Castan Centre for Human Rights Law

"Resisting the Erosion of Economic and Social Rights:
What Role Can Legal Discourse Play?"

Dianne Otto

The legal enforceability of economic and social rights, in areas like health, education, social security, food, clothing and housing, is an idea that Australian legal and political cultures have resisted. Rather than directly implementing such rights, making them administratively or judicially enforceable, the enjoyment of economic and social rights in Australia relies predominantly on the indirect effects of legislation and government policies and programs. This approach, it is argued, is consistent with the institution of responsible government in a democracy, which provides a superior guarantee that individual rights and freedoms will be protected. 1 The Australian lack of enthusiasm for rights discourse is further reflected in popular culture, where those who demand 'rights' are often considered to be 'troublemakers'.2 This paper will examine the arguments of the troublemakers in the Australian context, asking whether they misunderstand the way the system works or, alternatively, whether rights discourse offers a better way of ensuring economic and social well-being.

Amongst the 'troublemakers' is the United Nations (UN) Committee on Economic, Social and Cultural Rights, the committee of experts established to monitor the implementation of the International Covenant on Economic, Social and Cultural Rights (the Covenant)3, which entered into force for Australia in 1976.4 The Covenant creates an obligation, under international law, for Australia to fully implement the rights it catalogues, which include 'the right of everyone to an adequate standard of living ... including adequate food, clothing and housing'.5 International treaties are not self-executing in Australia6, which means they must be incorporated into Australian law by legislation before they can be directly claimed as rights in the domestic legal system. The present Australian Government maintains, as has its predecessors, that '[b]efore Australia signs, ratifies or otherwise becomes bound by a treaty, the Government satisfies itself that any legislation necessary to implement the treaty is in place'.7 However, the Committee on Economic, Social and Cultural Rights has yet to be convinced of this and, in response to Australia's last report on its implementation of the Covenant in the period covering 1990-19978, has strongly recommended that the Government 'incorporate the Covenant in its legislation, in order to ensure the applicability of the Covenant in domestic courts'.9 So, to put it bluntly, there is currently a stand-off between the Government and the Committee over the merits of the two approaches to implementation.10

While I do not want to suggest that making the Covenant fully applicable in Australian law would be a panacea for all the social and economic problems faced by Australia's most disadvantaged groups, I do want to make the point that legal rights are a powerful tool that can provide some level of protection against the political expediencies and ideological vagaries of responsible government. As the African-American civil rights movement found, 'new life' can be breathed into rights discourse if it is claimed by 'the people' as their own11, rather than left to the rarefied and privileged world of legalistic reasoning and precedent. At the same time, many criticisms of this approach are also well-founded. It must be acknowledged that legal rights are malleable, and therefore provide uncertain protection.12 Legal rights also legalise more aspects of our social and political lives and increase the scope of governmental surveillance and regulation.13

At the same time, it is also clear that there is room for substantial improvement in the non-judicial means of supervising the implementation of the Covenant in a system that considers itself to be an exemplar of indirect implementation. There are many non-judicial mechanisms that Australian governments could establish that would improve their accountability to the electorate and make their human rights record more transparent. Their options include: setting benchmarks against which their performance in delivering social and economic goods can be measured14, establishing human rights policy units in all government departments; creating mechanisms for improved scrutiny of proposed legislation to ensure its consistency with human rights obligations; expanding the powers of the ombudsman to include complaints about violations of human rights; and improving governmental responsiveness to reports and advice from the Human Rights and Equal Opportunity Commission (HREOC). As an alternative to the direct incorporation of the Covenant into domestic law, such measures are likely to be more palatable to 'the people' of the rights-resistant cultures of contemporary Australia. There is also much to recommend such measures in other ways, not least that they will help to build a political awareness of rights and thus improve the capacity of the institutions of responsible government to indeed protect human rights. On the other hand, political implementation is unlikely to provide individual remedies for people whose rights have been violated and falls short of actually binding the state to fulfil its human rights obligations, even where there are egregious violations.

It is my view that these two approaches (judicial and political) to the implementation of economic and social rights are not mutually exclusive, as has been assumed by much of the debate about their relative merits, but that they can and must be understood as complementary. To illustrate the importance of linking governmental economic and policy decision-making with economic and social rights, and the role that both legal and political discourses can play, let me present you with a hypothetical. Imagine that the Federal Government introduces a new social security policy that reduces income support entitlements to one third of the minimum livable rate for everyone between 18 and 30 who is employable, but not engaged in a government-sponsored employment or training program. Participation in one of the programs would allow participants to receive an increase in their social assistance up to, and sometimes exceeding, the rate received by recipients over 30. Imagine further that the government programs have not had the anticipated levels of participation for reasons which are somewhat unclear, but include the narrow eligibility criteria of the programs. The result is that a majority of 18-30 year olds are in receipt of benefits at the lower rate.

Now imagine what this means for a young woman, let's call her Louise, who is in her 20s, unemployed, and ineligible for participation in an employment program. She finds herself no longer able to pay the rent and becomes periodically homeless, staying sometimes with friends, sometimes in shelters for homeless people, and sometimes in substandard cheap rental housing. She often relies on hand-outs for food and, at one point, a man from whom she is receiving food drives her home and then attempts to rape her. When she rents a room in a boarding house, she suffers sexual harassment from the predominantly male boarders. Subsequently, she feels compelled to live intimately with a man for whom she had no affection, in exchange for a roof over her head and basic necessities. She also has no choice but to engage in sex work in order to afford clothes to wear to job interviews. In the meantime, her material poverty is affecting her self-confidence and reducing her ability to apply for jobs or to participate in one of the employment assistance programs if she were to become eligible. At one point, Louise is so overwhelmed that she attempts suicide. There is evidence that her story is not an isolated example, but reflects the experiences of humiliation, stress and extreme poverty that many other young people suffer as a result of the policy.

My question is whether, in a relatively affluent country like Australia, it is reasonable or justifiable that a democratically elected legislature has the freedom to adopt such inhumane and life threatening 'incentives' to 'encourage' people into employment assistance programs, or whether it is appropriate to have some enforceable human rights standards that limit the power of governments to adopt policies that threaten basic human dignity and bodily integrity.

The hypothetical I have presented to you is in fact a true case15, which graphically illustrates the shortcomings of relying on the political process alone to protect human rights. The young woman I have described is Louise Gosselin, who lives in Quebec, a province of Canada.16 During the 1980s, the democratically elected Government of Quebec introduced a new social assistance policy like the one I have outlined.17 Louise has challenged the legislation in a class action under the Canadian Charter of Rights and Freedoms and the Quebec Charte des Droits et Libertes de la Parsonne. She is arguing that the right to 'security of person' in section 7 of the Canadian Charter18, and the right to equality in section 1519, impose positive legal obligations on Canadian governments to ensure an adequate level of income for Canadians who are unable to provide for themselves. She is also arguing a breach of section 45 of the Quebec Charter, which provides that everyone in need has a right to financial and social assistance that is susceptible of ensuring them an acceptable standard of living.20

The lower courts have had no trouble in finding that the social assistance available to Louise was not enough on which to survive.21 Roberts J of the Quebec Court of Appeal commented that the reduced rate also heightened the risk of serious physical and psychological problems for the young recipients, problems that were incompatible with an acceptable standard of living. Yet despite this, the lower courts have rejected Louise's claim, either on the grounds that they concern 'economic rights' that are not protected by the Canadian Charter or on the grounds that the courts are not institutionally competent or authorised to review government fiscal policy.

While a majority of the Quebec Court of Appeal found that the legislation discriminated on its face on the basis of age, and thus that it violated the equality guarantee of section 15, they ultimately held that the discrimination was 'justifiable in a free and democratic society', as permitted by section 1 of the Canadian Charter.22 Central to the finding that the measure was justified was the judicial acceptance of the Provincial Government's argument that the case involved questions of 'social policy' and the 'distribution of scarce resources'. As Canadian commentators Day and Brodsky point out, normally the burden of justifying a rights violation under the Canadian Charter is a heavy one, but once characterised as being about government spending priorities, the courts show a deferential attitude to government policy, and the burden of justification can be significantly reduced.23 As they say, this 'fits well with an image of rights as not principally concerned with redistributive matters' and 'has the effect of draining equality rights of their social and economic content'.24

Another argument of the Quebec Government, which the Court of Appeal also accepted, was that the right to security of the person under the Canadian Charter was a negative right, which obliged the government to refrain from actions that would violate the right, but did not oblige it to take positive measures to realise the right. This argument was accepted despite statements to the contrary by the Canadian Supreme Court that the Canadian Charter can be interpreted as protecting Covenant rights and that the equality provision is not limited to negative restraints on government action.25 The characterisation of civil and political rights as involving negative obligations, and economic, social and cultural rights as requiring positive state action, draws on a cartography of rights that has been firmly rejected by the UN Committee on Economic, Social and Cultural Rights26 and persuasively discredited by many legal theorists.27 The negative/positive dyad has been replaced with the understanding that all human rights have both negative and positive dimensions that are more aptly expressed as including the obligations to respect, protect and fulfil. It is disheartening, to say the least, to find the Quebec Court of Appeal adopting such outdated reasoning.28

Finally, even the explicit language of section 45 of the Quebec Charter, which guarantees to every person in need a right to financial assistance and social measures 'susceptible of ensuring such person an acceptable standard of living', was found by the majority to be limited to a guarantee of non-discrimination in access to the financial and social measures the government decides to provide.29 Therefore, depending on the outcome of an appeal to the Supreme Court of Canada, which was heard on 29 October 2001, the Gosselin case may unfortunately prove to be a prime example of the shortcomings of constitutional protection of human rights, in addition to being, as I have already observed, an example of the failure of the political process to protect human rights.

In 1998, when the Committee on Economic, Social and Cultural Rights considered the third periodic report of Canada on its progress in implementing the Covenant, it was adamant that the various punitive employment assistance programs that had been introduced by a number of provincial governments violated the Covenant. The Committee noted that at least six provinces, including Quebec, had adopted 'workfare' programs that either tie the receipt of social assistance to participation in compulsory employment schemes, or reduce the level of assistance when recipients assert their right to freely choose the type of work they wish to do.30 It made the following recommendation:
That the State Party [Canada] consider re-establishing a national programme with specific cash transfers for social assistance and social services that includes universal entitlements and national standards and lays down a legally enforceable right to adequate assistance for all persons in need, a right to freely chosen work, and right to appeal and a right to move freely from one job to another.31
The Committee also lambasted the Ontario Legislative Assembly for its adoption of legislation in 1998 that compounded the existing human rights violations further by denying to workfare participants the right to join a trade union, to bargain collectively and to strike.32

There are echoes of the Canadian policies in the Australian Government's restructuring of unemployment assistance during the 1990s, which has also included mandatory involvement in labour market programs and case management for social security beneficiaries.33 But, staying with the Gosselin example, let us consider what options someone in Louise's position would have if it were the Australian Government that had adopted the Quebec legislation.

In relation to legally enforceable rights, there are no constitutional guarantees, state or federal, that she could base a claim on and the High Court has previously decided, in a case that was also brought by a young woman, that social security legislation in Australia does not create legally enforceable rights, but rather bestows privileges or gratuities that the government is free to alter as it sees fit.34 The only cause of action that would be available to an Australian Louise under the social security legislation would be if the implementation of the benefits scheme was inconsistent with the legislative intent, but this is not such a case. A claim under anti-discrimination legislation is also not available, as 'age' and 'social status' (class) are not given protected status under federal anti-discrimination legislation. Although there are many gender-specific effects of the policy, as outlined by the Factum of the National Association of Women and the Law, an intervenor in the Gosselin case35, the gendered effects compound the discriminatory impact of the age/social status discrimination rather than creating a primary claim based on sex discrimination. In any event, social security laws are exempted from the application of the Sex Discrimination Act 1984 (Cth).

In the absence of other domestic legal options, the remaining (quasi) legal avenue is provided by the individual complaints mechanisms of the UN human rights treaty committees, which the Australian Government has recently been so critical of.36 As there is no individual complaints mechanism attached to the Covenant, and the Australia Government has refused to ratify the Optional Protocol that would enable the Committee on the Elimination of Discrimination Against Women to hear a complaint, the only option for an Australian Louise is to complain to the Human Rights Committee which monitors the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee has interpreted article 26 of the ICCPR37 as a substantive equality provision that protects equality in the enjoyment of all human rights, including those in the Covenant.38 It would, however, take several years for the communication to be considered by the Human Rights Committee due to its heavy workload. And even then, there is no guarantee that the Government would act on the views of the Committee, given its recent poor record in this regard.39

In light of Australian governments' preference for indirect methods of implementation, through the political process, it would be reasonable to expect that Louise would have available to her a panoply of more developed and responsive political mechanisms to address her rights claim. Foremost among them, so the argument goes, is the institution of responsible government, whereby the political process itself safeguards individual rights. Former Prime Minister Sir Robert Menzies outlined this process in 1967 as follows:
Should a Minister do something which is thought to violate fundamental human freedom he [sic] can be brought to account in Parliament. If his Government supports him, the Government may be attacked, and, if necessary defeated. And if that ... leads to a new General Election, the people will express their judgment at the polling booths. In short, responsible government is regarded by us as the ultimate guarantee of justice and individual rights.40
This reasoning, in the first instance, overlooks the fact that a majority of the legislature will be members of the same party as any offending Minister, and therefore the likelihood of government members breaking with party loyalty and not supporting one of its Ministers is, at best, remote. In the second instance, the reasoning ignores the fact that electoral disapproval relies on the effective exercise of political power by the group whose rights have been denied. In Louise's case, we are talking about poor, young, unemployed people, one of the most disadvantaged groups in Australian society, whose interests are unlikely to be the subject of an election campaign, let alone an electoral victory.

Foremost among the statutory mechanisms to which Louise could complain is, of course, the Human Rights and Equal Opportunity Commission (HREOC), which is charged with promoting respect for and observance of human rights in Australia.41 Among its responsibilities is the oversighting of Australia's obligations under seven international human rights instruments which are scheduled to the HREOC Act 1986 (Cth).42 While scheduling does not have the effect of incorporating the instruments into Australian law, it does define 'human rights' for the purposes of the Act and grants individuals the right to complain to HREOC about violations of the scheduled instruments. But, believe it or not, the Covenant is not among the scheduled instruments, which means that Covenant rights are effectively excluded from the mandate of HREOC. While this would not necessarily stop HREOC from providing advice to the Government on its obligations under the Covenant, it does seriously inhibit its ability to substantially influence government policy in the area of economic and social rights.

Under previous Australian governments, there were a number of other national machineries that would have played a role in the political discussion of social security policy and thus could have provided a channel for Louise's human rights to be considered and addressed. At the forefront were two mechanisms: the national women's policy coordination machinery, which included the Office of the Status of Women and women's policy units in many government departments43, and the Aboriginal and Torres Strait Islander Commission, which was established in 1989 'to ensure the maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them'. Aspects of both of these machineries have been dismantled or significantly dismembered by the present Australian government, drastically reducing their ability to contribute to policy development. Thus many of the political and bureaucratic mechanisms capable of providing some measure of accountability for human rights within a system of responsible government have been systematically taken apart, which provides further evidence of the inadequacy of relying solely on indirect (political) implementation of human rights.

In conclusion, my argument is that both systems of human rights protection - the judicial and the political - are failing in the present Australian context. Further, as illustrated by the Canadian example, neither system is a cure-all for economic and social disadvantage. Therefore, instead of conceptualising the two systems as mutually exclusive, my point is that both systems have important and complementary roles to play in resisting the erosions of economic and social rights. These erosions have become commonplace as a consequence of the most recent wave of economic globalisation and its supporting mantra of economic rationalities and efficiencies, and the shift to a minimalist regulatory state and its attendant reconfiguration of the relationship between the individual and the state. The political process is crucial to achieving effective and informed public participation in social policy formulation and economic decision-making that is consistent with Australia's international human rights obligations. At the same time, legal discourse can provide an essential check on the reasonableness or justifiability of governmental action in light of its effects on human well-being, and ensure that fundamental guarantees of human dignity are safeguarded. If both systems were working well in Australia, it would be appropriate for the Government to claim an exemplary human rights record internationally, as it does. But until then, the honoured calling of the 'troublemakers' needs to be celebrated, and their disturbances welcomed, because, far from misunderstanding the problem, they have clearly identified it.
* Dianne Otto is a Senior Lecturer in the Faculty of Law at the University of Melbourne. She teaches criminal law, international law and human rights law. The research for this paper was funded by the Australian Research Council. Thanks must go to my research assistant Annie Pettitt for her work and contributions.
1 Hilary Charlesworth, 'The Australian Reluctance About Rights' in Philip Alston (ed), Towards An Australian Bill of Rights (1994) 21, 22. Charlesworth identifies various other rationales for the Australian 'reluctance about rights' including deference to States' 'rights', fear of attributing too much power to an unelected and politicised judiciary, and an enduring commitment to utilitarianism.
2 In an interview with Gillian Meldrum and Kerry Potter who work for Disability Justice Advocacy, which provides advocacy for people with a disability in Victoria, it was observed that the 'culture' of those who provide disability services is one of low self-esteem. Service providers think of themselves as 'bum-wipers' and are generally resistant to developing their skills and undertaking further training. In this context, it is up to people with disabilities themselves to assert their rights, and those who do are considered to be 'troublemakers'. DJA transcript at 14, 31 July 2001. (Copy on file with author).
3 The International Covenant on Economic, Social and Cultural Rights (the Covenant) was adopted by the United Nations General Assembly, Res 2200(XXI), 16 December 1966. It entered into force on 3 January 1976, 3 months after the 35th ratification.
4 The Covenant was signed for Australia on 18 December 1972 and the instrument of ratification was deposited with the United Nations on 10 December 1975 without reservation. The Covenant subsequently entered into force for Australia on 10 March 1976.
5 The Covenant, above n 3, art 11.
6 There are some narrow exceptions to this rule like treaties pertaining to the conduct of war. This issue is complicated further if a treaty states a rule of customary international law or a rule that is part of the common law of Australia. See Andrew Mitchell, 'Genocide, Human Rights Implementation and the Relationship Between International and Domestic Law: Nulyarimma v Thompson' (2000) 24 Melbourne University Law Review 26-30.
7 Core Document forming part of the Reports of States Parties: Australia, UN Doc. HRI/CORE/1/Add.44 para 175, 27 June 1994. This document and other human rights treaty-related documents can be found at the United Nations Human Rights Treaty Bodies Data Base http://www.unhchr.ch/tbs/docs.nsf
8 Periodic Report: Australia 23/07/98. E/1994/104/Add.22, 23 July 1998.
9 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc. E/C.12/1/Add.50, 1 September 2000, para 24.
10 See further, Dianne Otto, 'From "Reluctance" to "Exceptionalism": the Australian approach to the domestic implementation of human rights' (2001) 26 Alternative Law Journal 219.
11 Patricia Williams, The Alchemy of Race and Rights (1991) 163.
12 Mark Tushnet, 'An Essay on Rights' (1984) 62 Texas Law Review 1363.
13 See Carol Smart, Feminism and the Power of Law (1989), Wendy Brown, States of Injury: Power and Freedom in Late Modernity (1995).
14 Concluding Observations: Australia, above n 9, para 20. The Committee on Economic, Social and Cultural Rights regrets that the Government has not set an official poverty line, which has deprived the Committee of the criteria it needs to assess progress towards reducing poverty.
15 Louise Gosselin v Le Procureur General Du Quebec, with the following Intervenors: A-G of Alberta, A-G of Manitoba, A-G of New Brunswick, A-G of Ontario, A-G of British Columbia, Rights and Democracy, Commission des Droits de la Personne et de la Jeunesse, the National Association of Women and the Law, and the Charter Committee on Poverty Issues.
16 The facts of the Louise Gosselin case are set out in the Factum of the Appellant Louise Gosselin, in the Statement of Facts and the Points in Issue. See further, Factum of the National Association of Women and the Law (NAWL), Court File No. 27418, paras 1-16, http://www.povnet.org/gengl.PDF;
17 Regulation Respecting Social Aid, R.R.Q. 1981, c.A-16, r.1, adopted under the Social Aid Act, R.S.Q., c.A-16. Section 29(a)
18 Section 7 of the Canadian Charter of Rights and Freedoms states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
19 Section 15 of the Canadian Charter of Rights and Freedoms states:
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical ability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of the conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical ability.
20 Section 45 of the Quebec Charte des Droits et Libertes de la Parsonne states:
Every person in need has a right, for himself and his family [sic], to measures of financial assistance and to social measures provided for by law, susceptible of ensuring such person an acceptable standard of living.
21 Louise Gosselin's benefit under the Regulation was $173 per month. Robert J of the Quebec Court of Appeal noted that a room cost $180-$200 per month and a one-room apartment cost $320 per month; clothes cost $50 per month; personal necessities cost $37 per month; and food cost $120 per month. As he also points out, the Social Aid Act, R.S.Q., c.A-16, itself states that a person's 'ordinary needs' amount to $440 per month. Gosselin v Quebec (Procureur General), Appellant's Record, Vol.18 at 3479 per Robert J.
22 Section 1 states:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law and justifiable in a free and democratic society.
23 Shelagh Day and Gwen Brodsky, 'Making Substantive Equality A Reality: The Problem of the Bifurcated Rights Paradigm', Canadian Journal of Women and the Law, forthcoming 2002.
24 Ibid.
25 See for example, New Brunswick (Minister of Health and Community Services) v G (J) [1993] 3 SCR 46, L'Heureux-Dube J at 99-100.
26 See 'Limburg Principles on the Implementation of the ICESCR', UN Doc. E/CN.4/1987/17, Annex, reprinted in (1987) 9 Human Rights Quarterly 122 and 'Maastricht Guidelines on Violations of Economic, Social and Cultural Rights', set out in (1998) 20 Human Rights Quarterly 691.
27 Henry Shue, Basic Rights (1980); GJH Van Hoof, 'The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views' in Philip Alston and Katarina Tomaevki, The Right to Food (1984) 97; Andrew Byrnes and Jane Connors, 'Enforcing the Human Rights of Women: A Complaints Procedure for the Women's Convention' (1996) 21 Brooklyn Journal of International Law 679.
28 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, E/C.12/1/Add.31, 10 December 1998, para 15. The Committee notes with concern that 'provincial courts in Canada have routinely opted for an interpretation of the Charter which excludes protection of the right to an adequate standard of living and other Covenant rights'.
29 The dissenting opinion of Roberts J, drawing on interpretations of international instruments, interpreted s.45 as establishing a right to social and economic measures that, at a minimum, ensured to everyone in need the means to enjoy the essential necessities of life. In his view, the Regulation violated s.45. Gosselin, Court of Appeal, para 353.
30 Concluding Observations: Canada, above n 28, para 30.
31 Ibid, para 40.
32 Ibid, para 31.
33 Terry Carney and Gaby Ramia, 'From Citizenship to Contractualism: The Transition from Unemployment Benefits to Employment Services in Australia' (1999) 6 Australian Journal of Administrative Law 117.
34 Green v Daniels (1977) 51 AJJR 463. Although this was the decision of a single judge, Stephen J, it is not expected that any review by the Full High Court would substantially change this result. In this case the applicant, Karen Green, argued that she had been improperly denied unemployment benefits which the Director-General of Social Security was empowered to provide under the Social Services Act 1947 (Cth). Stephen J ordered a re-examination of her case on the grounds that, although the Department's decision was based upon the relevant policy manual, there were doubts as to whether the policy manual properly reflected her entitlement under the Act. However, Stephen J refused to actually order that she was entitled to the benefit because, in his view, the Act provided that that decision was at the discretion of the Director-General. He ruled that she lacked a sufficient cause of action to compel the provision of a benefit and that, in effect, 'unemployment benefit is no more than a gratuity, to payment of which the plaintiff can have no rights enforceable at law'.
35 Factum NAWL, above n 15.
36 Otto, above n 10.
37 Article 26 of the International Covenant on Civil and Political Rights states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
38 Zwaan de Vries v The Netherlands, Communication no. 182/1984; Broeks v The Netherlands, Communication no. 172/1984.
39 The Government has completely ignored the views of the Human Rights Committee in A's case, which found that detention of A at the Pt Hedland facility for illegal immigrants for a period of over four years and without judicial review was 'arbitrary detention' in violation of article 9(1) of the ICCPR.
40 Robert Menzies, Central Power in the Australian Commonwealth (1967) 54, quoted in Charlesworth, above n 23
41 Human Rights and Equal Opportunity Act 1986 (Cth).
42 The scheduled instruments are the ICCPR, the Declaration of the Rights of the Child, the Declaration on the Rights of Disabled Persons, the Declaration on the Rights of Mentally Retarded Persons, the Convention Concerning Discrimination in Respect of Employment and Occupation 1958 (ILO Convention No.111), the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and the Convention on the Rights of the Child.
43 Marian Sawer, 'The Watchers Within: Women and the Australian State' in Linda Hancock (ed), Women, Public Policy and the State (1999) 36.