Second-Class Rights Yet Again? Economic, Social and Cultural Rights in the Report of the National Human Rights Consultation

University of New South Wales Law Journal, Vol. 33, No. 1, pp. 193-238, 2010

UNSW Law Research Paper No. 2010-26

46 Pages Posted: 4 Jul 2010

See all articles by Andrew C. Byrnes

Andrew C. Byrnes

University of New South Wales (UNSW) - Faculty of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: July 3, 2010

Abstract

In September 2009 the National Human Rights Consultation Committee delivered its report to the Australian government on the results of its inquiry into the protection of human rights in Australia. That report contained many recommendations to enhance the understanding and protection of human rights in Australia. This article examines the treatment by the Committee of economic, social and cultural rights (ESCR) in comparison with civil and political rights (CPR). While the Committee recognised the status and importance of ESCR, its doubts about the ‘justiciability’ of ESCR and the appropriateness of courts playing a role in their implementation meant that it did not support the inclusion of ESCR in the legislative bill of rights it proposed, though ESCR were included in other proposed reforms.

This article argues that, while the NHRCC’s recommendations had the potential to improve the observance and enjoyment of ESCR, its proposals to limit the full inclusion of ESC rights in its preferred scheme of rights protection were underpinned by an undue emphasis on differences between ESCR and CPR rights. These recommendations were also based on a traditional understanding of the nature of ESC rights that has been fundamentally challenged as a result of academic and judicial developments over the last three decades. In adopting this approach, the NHRCC once again constituted ESC rights as the poor cousin in the world of human rights protection, even as it made proposals that would strengthen their protection in some respects. The article also analyses the treatment of ESCR in the Australian Human Rights Framework, announced by the Government in April 2010 in its response to the Report.

Keywords: Human Rights, Economic, Social and Cultural Rights, Bills of Rights, Australia

Suggested Citation

Byrnes, Andrew C., Second-Class Rights Yet Again? Economic, Social and Cultural Rights in the Report of the National Human Rights Consultation (July 3, 2010). University of New South Wales Law Journal, Vol. 33, No. 1, pp. 193-238, 2010; UNSW Law Research Paper No. 2010-26. Available at SSRN: https://ssrn.com/abstract=1634445

Andrew C. Byrnes (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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