ESC Rights: Legal Opinion on Justiciability of ESC Rights in an Australian Human Rights Act

On 8 October 2009 the National Human Rights Consultation Committee recommended that Australia enact a Human Rights Act.  However, although the Consultation clearly demonstrated the right to adequate housing, health care and education are the 'rights that matter most' to Australians, the Committee further recommended that, if an Australian Human Rights Act enshrines social and economic rights, those rights should not be justiciable.  This recommendation was based on an advice from Stephen Gageler SC (the Commonwealth Solicitor-General) and Henry Burmester QC which relevantly and briefly stated that there are constitutional problems with the entrenchment of ESC rights. The Human Rights Law Resource Centre considers that all human rights are interdependent, mutually reinforcing and indivisible.  We consider that an Australian Human Rights Act should enshrine social and economic rights and that both international law and Australian constitutional law clearly establish that such rights are justiciable and enforceable.

Consistent with this view, the Centre obtained a Memorandum of Advice from Peter Hanks QC, Debbie Mortimer SC, Associate Professor Kristen Walker and Graeme Hill on the justiciability of social and economic rights under a Commonwealth Human Rights Act.

Contrary to the brief advice from the Solicitor-General, this advice clearly states that:

  • there is no necessary constitutional objection to including economic and social rights in any federal Human Rights Act;
  • economic and social rights are no more broadly expressed than civil and political rights, which are capable of being interpreted and applied in the exercise of federal judicial power;
  • decisions about social and economic rights may have implications for the allocation of budgetary resources, however the same is true for all human rights; and
  • it is an overstatement to say that ICESCR rights do not contain judicially manageable standards.

The opinion concludes that the real issue is whether economic and social rights can be appropriately expressed and the court's role limited. So long as rights are framed so as to give them specific content, and the court's role limited to a consideration of whether the government's action was reasonable within the available resources (as under the South African constitution), social and economic rights are capable of being protected and promoted in Australian law.

In light of the the findings of the Consultation as to the importance of ESC rights, Australia's international obligations as to the interdependent protection and promotion of all rights, and the attached advice as to the constitutional justiciability of ESC rights, it is imperative that an Australian Human Rights Act enshrine all civil, political, economic, social and cultural rights and that such rights be justiciable and enforceable.