Abstract
Australia diverges from other developed countries in not providing specific legal protection for social rights, which are protected only indirectly in Australian law. When crises such as the COVID-19 pandemic, or financial crises require governments to reduce expenditure, there is little bulwark against changes that narrow legal protection or reduce funding. This chapter introduces social rights in Australia and reviews three specific examples to illustrate the impacts of this divergence: laws concerning disability discrimination, the national disability services scheme, and the provision of unemployment benefits. Crises have revealed limitations or weaknesses of protection in each area, and government reluctance to repair the damage to rights. Because many benefits are not insurance based or contributory, they are not treated as individual rights but as privileges, and vulnerable to reductions when the government seeks to reduce expenditure. A convergence factor, the government’s political orientation to neoliberalism, market primacy and outsourcing, has produced approaches similar to the United Kingdom and United States of America in some areas at the general policy level. Overall, however, specific details of protection of social rights and responses to crises have been influenced by distinctive features of the Australian context and diverged from models in other jurisdictions.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
The Commonwealth of Australia Constitution contains a few specific rights, such as a right to trial by jury for an indictable offence (s. 80), and a prohibition on any state discriminating against residents of another state (s. 117). Section 116 protects the secular state by prohibiting the establishment of any religion, the use of a religious test for any public office, or the free exercise of religion, but does not go so far as to create an individual right to freedom of religion.
- 2.
Some limited protection against denial of rights by the commonwealth government or in territories is provided by the Australian Human Rights Commission Act 1986 (Cth) s. 3(1) definition of ‘human rights,’ 11(f) and 20. But this protection is not legally enforceable and can only result in conciliation and a report to the responsible Minister.
- 3.
Solomon (2021), pp. 14–16.
- 4.
- 5.
Canada: Charter of Human Rights and Responsibilities, 1982, UK: Human Rights Act 1998, New Zealand: Bill of Rights Act 1990.
- 6.
- 7.
- 8.
See generally Wilson (2020).
- 9.
ICESCR (Articles 6, 7, and 8).
- 10.
Ibid. A 9.
- 11.
Ibid A 10.
- 12.
Ibid A 11.
- 13.
Ibid A 12.
- 14.
Ibid A 13 and 14.
- 15.
Ibid A 15.
- 16.
Council of Europe, European Social Charter, 18 October 1961, ETS 35.
- 17.
Constitution of South Africa ss. 26-29; The Canadian Charter does not expressly refer to social and economic rights, although the wording of some of its guarantees could be interpreted to include them and has sometimes been interpreted this way: Jackman and Porter (2017).
- 18.
Some rights can be implemented solely by executive action, but this is not sufficient where legal enforceability is needed. For example, the scheme for implementing the International Labour Organisation (ILO) Convention 111 on Discrimination in Employment and Occupation was non-legislative until it was incorporated in the Australian Human Rights Commission Act 1986 (Cth), where it has legislative support but is still not legally enforceable.
- 19.
Australia’s national work law, the Fair Work Act 2009 (Cth), which is beyond the scope of this chapter, in fact fails to respect many human rights and ILO Convention rights: see e.g. Solomon (2021), Chapter 4.
- 20.
Only the Age Discrimination Act 2004 (Cth) was adopted by a conservative Liberal National Party coalition government. All other anti-discrimination and human rights laws in Australia have been introduced by ALP governments.
- 21.
National Human Rights Consultation Committee, Report (2009).
- 22.
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (HRPSA) requires that every bill introduced into the parliament must be accompanied by a statement by its proponent of its compatibility with human rights and be assessed by the Parliamentary Joint Committee on Human Rights for compliance with human rights. The Committee reports back to the houses of parliament. The process includes the rights in all the UN human rights conventions: the ICCPR, ICESCR, the Conventions on the Elimination of All Forms of Racial Discrimination and All Forms of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities, the Convention Against Torture and Convention on the Rights of the Child: HRPSA s. 3(1), definition of ‘human rights.’
- 23.
There are many examples of legislation enacted despite reports from the Joint Committee on Human Rights identifying incompatibilities with human rights. Recent examples include laws authorising offshore detention of asylum seekers and expanding intelligence powers.
- 24.
AHRC Act, s. 3(1) definition of ‘human rights,’ 11(f) and 20. See n 2 above. The limited scope to complain of a breach of the rights in the ICCPR is largely ineffective because it can only be conciliated, not taken to court. Other anti-discrimination acts are listed in n 37 below.
- 25.
Human Rights Act 2004 (ACT), Charter of Human Rights and Responsibilities Act 2006 (Vic), Human Rights Act 2019 (Qld).
- 26.
Human Rights Act 2004 (ACT) as passed in 2004, Charter of Human Rights and Responsibilities Act 2006 (Vic), ss. 8-27.
- 27.
HRA ACT, Part 3A Economic, social and cultural rights, s. 27A Right to education, s. 27B Right to work and other work-related rights.
- 28.
HRAQ, Part 3 Division 3 Economic, social and cultural rights ss. 36 and 37.
- 29.
E.g. Charter (Vic), s. 38.
- 30.
Certain Children v Minister for Families and Children (No 2)[2017] VSC 251, upholding the decision in Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796.
- 31.
E.g. Charter (Vic), s. 32.
- 32.
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34.
- 33.
Solomon (2021), p. 1.
- 34.
Reich (1964).
- 35.
Solomon (2021) undertakes an extended consideration of social rights in Australia.
- 36.
See OECD, Social security contributions Total, % of GDP, 2000 – 2020, https://data.oecd.org/tax/social-security-contributions.htm.
- 37.
Gaze and Smith (2017), pp. 33–34. The earliest federal anti-discrimination law, the Racial Discrimination Act 1975 (Cth) relied directly on the International Convention for the Elimination of all Forms of Racial Discrimination (ICERD). The next law, the Sex Discrimination Act 1984 (Cth) (SDA), was influenced by the then UK laws, the Sex Discrimination Act 1975 and the Race Relations Act 1976. The DDA was adopted in 1992 following the structure of the SDA, and in view of the Americans with Disabilities Act 1990, followed by the Age Discrimination Act 2004.
- 38.
DDA, s. 3.
- 39.
DDA, s. 4(1), definition of ‘disability.’
- 40.
DDA, ss. 5(2) and 6(2), 11, 21B.
- 41.
DDA, s. 45.
- 42.
- 43.
See Allen (2009), p. 579.
- 44.
Equality Act 2010 (UK) s 149.
- 45.
Ramcharan (2016), OECD ‘Sickness and disability’ at https://www.oecd.org/employment/sickness-and-disability.htm.
- 46.
National Disability Insurance Scheme Act 2013 (Cth) s 3(1)(i). The other conventions referred to are the ICCPR, IESCR, CROC, CEDAW and CERD.
- 47.
NDIS Act, s. 3(1)(c)-(f).
- 48.
NDIS: What Does it mean? https://www.ndis.gov.au/understanding/what-ndis.
- 49.
Productivity Commission (2011). The Productivity Commission is a national authority established to conduct research and provide advice to the government about ‘matters relating to industry, industry development and productivity’ as referred by the Minister, and on its own initiative: Productivity Commission Act 1998 (Cth), s. 6. On the NDIS see https://everyaustraliancounts.com.au/research-reports/where-did-the-ndis-come-from/#:~:text=The%20NDIS%20model%20was%20devised,countries%20that%20were%20working%20well.
- 50.
Lee (2017).
- 51.
Henriques-Gomes (2021a).
- 52.
In mid-2021, a new mechanism was proposed for ‘independent assessment’ of plans and reductions of the amounts awarded to clients for their support services. See Henriques-Gomes (2021b).
- 53.
NDIS Act, Chapter 3 – Participants and their plans, e.g. ss. 18P, 20.
- 54.
See NDIS Act, s. 3(3)(a) ‘progressive implementation’ of the scheme.
- 55.
See OECD, note 36 above.
- 56.
Constitution s. 51(xxiiiA) gives the Commonwealth power to legislate for ‘the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not to authorise any form of civil conscription), benefits to students and family allowances.’
- 57.
See Services Australia (2021).
- 58.
Higher Education Funding Act 1988 (Cth).
- 59.
This distinctive system was partly followed when the UK adopted its integrated two-tier tribunal system.
- 60.
Australian Council of Social Service (2021).
- 61.
Solomon (2021), p. 236.
- 62.
McKeever and Walsh (2020).
- 63.
Whiteford (2020), Solomon (2021), p. 248. The Senate Standing Committee on Community Affairs has been conducted an inquiry into Centrelink’s Compliance Program, which reported in 2022 since June 2019. The reporting date has been postponed on several occasions and its currently May 2022: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Centrelinkcompliance. Subsequently a Royal Commission into it was conducted in 2023 which reported adversely on the scheme and the role of the public service and ministers in devising and continuing it: Royal Commission into Robodebt, Report (July 2023).
- 64.
Henriques-Gomes (2021c).
- 65.
Corder (2021).
- 66.
Wright (2021).
- 67.
Bessell (2021).
- 68.
Solomon (2021), p. 225.
- 69.
Arup (2022).
References
Allen D (2009) Reducing the Burden of proving discrimination in Australia. Sydney Law Rev 31:579
Arup C (2022) Liberty or protection? Making law for employment and social security. Griffith Law Rev 31:361
Australian Council of Social Service (2021) Comparison of poverty lines with pension and Newstart (now JobSeeker) payments for singles and couples without children (in $2017-18 per annum)
Bessell S (2021) Australia was a model for protecting people from COVID-19 — and then we dumped half a million people back into poverty. The Conversation 12 August 2021
Boyle K (2020) Economic and social rights law: incorporation, justiciability and principles of adjudication. Routledge
Charlesworth H (1993) The Australian reluctance about rights. Osgoode Hall Law J 31:195–232
Corder M (2021) ‘The buck stops here’: Dutch PM, cabinet resign over welfare debt scandal’. The Age, 16 Jan 2021 https://www.theage.com.au/world/europe/the-buck-stops-here-dutch-pm-cabinet-resign-over-welfare-debt-scandal-20210116-p56ula.html
Degener T (2016a) Ch 3: A human rights model of disability. In: Blanck P, Flynn E (eds) Routledge handbook of disability law and human rights, Routledge, pp 31–50
Degener T (2016b) Disability in a human rights context. Laws 5:35
Fredman S (2011) Ch 1: Equality: concepts and controversies. In: Fredman S (ed) Discrimination law, 2nd edn. Clarendon Press, Oxford, pp 1–37
Henriques-Gomes L (2021a) Disability sector celebrates after Coalition forced to scrap NDIS independent assessments. The Guardian (Australia) 9 July 2021
Henriques-Gomes L (2021b) NDIS overhaul: a solution to a $60bn cost blowout or an attack on the scheme’s soul? The Guardian (Australia) 9 July 2021
Henriques-Gomes L (2021c) Robodebt: court approves $1.8bn settlement for victims of government’s ‘shameful’ failure. The Guardian (Australia) 11 June 2021
Jackman M, Porter B (2017) Social and economic rights. In: Oliver P, Macklem P, Des Rosiers, N (eds.) The Oxford handbook of the Canadian constitution (New York, Oxford University Press, 2017), pp 843-866.
King J (2012) Judging social rights. Cambridge University Press
Lee M (2017) The art of dependency: the NDIS promised choice and control. The Monthly, August 2017
Maccabiani N (2018) The effectiveness of social rights in the EU: social inclusion and European governance, a constitutional and methodological perspective. FrancoAngeli s.r.l, Milan
McKeever G, Walsh T (2020) The moral hazard of conditionality: restoring the integrity of social security law. Aust J Soc Issues 55:73
National Human Rights Consultation Committee (2009) National Human Rights Consultation Report
Otto D (2001) From ‘reluctance’ to ‘exceptionalism’: the Australian approach to domestic implementation of human rights. Alternat Law J 26:219–222
Productivity Commission (2011) Inquiry report - Disability Care and Support
Ramcharan P (2016) Understanding the NDIS: a history of disability welfare from ‘deserving poor’ to consumers in control. The Conversation 6 July 2016
Reich C (1964) The new property. Yale Law J 73:733–787
Services Australia (2021) A guide to Australian Government payments (20 September 2021 to 31 December 2021)
Solomon R (2021) Australia’s engagement with economic and social rights: a case of institutional avoidance. Palgrave Macmillan, pp 14–16
Whiteford P (2020) Robodebt was a fiasco with a cost we have yet to fully appreciate. The Conversation 16 November 2020
Wilson S (2020) Rising pressures, new scaffolding, uncertain futures: Australia’s social policy response to the COVID-19 pandemic. J Aust Polit Econ 85:183–192
Wright S (2021) Australians want JobKeeper overpayments given back to taxpayers. Sydney Morning Herald 28 August 2021
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2024 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Gaze, B. (2024). Social Rights in Australia. In: Ghio, E., Perlingeiro, R. (eds) Are Legal Systems Converging or Diverging?. Springer, Cham. https://doi.org/10.1007/978-3-031-38180-5_13
Download citation
DOI: https://doi.org/10.1007/978-3-031-38180-5_13
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-031-38179-9
Online ISBN: 978-3-031-38180-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)