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Hansard extract: Economic, social and cultural rights research project — report; Paper; Corbell

Week 14, Part 3
09 Dec 2010
Economic, social and cultural rights research project — report
Mr Corbell (Molonglo) [6124-6127]
For the information of members, I present the following paper:

          Australian Capital Territory Economic, Social and
          Cultural Rights Research Project—Australian Research
          Council Linkage Project LP0989167—Report, dated
          September 2010.

I move:

That the Assembly take note of the paper.

It gives me great pleasure today to table a report on options for recognition of economic, social and cultural rights in the ACT human rights framework. It is significant that the report is being tabled today, as tomorrow, 10 December, is United Nations Human Rights Day, which marks the anniversary of the UN General Assembly’s adoption of the Universal Declaration of Human Rights in 1948. The ACT has a proud history in the protection and promotion of human rights, being the first jurisdiction in Australia to enact a legislative bill of rights in the form of a Human Rights Act, which commenced in 2004.

Last year I was pleased to be able to table in this place a report on five years of operation of our Human Rights Act. The government is continuing to examine the recommendations made in that report, which was prepared as the result of research undertaken by the Australian National University in conjunction with my department as an industry partner under a grant funded by the Australian Research Council.

The report I table today continues in the tradition of what has now become a productive and collaborative relationship for the ACT with the Australian National University. On this occasion this well-presented, thoroughly researched and comprehensive report has been prepared by a research team led by two internationally recognised human rights lawyers, Professor Hilary Charlesworth from the Australian National University and Professor Andrew Byrnes from the University of New South Wales.

The project was funded by the Australian Research Council, and the ACT Department of Justice and Community Safety was again proud to be involved as an industry partner. The project examined whether the Human Rights Act should be amended to explicitly incorporate those rights included in the International Covenant on Economic, Social and Cultural Rights and, if so, the likely impact of such incorporation on governance in the ACT.

The report is the first step in honouring the government’s commitment to consider the question of whether rights covered under the Human Rights Act should be expanded to include economic, social and cultural rights. The report provides a rigorous account of the relevant literature, international case law and experience of other jurisdictions with legally codified economic, social and cultural rights, such as Ireland, South Africa and India.

The report modestly indicates that the project team had the benefit of visits from four distinguished South African visitors, including a current and a former justice from the South African Constitutional Court. In fact, it was in no small part due to the calibre of the principal investigators, as professors Charlesworth and Byrnes are called for the ARC grant purposes, that the ACT was able to attract to Canberra the likes of justices Yvonne Mokgoro and Albie Sachs of the South African Constitutional Court, Mr Cameron Jacobs of the South African Human Rights Commission and Professor Sandy Liebenberg of the Stellenbosch University to take part in the dialogue that has informed this report. Indeed, I was particularly privileged to have had the opportunity to host a roundtable session here at the Assembly where our discussions were led by Professor Liebenberg.

While some may argue that the situation in the ACT is a world away from the economic, social and cultural experiences of South Africa, we should never forget that human rights are of a universal and individual nature. They apply as much to citizens of the world in Canberra as they do in Cape Town. It was nevertheless fascinating for me and others who attended the sessions to hear first hand from these dignitaries about their experiences of how South Africa has approached progressive realisation of economic, social and cultural rights in the wake of extended periods of rights repressions in that country.

I used those words “progressive realisation” deliberately. There are those who fear what they perceive as a sudden adoption of any new rights-based framework. But as this report clearly discusses and ultimately recommends for consideration by government and the ACT community, there are ways that economic, social and cultural rights could be incrementally and progressively absorbed, subject to available resources within our existing framework and in the context of the ACT statute book.

To explore those methods and to inform the report, a pivotal component of the work of the project team was holding a series of roundtable forums, in many instances led by the South African visitors, to gauge the views of a number of representatives from government and the community sector, with a particular focus on topics such as health, housing, education, the environment and water issues.

The project team concludes that the inclusion of most economic, social and cultural rights in the Human Rights Act, based on the International Covenant on Economic, Social and Cultural Rights, would be desirable. They make 15 recommendations about the particular rights that should be included in the Human Rights Act, including rights to adequate housing, health, a healthy environment, education, work and the right to take part in cultural life. The report also identifies those rights not recommended for inclusion and the reasons why they should not be included: the right to self-determination, the right to intellectual property and the right to protection of the family and children—as a similar right is already recognised in section 11 of the Human Rights Act.

The report considers practical issues about the incorporation of economic, social and cultural rights into our Human Rights Act alongside the established framework for civil and political rights. One of the challenging things about these rights is that, despite the presence of international covenants, different jurisdictions have chosen to adopt and adapt them in subtle but significantly differing ways. In relation to each of the rights explored in the report, the project team has thoughtfully and thoroughly examined the way in which up to 27 different models have been developed in instruments around the world, including United Nations, European and African charters and in some cases domestic models in such countries as Germany, Portugal, Hungary, Spain and Japan, in addition to the countries I have already mentioned.

After their comprehensive analysis, the project team worked with our own parliamentary counsel’s office to propose a description of relevant rights that could potentially be made to fit with our own domestic model. The government sought legal advice on whether there would be any constitutional issues arising from adoption of such rights here, especially in connection with the exercise of judicial power. The advice clearly indicates that there would be further issues to consider, if and when a decision is made to adopt such rights and depending on the precise formulation that might be adopted for them, but concludes that an economic, social and cultural rights framework could be applied consistently with our Westminster tradition of government in the territory.

Because I believe it will enhance the debate on this topic, I have agreed to this advice being released with the report, noting that this in no way constitutes government endorsement of any particular formulation for the rights or the specific recommendations in the report at this time.

The question of whether to incorporate economic, social and cultural rights into ACT law is a complex one that raises many issues for all parts of our community, not just government. These questions will need to be considered in detail by the government, in consultation with the community.

The objectives of the Australian Research Council’s linkage grant program include: to encourage excellent collaborative research within universities and across the innovation system, to contribute to a strong knowledge economy and to create opportunities for cooperation with related programs across portfolios. The linkage project scheme supports collaborative research and development projects between higher educational organisations and other organisations, including within government and industry, to enable the application of advanced knowledge to problems. Typically, research projects funded under this scheme involve risk.

The proposals for funding under linkage projects must involve a collaborating organisation from outside the higher education sector. The collaborating organisation must make a significant contribution equal to or greater than the ARC funding, in cash and/or in kind, to the project.

With that in mind, I believe members of this place and the broader Canberra community—indeed, I venture to suggest the broader Australian community—could take pride in the fact that the ARC recognised the merit of the proposal by the ANU and the University of New South Wales, working collaboratively with my department, to explore options and implications for including economic, social and cultural rights in a statutory framework such as now exists in our human rights jurisdiction here in the ACT. I understand that the research embodied in this report may constitute the first Australian attempt to comprehensively canvass legally codifying economic, cultural and social rights in an Australian jurisdiction. I am delighted to be able to receive the document and table it here today.

In commending it to members, I want to acknowledge in particular the efforts of professors Charlesworth and Byrnes and Dr Katie Young and Ms Renuka Thilagaratnam in their research team. From the Department of Justice and Community Safety, I would like to mention the Deputy Chief Executive, Mr Stephen Goggs, for his leadership role in liaison between the academics and ACT government agencies, not least including the legislation policy branch of my department and the offices of the Government Solicitor and Parliamentary Counsel. I would also like to acknowledge the role of the ACT human rights commissioner, Dr Helen Watchirs, as a member of the project’s reference group.

This report provides an excellent springboard for mature consideration of the issues that go with the next logical step in our human rights evolution in this jurisdiction. I look forward to having that conversation with members, with individual Canberrans, businesses, community organisations and other parts of the government in due course. I commend the report to the Assembly.

Question resolved in the affirmative.

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