case that most Western democracies prioritise
civil and political rights in domestic instruments,
as these rights are strongly rooted in common
law tradition and theories of ‘natural rights’
predominant in enlightenment thought.44
However, there is no fundamental difference
between the nature of ICESCR rights and
ICCPR rights. Both sets of rights are of equal
importance in international law, and to ensuring
a dignified life for individuals.
Australia signed ICESCR in 1973 and ratified
it without reservations in 1975. Australia’s
obligations under ICESCR are of the same
status as its obligations under the ICCPR.
The Committee on Economic and Social
Rights (CESCR Committee) has repeatedly
recommended that Australia implement ICESCR
into law.45 Currently, there are some protections
for ICESCR rights in Australia (for example, the
Fair Work Act 2009 (Cth), which embeds workrelated rights, and the ILO 111 jurisdiction in the
AHRC Act), but they are only protected in an
inchoate and fragmented manner. Queensland
and ACT’s human rights instruments have
implemented key ICESCR rights, including
the right to education and health, setting an
example for the federal context.
It is commonly stated that ICESCR involves
‘positive’ obligations, which require investment
of resources, while the ICCPR involves ‘negative’
obligations.46 It is argued that the latter form of
obligations is more familiar to the common law
tradition. However, many commentators have
noted that this distinction breaks down upon
closer analysis. For example, the 2010 Australian
Capital Territory Economic, Social and Cultural
Rights Research Project Report (ACT ESCR
Report) on the implementation of ICESCR rights
in the ACT, explains:
Take, for example, the right to a fair trial,
considered a classic [civil and political
right]. This right depends for its enjoyment
on the allocation by the State of extensive
financial resources to run a court system,
with independent judges, the availability of
legal aid, interpreters and other forms of
support. There is little difference between
this and the expenditure involved in the
maintenance of a health system that gives
effect to the right to the highest attainable
standard of health care.
… Conversely, obligations in relation to
[economic, social and cultural rights] may
often involve negative obligations, for
example, not unlawfully evicting a tenant
from state housing or discriminating
against an employee for union
membership or related activities.47
Similar points about positive elements of the
ICCPR can be made regarding the right to vote,
which requires a functioning electoral system;
and the prohibition on inhumane treatment in
detention, which requires prisons to respect
minimum living conditions and conduct training
for officials.48 Moreover, as noted above, ICESCR
rights are intrinsically linked with the fulfilment
of ICCPR rights. ICESCR and ICCPR rights are
not fundamentally distinct from one another.
They are often simply two sides of the same
conceptual coin.
In the Commission’s experience, many of the
most pressing human rights concerns facing
people in Australia relate to economic, social
and cultural rights. These include access to
adequate health care, education and housing.49
And the restriction of these rights is often linked
to civil and political rights – like the right to nondiscrimination.
A clear majority of Free & Equal submitters50
and consultees supported the inclusion of
ICESCR rights in the Human Rights Act.
Stakeholders emphasised the importance
of ICESCR rights to marginalised and
disadvantaged people who often fall through
the cracks in Australian society. For example,
ICESCR rights are important to:
• prevent homelessness, including by
ensuring adequate housing is available;
and prohibiting unfair evictions
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