Asia Pacific Forum meeting: Dr Sev Ozdowski OAM (2001)
Rights and Freedoms
"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.
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
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