for State reports under the ICCPR: 01/11/99, CCPR/C/66/GUI/REV.1, 1 November 1999.

[18] To date, the CESCR has adopted 14 General Comments and the HRC has adopted 28.

[19] NGO Participation, above note 10.

[20] Australia has submitted two earlier Reports. The 2nd Periodic Report of Australia covered Arts 13-15, E/1990/7/Add.13) and was considered by the CESCR in May 1993.

[21] Periodic Report: Australia, above note 8.

[22] The appendices appear not to be available on the web. Anyone interested is advised to contact the Treaties Secretariat, Legal Branch, International Organisations and Legal Division, Department of Foreign Affairs and Trade, or email:

[23] Core Document forming part of the Reports of State Parties, Australia, HRI/CORE/1/Add.44, 27 June 1994. The Core Documents deposited with the UN treaty monitoring bodies give an overview of the political, social, economic and legal circumstances of the State Party.

[24] List of Issues, above note 1, para 1.

[25] See Frankovits A and Earle P ‘The Full Monty ... Not’ (1998) March Human Rights Defender, 9.

[26] Periodic Report: Australia, above note 8, para 7.

[27] Revised general guidelines, above note 13.

[28] Porter B ‘Judging Poverty: Using International Human Rights Law to Refine the Scope of Charter Rights’ (2000) 15 Journal of Law & Social Policy 117, Part I.

[29] Frankovits and Earle above note 25.

[30] WRANA, Retreating From The Full Realisation of Economic, Social and Cultural Rights in Australia: A Gendered Analysis (prepared by Dianne Otto, December 1999). The objectives of WRANA are to facilitate Australian activism for the promotion and protection of women’s human rights in domestic and international arenas. See

[31] ASERP, Australia’s Compliance with the ICESCR: Community Perspectives (VCOSS, 2000). ASERP was established to provide education and training on the domestic application of the ICESCR and to encourage the participation of many NGOs in the process of monitoring Australia’s compliance with its obligations. To this end, a diverse group of over 50 Australian NGOs and individuals undertook an assessment of social and economic rights in Australia in order to submit a shadow report to the CESCR for consideration in its forthcoming review of Australia. See web site, above note 10. For further details email:

[32] ATSIC, Aboriginal and Torres Strait Islander Peoples and Australia’s obligations under the United Nations Convention on the Elimination of all Forms of Racial Discrimination, February 1999.

[33] Some confusion can arise from use of the term ‘State’ when considering the domestic application of international law in countries with a federal political system. In international law, the term ‘State’ refers to countries or nation-states, such as Australia, whereas in Australian domestic law the term refers to geographic political entities within the country, such as Victoria. We use the term in both ways throughout this paper; the reference should be clear from the context of those uses.

[34] While it is generally true that treaties are not self-executing in Australia, this does not apply to certain categories of treaties like, for instance, treaties concerned with the conduct of war. This issue is complicated further if a treaty states a rule of customary international law or a rule that is a part of the common law of Australia. These questions have yet to be fully explored by the High Courtof Australia. See Mitchell A ‘Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson(2000) 24 Melbourne University Law Review 26-30.

[35] This typology was embraced in the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc.E/CN.4/1987/17, Annex, reprinted in (1987) 9 Human Rights Quarterly 122. The typology was introduced by Henry Shue, Basic Rights (Princeton University Press, Princeton, 1980). The typology has been further confirmed and its implications further elaborated in The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, set out in (1998) 20 Human Rights Quarterly 691.

[36] The domestic application of the Covenant: 03/12/98. General Comment 9 E/C.12/1998/24, 3 December 1998, para 10.

[37] See, for example, Romany C ‘State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law’, in Cook R (ed) Human Rights of Women: National and International Perspectives (University of Pennsylvania Press, 1994) p 85.

[38] For example, in response to Australia’s 2nd Periodic report on Arts 13-15 the CESCR recommended ‘that further measures be taken to strengthen the human rights education component in formal and non-formal curricula’ (para 14) and that Australia’s reports to the CESCR and the Committee’s responses be made ‘widely know and available to the public’ (para 16), Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, 03/06/93, E/C.12/1993/9, 3 June 1993.

[39] Alston P and Quinn G ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156.

[40] Article 2, para 1: the nature of States parties obligations: 14/12/90. General Comment 3, para 2, 14 December 1990.

[41] International technical assistance measures (Article 22): 02/02/90. General Comment 2, 2 February 1990.

[42] UN Charter, Arts 1(3), 55 and 56.

[43] General Comment 3, above note 40, para 10.

[44] For consideration of how to answer such a question, see Robertson R ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social and Cultural Rights’ (1994) 16 Human Rights Quarterly 693.

[45] General Comment 3, above note 40, para 9.

[46] General Comment 3, above note 40.

[47] General Comment 3, above note 40, para 5.

[48] General Comment 3, above note 40.

[49] General Comment 3, above note 40.

[50] General Comment 3, above note 40, para 6.

[51] General Comment 9, above note 36, para 9.

[52] The general framework of presumptive violations used in the summary is by no means original to us and is based, in particular, upon The Limburg Principles and The Maastricht Guidelines, above note 35. For further discussion of the means by which violations of the ICESCR might be identified, see: Leckie S ‘Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights’ (1998) 20 Human Rights Quarterly 81; and, Chapman A ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23.

[53] In general, the term ‘substantive equality’ is contrasted with ‘formal equality’ and refers to the idea that equality requires attention to differences in people’s substantive circumstances of life, not just to the different ways they may be treated by formal law. For instance, while formal equality may be satisfied where neither hearing nor deaf patients are prohibited from access to public health care, substantive equality recognises that unless translation services are available for deaf patients, their formally equal access to such care is substantively meaningless: for a decision to this effect under the equality provision of the Canadian Charter of Rights and Freedoms, see Eldridge v. British Columbia (A-G) [1997] 3 S.C.R. 624. For further discussion of this issue see: Cain P A ‘Feminism and the Limits of Equality’ (1990) 24 Georgia Law Review 803; Fineman M The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (University of Chicago Press, Chicago, 1991).

[54] Reporting by States parties: 24/02/89. CESCR General Comment 1, 24 February 1984.

[55] The CESCR provides States parties with a 22-page set of reporting guidelines which outline the type of information it requires to monitor compliance with the Covenant: see Revised general guidelines, above note 17.

[56] Curiously, or perhaps diplomatically, in the introduction to its Concluding Observations the CESCR stated that Australia’s Report had complied with the revised guidelines for reporting, although further on it requested that the Government provide more detailed information in its next report: Concluding Observations: Australia, above note 1, paras 2 and 36.

[57] See, for instance, Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1.

[58] Williams D ‘Australia’s Treaty-Making Processes: The Coalition’s Reform Proposals’, in Alston P and Chiam M (eds) Treaty-Making and Australia: Globalization versus Sovereignty? (Federation Press: Sydney, 1995) p 185.

[59] General Comment 9, above note 36, para 2.

[60] General Comment 9, above note 36, para 9.

[61] General Comment 9, above note 36, para 3.

[62] General Comment 9, above note 36, para 7.

[63] The right to adequate housing (Art 11(1) of the Covenant). General Comment 7, E/C.12/1997/4, para 10.

[64] The right to adequate housing, above note 63.

[65] The right to adequate housing (Art 11(1)) General Comment 4. E/C.12/1991/4, para 8. For a consideration of the implementation of this right in Australia, see Devereux A ‘Australia and the Right to Adequate Housing’ (1991) 20 Federal Law Review 223.

[66] In using the terms ‘direct’ and ‘indirect’ implementation, we would like to draw attention to General Comment 9 of the CESCR where the distinction in form, to which the terms refer, is implicit in the Committee’s approach: above note 36, paras 4 and 8. Further, for an insightful description and analysis drawing attention to, in our terms, ‘indirect implementation’ of the right to an adequate standard of living by the Federal Government see Bailey P ‘The Right to an Adequate Standard of Living: New Issues for Australian Law’ [1997] AUJlHRights 14; (1997) 4(1) Australian Journal of Human Rights 25.

[67] Green v Daniels (1977) 51 ALJR 463. This case is discussed at greater length in Bailey P Human Rights: Australia in an International Context (Butterworths: Australia, 1990) p 328.

[68] Green v Daniels (1977) 51 ALJR 463 at 469.

[69] For a considerably more expansive reading of express rights in the Australian Constitution see Bailey, above note 67 at 84-86.

[70] For a full discussion of implied rights in the Australian Constitution, and the changing approaches of the High Court to this, see Williams G Human Rights under the Australian Constitution (Oxford University Press: Australia, 1999).

[71] Charlesworth H ‘The Australian Reluctance About Rights’ (1993) 31 Osgoode Hall Law Journal 195.

[72] This extension of HREOC jurisdiction with respect to discrimination in employment resulted from the scheduling of ILO Convention 111, Discrimination (Employment and Occupation) Convention 1958, to the HREOC Act 1986. The seven grounds of discrimination covered by Convention 111 are race, colour, sex, religion, political opinion, national extraction or social origin.

[73] Due to the interdependence of international human rights, however, exercise of these powers with respect to the rights enumerated in one international human rights instrument can be relevant to ICESCR rights: for instance, HREOC’s National Inquiry into Homeless Children (1989) and National Inquiry into Human Rights of People with Mental Illness (1993).

[74] General Comment 9, above note 36, para 7.

[75] Periodic Report: Australia, above note 8 at 2.

[76] Core Document: Australia, above note 23, para 223-238.

[77] Discrimination Act 1991 (ACT), Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1992 (NT), Anti-Discrimination Act 1991 (Qld), Equal Opportunity Act 1984 (SA), Sex Discrimination Act 1994 (Tas), Equal Opportunity Act 1995 (Vic).

[78] For example, Tasmania only proscribes discrimination on the basis of sex, marital status, pregnancy and family responsibility, while discrimination on the basis of sexuality is not prohibited in Western Australia or Tasmania and only New South Wales has addressed same sex couple-based discrimination.

[79] In Canada, for instance, the Quebec Charter of Rights and Freedoms (R.S.Q. 1977, c C-12) provides protection against discrimination based on, among other grounds, ‘social condition’ (s 10); the Nova Scotia Human Rights Act (S.N.S. 1991, c12) and the Manitoba Human Rights Code (C.C.S.M., c H175) both provide protection against discrimination based on ‘source of income’ (ss 5(1)(t) and 9(2)(j), respectively) and the Ontario Human Rights Code (R.S.O. 1990, c H19) provides protection against discrimination based on ‘receipt of public assistance’, though only in relation to accommodation (s 2(1)). See Jackman M ‘Constitutional Contact with the Disparities in the World: Poverty as a Prohibited Ground of Discrimination Under the Canadian Charter and Human Rights Law’ (1994) 2 Review of Constitutional Studies 76. It has also been proposed that this ground be included in the Federal Canadian Human Rights Act (R.S.C. 1985 c H-6). See Jackman M and Porter B ‘Women’s Substantive Equality and the Protection of Social and Economic Rights under the Canadian Human Rights Act’ in Status of Women Canada Women and the Canadian Human Rights Act: A collection of policy research reports (Ottawa: SWC, 1999) 43.

[80] The Federal anti-discrimination regime was altered considerably by the Human Rights Legislative Amendment Act (No 1) 1999 (Cth) which transferred the power to conciliate discrimination complaints from the existing Race, Sex and Disability Discrimination Commissioners to the President of HREOC, thus removing those with specialist expertise from the conciliation process. Further, the reforms remove the power to hear disputes that cannot be settled from HREOC to the Federal Court of Australia. There is concern that the costs involved in the new system will deter litigants, especially those from the disadvantaged groups that the legislation is designed to protect, and that the reduced advocacy functions of HREOC will create further disincentives to use Australia’s already inadequate anti-discrimination laws. See further, Gaze B ‘The Costs of Equal Opportunity’ (2000) 3/25 Alternative Law Journal 125.

[81] For a discussion of anti-discrimination legislation and procedures, including shortcomings, see Bailey P and Devereux A ‘The Operation of Anti-Discrimination Laws in Australia’, in Kinley D (ed) Human Rights in Australian Law (Federation Press: Sydney, 1998) p 292.

[82] See General Comment 9, above note 36, para 11.

[83] [1995] HCA 20; (1995) 183 CLR 273. See further, Allars M ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s case[1995] SydLawRw 16; (1995) 17 Sydney Law Review 204.

[84] Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth), s 5.

[85] Above note 84, s 7.

[86] List of Issues: Australia, above note 9.

[87] Notes were provided to me by Leilani Farha from the Centre for Housing Rights and Evictions (an international NGO) who attended the CESCR. Representatives of ASERP — Annie Pettitt, Anna Cody, Melissa Coad and Clancy Kelly, also kept me informed via email.

[88] Press Release, ‘Committee on Economic, Social and Cultural Rights continues consideration of Third Periodic Report of Australia’, 25.08.00.

[89] Concluding Observations: Australia, above note 1, para 24: ‘The Committee strongly recommends that the State party incorporates the Covenant into its legislation, in order to ensure the applicability of its provisions in the domestic courts. The Committee urges the State party to ensure that no conflicts occur between the Commonwealth and State law in this respect. The Committee encourages the State party to follow the High Court’s position concerning ‘legitimate expectations’ arising from the ratification of the Covenant.’

[90] Press Release, above note 88.

[91] Concluding Observations: Australia, above note 1, para 25.

[92] Concluding Observations: Australia, above note 1, para 27.

[93] Concluding Observations: Australia, above note 1, para 28.

[94] Concluding Observations: Australia, above note 1, para 36.

[95] Australia’s fourth periodic review is due to be submitted by 30 June 2005.

[96] See web site, above note 10.

[97] General Comment 1, above note 54.

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