On whether the people of the ACT should be guaranteed economic, social or cultural rights, the people were not asked. On how the very limited ‘right to education’ is operating, the people were not asked. Instead, the government’s own officers concluded that the very limited ‘right to education’ should not be expanded. Overall, they decided ‘not to introduce any further [economic, social or cultural rights] into the HRA’, saying that many economic, social and cultural rights ‘are already protected in the ACT through specific legislation and the policies that sit under those laws’. But that is not the point: provision of services, and legislative entitlements, are less than a guarantee of a right. An indication of the officers’ defensive thinking is in their rationale for recommending the positive step of amending the HRA to make public authorities accountable to the court for the right to education: doing so ‘is unlikely to have a significant impact on the day to day functions of Government’. Well, that’s alright then.
The issue of economic, social and cultural rights is complex in itself, and much more complex when considered in the context of a government with limited resources. In 2005, a researched and considered five year review of the HRA recommended the enactment of some economic, social and cultural rights, which the ACT government rejected. In 2014, the government’s own review of that decision warranted a process that respected both the complexity and the importance of the issue. But rather than initiating an independent and consultative review (whose report it could then reject if it wanted to), the government took a short cut and asked and answered its own questions.
SIMON RICE teaches law at the ANU. He chairs the ACT Law Reform Advisory Council.