Bailey, Peter --- "The Right to an Adequate Standard of Living: New Issues For Australian Law" [1997] AUJlHRights 14; (1997) 4(1) Australian Journal of Human Rights 25
[1] MA (Oxf), LLM (Melb), Visiting Fellow in the Faculty of Law, Australian National University.
[2] A careful examination of the growing reliance of individuals on the welfare system in Australia, and of the effects of policies using the social welfare and tax systems, and needs-based or universal systems, to provide benefits, is contained in Baume PE "Towards a liberal welfare policy" (1995) 54 Australian Journal of Public Administration at 196.
[3] The International Covenant on Civil and Political Rights, which entered into force in March 1976, was not ratified by Australia until August 1980.
[4] For a further discussion of this aspect, see Bailey P Human Rights: Australia in an International Context, Butterworths, Sydney, 1990, pp 319 and 250-1. Note also the comment in Devereux A "Australia and the right to an adequate standard of living" (1991) 20 Federal Law Review 223 at 230: "civil and political rights [such as the right to life] may seem rather empty without regard to the economic and social rights [such as the right to an adequate standard of living] which underpin them".
[5] This is not to say that there is a hierarchy of rights. On this point see ibid, and Meron T "On a hierarchy of international human rights" (1986) 80 AJIL 1.
[6] The right as formulated in Article 25 of the Universal Declaration of Human Rights 1948, from which the two Covenants were largely developed, gave more emphasis to the incidents of the general right -- "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
[7] There was discussion of what standard should be specified, and in the end the term "adequate" was preferred to "decent". Craven MCR, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Clarendon, Oxford, 1995) pp 291-3. The book is an excellent survey of the history and contents of the Covenant and of the developing mechanisms for its implementation and, at least for the present, must be regarded as the primary reference for issues relating to the Covenant.
[8] The meeting in Copenhagen in early 1995 of the World Summit for Social Development, with its emphasis (commitment 2) on "the goal of eradicating poverty in the world through decisive national actions and international cooperation, as an ethical, social, political and economic imperative of humankind" is a current endorsement of the basic objective of the right to an adequate standard of living. See Disney J After the Summit: Papers on the Outcomes and Aftermath of the World Summit for Social Development (Center for International and Public Law, Australian National University, Canberra, 1995).
[9] Bailey, fn 4 above, 2-5 and references there cited.
[10] International Covenant on Economic, Social and Cultural Rights, Art 9.
[11] International Covenant on Economic, Social and Cultural Rights, Art 12.
[12] In this sense, the right to an adequate standard of living could be regarded as an aspect of either a duty in the state to provide social protection for those within its jurisdiction, or possibly as one aspect of a right to social protection, which might well cover a broad range of CP and ESC rights. The general argument against ESC rights as full rights is comprehensively put in Vierdag E, "The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights" (1978) 9 Netherlands Yearbook of International Law 69.
[13] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[14] Differing perceptions of human rights within the Asian region are discussed in Abdullah F Bailey P et al "Human rights" in Milner A(ed) Comparing Cultures (OUP, 1996) Ch 2.
[15] However, the Chinese position is more complex than is often recognised. They have a view that CP rights are, to the extent that they are important, subsumed in ESC rights, eg right to life in right to an adequate standard of living. See Kent A Between Freedom and Subsistence: China and Human Rights (Oxford, 1993) pp 53-67 (downgrading CP rights), 18, 30-1 (subsuming CP in ESC rights).
[16] It often fails to be recognised that, to the extent that anti-discrimination law enforces employment-related rights, it is protecting an economic right -- the right to work. Complaints relating to employment form roughly two thirds of all discrimination complaints.
[17] This argument is put forward in Addo M "Justiciability re-examined" in Beddard R and Hill DM Economic, Social and Cultural Rights: Progress and Achievement (Macmillan, 1992).
[18] The enforcement of ESC rights is the subject of an illuminating comment by the ICESCR Committee on Economic, Social and Cultural Rights in its General Comment No. 3, UN Doc E/23/Annex III. The Committee discusses the differences between the enforcement provisions in Articles 2 of the ICCPR ("immediate implementation") and the ICESCR ("progressive implementation") and suggests that there is no material difference despite the differing description of the enforcement obligation.
[19] One of the earliest expositions is by Van Hoof G "The legal nature of economic, social and cultural rights: a rebuttal of some traditional views" in Alston P and Tomasevski K (eds), The Right to Food, International Studies in Human Rights (Martinus Nijhoff, The Hague, 1984) p 97, and reproduced in Steiner HJ and Alston P International Human Rights in Context: Law, Politics and Morals (Clarendon, Oxford, 1996) pp 283-5.
[20] The International Bill of Rights is composed of the Universal Declaration of Human Rights,
the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights with its two Optional Protocols.
[21] The common law position has now been included in legislation in all jurisdictions: Sale of Goods Act 1954 (ACT) s 7; Sale of Goods Act 1972 (NT) s 7; Sale of Goods Act 1923 (NSW) and Minors (Property and Contracts) Act 1970 (NSW) (provides that where a minor participates in a civil act and the participation is for the minor's benefit, the civil act is presumptively binding); Sale of Goods Act 1896 (Qld) s 5; Sale of Goods Act 1895 s 2 (SA); Sale of Goods Act 1896 (Tas) s 7; Goods Act 1958 (Vic) s 7; Sale of Goods Act 1895 (WA) s 2. In the legislation, "necessaries" means goods suitable to the condition and life of the infant or other person and to his or her actual condition at the time of sale or delivery. Further, the rights of a lender to a minor may be subrogated to those of a creditor, to the extent that the proceeds of the loan are used to pay for necessaries: The Laws of Australia Equity Vol 15 [22].
[22] For an account of both bankruptcy and debtor law, see Australian Law Reform Commission, Debt Recovery and Insolvency, Report No. 36 (AGPS, Canberra, 1987) esp at pp 52-3, 142-3.
[23] A general and up to date description of the new system, as thoroughly revised in 1993, is contained in Carney T and Hanks P, Social Security in Australia (Oxford, 1994).
[24] Social Security Act 1991 (Cth), Long Title.
[25] Lambe v Director-General of Social Services [1981] FCA 171; (1981) 38 ALR 405 at 411 (Fed Ct FC). For an assessment of the equity effects of targeting achieved through the categorical system, see Mitchell D, Harding M and Gruen F "Targeting welfare" (1990) 70 The Economic Record, Economic Society of Australia, 315. It should be noted that the Commonwealth Government, through the Budget Standards Project, is developing two indicative budget standards for Australian welfare purpose, a modest and a low cost standard. The Budget Standards Research Unit is expected to report about the end of 1997.
[26] Social Security Act 1991 (Cth) s 729.
[27] Social Security Act 1991 (Cth) s 729 (2)(e). Emphasis supplied.
[28] Raper M (ed) The Independent Social Security Handbook, 2nd ed. (Welfare Rights Centre, Pluto Press, 1994) 441.
28a See Re Kandasamy and SDSS (1987) 37 SSR 470.
28b Re Albrecht and Director-General of Social Security (1983) 16 SSR 160.
28c Re Vavaris and Director-General of Social Security (1983) 17 SSR 173.
[29] Green v Daniels (1978) 51 ALJR 463 at 469 (HC per Stephen J, sitting alone).
[30] Social Security Act 1991 (Cth) Pt 6.1, esp s 1240.
[31] Ibid, s 1247.32 ibid, s 1239.
[33] Ibid, s 1241.
[34] Ibid, s 1244.
[35] Ibid, s 1247.
[36] Ibid, s 1246. An appeal lies from the SSAT to the Administrative Appeals Tribunal (AAT): Social Security Act Pt 6. The AAT exercises its ordinary powers of review and, if appropriate, may make a fresh decision under the Act (ss 1287-1294).
[37] For a discussion of the implications of fixed legal rules as against the use of administrative discretion, see Carney T and Hanks P Social Security in Australia (Oxford, 1994) pp 257-264.
[38] Lambe v Director-General of Social Services [1981] FCA 171; (1981) 38 ALR 405 at 409-10.
[39] Superannuation Guarantee (Administration) Act 1992 (Cth) and Superannuation Legislation Amendment Act (No. 1) 1995 (Cth) s 4.
[40] Child Support (Registration and Collection) Act 1988 (Cth).
[41] Childcare Rebate Act 1993 (Cth) s 28.
[42] Student Assistance Act 1973 (Cth) and Austudy Regulations.
[43] Child Support (Registration and Collection) Act 1988 (Cth) s 3(1)(b).
[47] Child Support (Assessment) Act 1989 (Cth) Pt 5.
[49] See text surrounding fn 13.
[50] Income Tax Assessment Act 1936 (Cth) s 78.
[51] Income Tax Assessment Act 1936 (Cth) s 78 Table 4.1.3.
[52] Sales Tax Assessment Act 1992 (Cth) ss 16, 24, Sales Tax (Exemptions and Classifications) Act 1992 ss 4, 14, Scheds 1 Ch 7, 2 items 11, 12, 13, 14.
[53] Customs Tariff Act 1987 (Cth) ss 6, 13, 22, 23, Sched 3 Chs 1-21.
[54] Most Australians who travel overseas, and many visitors to Australia, comment on the relative cheapness and quality of the food available in Australia, compared with what is available elsewhere. Although not readily quantifiable, this adds weight to the point that the exemption of foodstuffs from taxation is a significant factor in supporting decent living conditions.
[55] See text surrounding fn s 21, 16, above.
[56] Sales Tax (Exemptions and Classifications) Act 1992 (Cth) s 14, Schedule 1 Ch 8.
[57] Income Tax Assessment Act (Cth) 1936 s 51.
[58] FCT v Forsyth (1979) 10 ATR 179 at 182; 79 ATC 450 at 458.
[59] See fn 22 above.
[60] Rules of the Supreme Court of Queensland, Order 13 r 1.
[61] Housing Assistance Act 1989 (Cth) s 7.
[62] Ibid, ss 8, 9. Grants under these headings have been continued.
[63] Ibid, ss 14 (research etc), 4, 5 (agreements) and 15 (matching -- the formula for matching is contained in cl 13 of the scheduled agreement). The matching amount was some $300 million in the first year.
[64] Ibid, cl 6.
[65] Ibid, Sched 1 -- Form of Housing Agreement, Recital (D), paras (a), (b).
[66] Ibid, Sched 1 -- Form of Housing Agreement, Pt XII.
[67] Ibid, Schedule 1 -- Form of Housing Agreement, Recital (D) (a) and Part XI.
[68] Through the complex arrangements under the National Health Act 1953 (Cth) and the Nursing Homes Assistance Act 1974 (Cth), there is now a wide range of people who can enter nursing homes which receive a benefit from the Commonwealth that is paid according to the standard of the nursing home and the time the patient occupies a bed.
[69] Supported Accommodation Assistance Act 1985 (Cth), now superseded by the Supported Accommodation Assistance Act 1989.
[70] Supported Accommodation Assistance Act 1989 (Cth) Sched 1 -- Form of Agreement, Recital C.
[71] Ibid, para (i).
[72] Ibid, para (iv).
[73] Stamp duty concessions are available in the ACT (First Home Buyers Scheme Revenue Circular No 40 of ACT Revenue Office, 12 May 1993); in NSW (Stamp Duties Act 1920 s 66A,
and see also ss 45, Schedule 2A and 45AA, Schedule 2B); in Queensland (Stamp Duty Act 1894); in SA (Stamp Duty Act s 71C); in Tasmania (Stamp Duties Act 1931 s 70 f); in Victoria (Stamps Act ss 71A and 71B); and in Western Australia (Stamp Duties Act s 75AE). There are no concessions in the Northern Territory.
[74] Income Tax Assessment Act 1936 (Cth) s 1160ZZQ.
[75] Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 16, 18.
[77] See in particular the Defence Service Homes Act 1913 (Cth) and the Defence Force (Home Loans Assistance) Act 1991 (Cth).
[78] Covering only sex discrimination in Tasmania.
[79] For example, Racial Discrimination Act 1975 (Cth) s 12, Sex Discrimination Act 1984 (Cth) s 23, Disability Discrimination Act 1992 (Cth) s 5.
[80] For a perceptive, and also critical, assessment of the rights-conferring aspects of the arrangements, see Devereux A, fn 4 above.
[81] The relationship between substantive and process rights is complex, and is not discussed in this paper. In the United States, the inclusion of a right to due process in the 5th and 14th amendments has led to the development of "substantive" as well as "formal" due process rights.
[82] It is interesting that the provisions in the Social Security Act 1991 (Cth) referred to above that establish mechanisms for substantive review of a decision by an internal process, and that also provide for external review and decision by a special tribunal with decision-making powers, or by a court where issues of legality are involved, are in effect a combination of the two forms of review -- substantive and process. But they are not made against a substantive right: they relate to eligibility to receive a benefit.
[83] Freedom of Information Act 1982 (Cth).
[84] Ibid, s 3 (emphases added).
[85] Another method of stating rights is used in the Disability Services Act 1986 (Cth). There, the Minister is required to table guidelines containing a statement of the principles and objectives to be furthered. Unless disapproved by either House within 15 sitting days of tabling, the guidelines are to take effect from the end of that time (s 5). The guidelines contain a charter of rights, but are required to have regard to "the limited resources available" and to "the need to consider equity and merit in accessing those resources" (s 3(2)).
[86] The rights were based on those included in the International Covenant on Civil and Political Rights.
[87] Australian Bill of Rights Bill 1985 cl 11.
[88] Ibid, cl 12(2).
[89] In this respect, the somewhat limited use of s 15AA of the Acts Interpretation Act (Cth) 1901 need not necessarily be a precedent, and the interpretation yielding to the decision of the Supreme Court of Canada in R v Drybones (1970) SCR 282 may be of more suasion.
[90] The comment by Mason CJ in Australian Capital Television v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 about the hand of the Executive being seen as lying behind, and determining, the way the Parliament had amended the Broadcasting legislation could be applicable a fortiori to the privatised services of the state. For a comment by the Commonwealth Ombudsman on the dangers, see Smith P "Form vs substance" in Cole K (ed) Administrative Law and Public Administration: Form vs Substance (AIAL, 1996) and articles by Tang A, Hogan M and Rogers G, and O'Brien D, in Pearson L (ed) Administrative Law: Setting the Pace or Being Left Behind? (AIAL 1997) .
[91] The freedom of political communication cases are particularly relevant: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 and Nationwide News Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 now affirmed and applied in Langer v Australian Broadcasting Corporation [1997] HCA 25; (1997) 71 ALJR 818. See also, in the area of the protection of private property, Plenty v Dillon [1991] HCA 5; (1990) 171 CLR 635.
[92] McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575
[93] Ibid, 579.
[94] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[95] ICESCR Art 2.1.
[96] See text at fn 87 above.
[97] It will be recalled that the criterion for eligibility for the Special Benefit is that a person is "unable to earn a sufficient livelihood": Social Security Act 1991 s 729(2)(e). See text at fn 27 above.
[98] There is already an emphasis on people in rental housing who need crisis accommodation, which the proposed right might well cover -- see text at fns 64, 69 above.