In Search of 'Effective Remedies': Applying the International Covenant on Economic, Social and Cultural Rights in Australia

Abstract

The paper is divided into three parts. First, we outline the content of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and clarify the obligations that it imposes on States Parties. We 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. 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. One obstacle is the lack of evidence supplied by Australia in its Periodic Report (1991-1997) 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 to the ICESCR. Nevertheless, the persistence of economic and social deprivation in Australia indicates that violations of the ICESCR are occurring. In the second part we undertake a more sustained treatment of Australia's obligation to provide effective domestic remedies for violations of ICESCR rights. In order to satisfy the obligation, States need to establish comprehensive mechanisms of redress and accountability. Such mechanisms will tend to combine both judicial and non-judicial/administrative remedies, but States are ultimately obliged to ensure the effectiveness of the remedies they provide. Factors to be considered 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 ICESCR related claim-rights or benefit-rights. One glaring failure is the single exclusion of the ICESCR from the jurisdiction of the Human Rights and Equal Opportunity Commission , which monitors compliance with international human rights instruments in Australia. We believe that this exclusion is representative of the general reluctance of Australian governments to undertake a good faith implementation of the ICESCR. In part three, we briefly summarize the ICESCR's recent review of Australia's compliance and its Concluding Observations. The review 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. 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 favor 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.