"Economic, social and cultural rights in Australia
- the roles of HREOC and the corporate sector"

Panel presentation by Dr Sev Ozdowski OAM
Australian Human Rights Commissioner to the Asia Pacific Forum meeting
Hong Kong, Wednesday 11 July 2001


Australia and ICESCR

Australia ratified the International Covenant on Economic, Social and Cultural Rights on Human Rights Day (10 December) 1975.

Although the first Human Rights Commission was established by federal legislation in 1981, ICESCR was not added to its mandate (unlike the ICCPR). The omission was repeated when the new (current) Commission was established in 1986.

ICESCR has never been incorporated into Australian domestic law - that is, it cannot be invoked in any law suit. In its most recent explanation of this to the Committee on Economic, Social and Cultural Rights, Australia's delegation implied that the Covenant rights are already protected by law in various forms: the common law, legislation and subordinate legislation from the federal Parliament and any of the six state or the three territory parliaments which have a form of self-government. [1]

Australia and economic, social and cultural rights

Australia has a strong history of respect for economic rights which is at odds with the attitude to full incorporation of ICESCR.

1. Labour rights

Economic rights for adult European males were strongly supported in the early years of the new federal Parliament with the introduction of the compulsory conciliation and arbitration system in 1904. This system is essentially unique to Australia and New Zealand.

Until the 1990s our labour law was dominated by industrial awards which progressively established significant protections for employees regardless of the size and capacity of the employer. The Australian industrial award prevailed over the common law contract of employment and all private arrangements which might have been entered into between employer and employee. As parties to awards, Australian unions constituted very significant players in national labour and industry policy.

The Conciliation and Arbitration Court's first major judgment - Harvester in 1907 [2] - established the minimum - or basic - wage as a worker's right and introduced the national wage fixing system which prevailed in Australia for so many decades.

Women's minimum wage was set at a proportion of that for men (initially 54%) until the Equal Pay Case of 1972 [3] while Aboriginal workers were excluded from the process until 1966 when Aboriginal stockmen were granted equal wages to non-Aboriginal stockmen.[4] This shows that Australia has traditionally done less well in ensuring equality of rights for all - of course we are not alone in that regard.

The industrial award system with its minimum standards has been somewhat diluted during the 1990s to increase employers' flexibility and competitiveness. At the same time some of the most significant ILO minimum standards conventions were scheduled to federal labour law. [5]

During this same period substantial efforts to reduce unemployment and create jobs have been rewarded. In September 2000 the number of Australians in work was almost one million more than in September 1995. [6] The number unemployed had fallen by almost 140,000 people - 18%. [7] The number of people looking for full-time work was down by 26%. The number of young people (15-19 year olds) looking for full-time work was down by 30%.

2. Social welfare - the safety net

Australia's federal constitution (1900) gave the Commonwealth Parliament power to make laws introducing invalid and age pensions which it did in 1908 with a non-contributory scheme based on need (ie means-tested). [8] A maternity allowance was introduced nationally in 1912. When the Commonwealth won comprehensive taxation powers in 1942 it began a progressive expansion of social welfare provisions featuring the introduction of unemployment and sickness benefits in 1944 [9] and now providing a minimum income safety net for the vast majority of Australians in need.

3. Universal primary and secondary education

Primary education has been compulsory and (almost) universally provided in Australia since the final quarter or so of the 1800s. [10]

School attendance is now compulsory throughout Australia between the ages of 6 and 15 years (16 years in Tasmania). Most children start primary school at about five years of age. Most States and Territories offer 13 years of schooling, including a year of pre-school; Queensland and Western Australia provide 12. The final two years of schooling (Years 11 and 12) are non-compulsory. Concerted efforts to increase school retention to the end of Year 12 have been successful: in 1975 only 34% completed their schooling; in 1998 the figure was 72%. [11]

Each of the States and Territories operates a public education system (in competition with a significantly smaller private system). Government schools educate about 75% of primary students and 68% of secondary students. [12] Between 1974 and 1987 tertiary education was free of charge to students qualifying for admission. [13]

4. Universal health care

Beginning with the Pharmaceutical Benefits Scheme introduced federally in 1944, Australia has developed a comprehensive public health system. [14] All Australians now enjoy basic health care (with substantial incentives to take out private insurance as a top-up). Pensioners have some additional entitlements.

5. Multiculturalism

Australia finally officially abolished the infamous White Australia Policy in the early 1970s, abandoned the formal policy of assimilation which was rigorously imposed on Aboriginal people and migrants of non Anglo-Celtic background and now has a non-discriminatory immigration policy. Today, almost one in four of Australia's 19 million people were born overseas; contemporary immigrants arrive from almost 150 source countries.

Multiculturalism is national policy with wide community acceptance. The New Agenda for Multicultural Australia was tabled in Parliament on 9 December 1999. It contains a framework which aims at making multiculturalism relevant to all Australians, ensuring that the social, cultural, and economic benefits of our diversity are fully maximised in the national interest, and encouraging harmonious relationships between people or organisations of different cultural backgrounds.

Australian multiculturalism recognises and celebrates our cultural diversity. It accepts and respects the right of all Australians to express and share their individual cultural heritage within an overriding commitment to Australia and the basic structures and values of Australian democracy. It also refers specifically to the strategies, policies and programs that are designed to:

  • make our administrative, social and economic infrastructure more responsive to the rights, obligations and needs of our culturally diverse population;
  • promote social harmony among the different cultural groups in our society; and
  • optimise the benefits of our cultural diversity for all Australians. [15]

Corporates and economic, social and cultural rights internationally

Australia, together with the other 29 members of the OECD and some non-member states, adopted 'Guidelines for Multinational Enterprises' in June 2000. The Guidelines establish voluntary principles and standards with the aims of ensuring that multinationals operate in harmony with government policies, strengthening mutual confidence between them and the societies in which they operate, helping to improve the foreign investment climate and enhancing the contribution of multinationals to sustainable development (from preface).

The Guidelines call on multinationals to respect the human rights of all affected by their operations. More specifically they should respect employees' right to be represented by trade unions, contribute to the effective abolition of child labour, contribute to the elimination of all forms of forced or compulsory labour and refrain from employment related discrimination. [16] To support and promote the Guidelines, the OECD has established a committee on International Investment and Multinational Enterprises.

At about the same time as the OECD initiative was launched the UN launched its own Global Compact to promote social responsibility among global corporations. [17] Once again it is voluntary. It sets out 9 principles drawn from the Universal Declaration of Human Rights, the ILO Fundamental Principles on Rights and Work and the Rio Principles on Environment and Development. Acceding companies are asked to issue a statement of support for the Compact and provide examples of progress made or lessons learned from implementing the principles in their business operations. The 9 principles are:

(1) Support and respect the protection of international human rights within their sphere of influence.
(2) Make sure their own corporations are not complicit in human rights abuses.
(3) Uphold freedom of association and the effective recognition of the right to collective bargaining.
(4) Uphold the elimination of all forms of forced and compulsory labour.
(5) Uphold the effective abolition of child labour.
(6) Uphold the elimination of discrimination in respect of employment and occupation.
(7) Support a precautionary approach to environmental challenges.
(8) Undertake initiatives to promote greater environmental responsibility.
(9) Encourage the development and diffusion of environmentally friendly technologies.

Australian corporates and economic, social and cultural rights

Australian businesses are bound - as employers and as service-providers - by anti-discrimination legislation in all jurisdictions. They are also bound by affirmative action for women legislation federally. Equal opportunity in employment, therefore, has been a natural area of focus.

Attention to broader human rights issues - where these are not incorporated in domestic legal obligations - has naturally been slow to develop. Interestingly, the mining sector seems to be leading the way both internationally and within Australia. The leading Australian companies now routinely

  • consult the local community on extraction and recuperation plan
  • engage community relations personnel
  • undertake comprehensive environmental recovery and
  • negotiate in good faith with native title claimants.

Just two examples of good practice are described below.

Rio Tinto is one multinational with large operations in Australia which has been active on human rights on both the international and domestic scenes in more recent years. For example, Rio Tinto is one of the 10 companies constituting the Mining and Minerals Working Group of the World Business Council for Sustainable Development. These 10 companies have developed and are promoting the Global Mining Initiative. [18]

Within Australia Rio Tinto and its subsidiaries have initiated several projects working in partnerships with local communities in which they operates to advance economic, social and cultural rights. One in the Upper Hunter coal extraction region of NSW is the Coal and Allied Community Trust established in 1999 following community consultations. The company's commitment is for project funding up to $3million over 3 years to "facilitate long term social, economic and educative programs that are driven by community leadership and involvement". [19] One successful project proposal in 200 was 'Skills for Success'. The project targets students at risk of leaving school early (up to 50% in the region) and developed an alternative core school program tailor-made to suit each student. It provides remedial programs, academic support and high level vocational or work experience courses to assist students to deal with their social issues, cope with mainstream education and, ultimately, make a successful transition into the workforce.

Comalco is another mining company working actively in partnership with the surrounding community to ensure its operations meet their expectations. In March 2001 Comalco and the Cape York [Aboriginal] Land Council signed a Co-existence Agreement together with the Queensland Government. Some of the many significant aspects of this agreement include:

  • Support for native title claims.
  • Return of mining lease areas no longer required to traditional owners.
  • Payment of a minimum $2,300,000 each year to the Western Cape Communities Trust for projects benefiting traditional owner groups and the Western Cape Communities.
  • $½million annually to be spent by Comalco on employment, training and youth education programs for local Indigenous people.
  • Cultural heritage surveys and site protection plans as well as cultural awareness training for all Comalco staff and major contractors.

The role of HREOC

As noted above, HREOC has no jurisdiction with respect to ICESCR and cannot, therefore, entertain complaints that the Commonwealth has violated economic, social or cultural rights as set out in that Covenant.

HREOC does have responsibility for the UN Convention on the Rights of the Child, however, which mirrors many of the ICESCR rights. While very few complaints are received from or on behalf of Australian children about these rights, the Commission's policy and public education activities have not ignored them.

Following national consultations in regional areas in 1998 - known as Bush Talks [20] - the Commission undertook three projects on children's economic and social rights in 1999 and 2000. The focus of each of these was the double disadvantage experienced by children and young people in rural areas.

The National Inquiry into Rural and Remote Education was motivated by concerns about the quality of school education in rural and especially remote areas and the fact that fewer rural students finish their formal schooling and go on to tertiary education. The inquiry concluded in 2000 with 73 recommendations for implementation by public and private education systems across the country. [21]

A project on rural health initiatives highlights three local projects which have identified specific local health needs among children and youth and addressed them. [22]

(1) In the Murraylands region of South Australia, CHAMPS offers informal support to local young people aged 13 to 18 by holding youth forums twice each school term informally discussing youth issues in the area. The goal of the forums is to improve the health and well being of young people in the region by enabling them to have a voice in shaping the way in which services are provided to youth.

(2) In Dubbo in NSW, the annual Rural Schools for Health Careers Workshop is one of the core activities of the Remote and Rural Health Training Unit at Dubbo Hospital. It encourages Year 10 students from north-west New South Wales to consider a career in health in the hope that a proportion of those who do so will return to the region to practice once qualified.

(3) Desert Acrobats was set up by the Kimberley Aboriginal Medical Services Council based in Broome in north-west WA. With the aim of enhancing the emotional, social and spiritual well-being of young Indigenous people in the Kimberley, a teaching team travels the region teaching gymnastics, contemporary Aboriginal dance, theatre- sports and performance skills.

Outlink: the rural lesbian, gay and bisexual youth network was established by the Commission with funding support from the Australian Youth Foundation in 1999 in recognition of the isolation, discrimination and alienation faced by gay and lesbian young people in rural areas. This discrimination is known to contribute to very high rates of rural youth suicide in Australia. [23] The Network has been successful to some extent in attracting corporate funding for its projects, most notably for a training manual specifically designed for use in rural areas.


Conclusion

The Australian ethos and the values underpinning our polity are very supportive of economic, social and cultural rights. I have not detailed here the ways in which Australian practice falls short of full implementation because that has not been my objective. [24] My point here is that what systemic disadvantage remains is recognised as requiring an effective resolution: that is, we recognise the need for full implementation for all of their economic, social and cultural rights and expend effort and resources to find solutions.

The ideals of ICESCR sit well and comfortably within widely agreed Australian values.


Endnotes

1. Australia's third periodic report, 23 July 1998, paragraph 7: UN Doc. E/1994/104/Add.22.

2. Ex parte H V McKay (1907) 2 CAR 1.

3. In the Equal Pay Case of 1969 - (1969) 127 CAR 1142 - the principle adopted was 'equal pay for equal work'. This was readily circumvented by labelling female workers differently - eg women were called seamstresses whereas men were called tailors. The principle in 1972 was 'equal pay for work of equal value': (1972) 147 CAR 172.

4. Re Cattle Industry (Northern Territory) Award (1966) 113 CAR 651.

5. ILO 100 on equal pay, ILO 111 on employment discrimination, ILO 156 on family responsibilities and ILO 158 on unfair dismissal are scheduled to the Workplace Relations Act 1996 (Cth).

6. ABS data: 8,200,000 in September 1995; 9,133,200 in September 2000: an increase of more than 11%.

7. ABS data: 751,900 in June 1995; 613,200 in September 2000.

8. Section 51(xxiii) which grounded the Invalid and Old Age Pension Act 1908 (Cth). According to Kirkwood, the NSW invalid pension introduced in 1907 was the first in the world to be non-contributory: John Kirkwood, Social Security Law & Policy, Law Book Co, 1986, page 2.

9. Constitutional validity was assured with the introduction of explicit Commonwealth legislative powers in a referendum in 1946: new paragraph (xxiiiA) added to Section 51.

10. New South Wales 1866, Western Australia 1871, Victoria 1872, South Australia and Queensland 1875, Tasmania 1885.

11. Albeit down from a high of 77% in 1972: Brian Graetz & Ian McAllister, Dimensions of Australian Society, Macmillan, Melbourne, 2nd ed, 1994, page 174.

12. Id, page 170.

13. Id, page 172. Outside that period, various forms of financial assistance have been offered.

14. Note that dental and optical treatments are not covered.

15. From Department of Immigration and Multicultural Affairs Fact Sheet No. 5: http://www.immi.gov.au/facts/05policy.htm

16. Covered in Part IV on 'Employment and Industrial Relations'. Other parts deal with disclosure, environment, combating bribery, consumer interests, science and technology, competition and taxation.

17. See http://www.unglobalcompact.org

18. See http://www.globalmining.com/home/gm_frame.asp

19. 2000 Report, page 2.

20. See http://www.humanrights.gov.au/human_rights/rural_australians/bushtalks/index.html

21. HREOC, Recommendations: National Inquiry into Rural and Remote Education, 2000: http://www.humanrights.gov.au/human_rights/rural_education/index.html#5 .

22. See http://www.humanrights.gov.au/human_rights/rural_health/index.html

23. See http://outlink.trump.net.au/

24. Indigenous communities most obviously and especially are largely still unable to participate fully and to enjoy their fair share of the nation's wealth. In 2000-2001 federal expenditure on Indigenous programs reportedly totalled $2.3billion: Acting Federal Race Discrimination Commissioner, Face the Facts (HREOC, 2001) page 28.

Last updated 1 December 2001

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