Claiming women’s social and economic rights in Australia

ABSTRACT

The article discusses the status of social and economic rights within Australia and why these rights have special significance for women, particularly under neoliberalism. It argues that unless these rights are realised, women’s equal and meaningful participation within our democracy will remain constrained. The article examines the issues that advocates have raised regarding these rights through international and domestic avenues. It suggests that despite their limited enforceability, framing women’s claims in terms of social and economic rights has some value within struggles to achieve women’s equality and deepen democracy in Australia.

KEYWORDS:

• Social and economic rights
• women
• International Covenant on Economic, Social and Cultural Rights
• neoliberalism
• poverty
• equality

Acknowledgements

Thanks to Alison Whittaker for research assistance. I am very grateful to Carolien van Ham, Lisa Hill and Louise Chappell and the anonymous reviewers for their helpful suggestions on earlier versions of this article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The main unemployment payment, Newstart, has not been increased in real terms since 1994 (ACOSS 2016a).

2. Currently 16.2% according to the Workplace Gender Equality Agency: https://www.wgea.gov.au/addressing-pay-equity/what-gender-pay-gap

3. According to the latest Census data, the ‘typical’ Australian women spends between 5 and 14 hours per day on housework while the ‘typical’ man spends less than 5 hours per day on housework: http://www.abs.gov.au/websitedbs/D3310114.nsf/home/2016+Census+National

4. However, this history is more complex and is currently being examined by scholars of international legal history, such as the ‘Socioeconomic Rights in History Network’: http://www2.warwick.ac.uk/fac/arts/history/ghcc/research/serhn

5. International Convention on the Elimination of All Forms of Racial Discrimination (1965); Convention on the Elimination of All Forms of Discrimination against Women (1979); Convention on the Rights of the Child (1989).

6. The group comprised women’s rights academics and activists and was independent of UN structures (Montreal Principles on Women’s Economic, Social and Cultural Rights 2004).

7. CESCR. 2005. General Comment No 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights (art 3 of the International Covenant on Economic, Social and Cultural Rights). Human Rights Council, Thirty-fourth session. E/C 12/2005/4.

8. Working Group on the issue of discrimination against women in law and in practice 2014). Thematic Report on Discrimination against Women in Economic and Social life, with a Focus on Economic Crisis: Annotated Version. Human Rights Council, Twenty-sixth session. 1 April. A/HRC/26/39.

9. It has, however, failed to join some significant treaties such as ILO Domestic Workers Convention 2011 (No. 189); ILO Social Security (Minimum Standards) Convention 1952 (No. 102); and ILO Maternity Protection Convention (Revised) 1952 (No. 103).

10. Although, the AHRC has provided useful resources to assist individuals and organisations wishing to use the CEDAW Optional Protocol: https://www.humanrights.gov.au/our-work/sex-discrimination/publications/mechanisms-advancing-women-s-human-rights-guide-using

11. Human Rights Act 2004 (ACT) s 27A.

12. In any event, the proposed legislation did not include social and economic rights (Byrnes 2010).

13. Australian Human Rights Commission Act 1986 (Cth). See https://www.humanrights.gov.au/rights-and-freedoms-right-right-0

14. Additional avenues open to these groups include the limited horizontal accountability mechanisms of the Fair Work Act 2009 (Cth) and anti-discrimination legislation; or to lobby parliamentarians and advocate for change on human rights issues (diagonal accountability).

15. The treaty bodies surveyed include: The Human Rights Committee (HRC), the Committee Against Torture (CAT), the Committee on the Rights of Persons with Disabilities (CRPD), the Committee on the Rights of the Child (CRC), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Elimination of Discrimination against Women (CEDAW), and the Committee on Economic, Social and Cultural Rights (CESCR).

16. There was strongly voiced concern by many countries that Australia continues with its refugee policy involving offshore detention, indefinite detention, pushing back boats and mistreatment of asylum seekers including sexual violence against women in immigration detention.

17. It was also encouraged to ratify various international human rights treaties to which it is not a party including the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) and the Optional Protocol to the ICESCR (2009).

18. Human Rights Council Working Group on the Universal Periodic Review. 2015. Summary prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21: Australia. Human Rights Council, Twenty-third session. 2–13 November. A/HRC/WG.6/23/AUS/3.

19. Letter from WWDA to CAT, 24 September 2014. http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/AUS/INT_CAT_NGO_AUS_18671_E.pdf

20. International Baby Food Action Network. 2011. The Convention on the Rights of the Child Report on the Situation of Infant and Young Child Feeding in Australia. http://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/AUS/INT_CRC_NGO_AUS_60_8039_E.pdf

21. NGO Coalition. 2010. Freedom Respect Equality Dignity: Action, NGO submission to CERD, June 2010. http://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/AUS/INT_CERD_NGO_AUS_77_8046_E.pdf

22. NGO Coalition. 2008. Freedom Respect Equality Dignity: Action, NGO Submission to HRC: Australia’s Compliance with the ICCPR. http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/AUS/INT_CCPR_NGO_AUS_95_8056_E.pdf

23. YWCA and Women’s Legal Services. 2009. NGO Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in Australia. http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/AUS/INT_CEDAW_NGO_AUS_46_8025_E.pdf

24. Australian NGO Coalition. 2017. United Nations Committee on Economic, Social and Cultural Rights: Review of Australia Fifth Periodic Report under the International Covenant on Economic, Social and Cultural Rights. http://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/AUS/INT_CESCR_CSS_AUS_27335_E.pdf

25. Women comprise one third of the members of federal, state and territory parliaments according to the Parliamentary Library: http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/5154545/upload_binary/5154545.pdf;fileType=application%2Fpdf#search=%22Party%20politics%22

Women make up one quarter of the members of ASX 200 boards according to the Australian Institute of Company Directors: http://aicd.companydirectors.com.au/advocacy/board-diversity/women-on-asx-200-boards-on-the-rise

26. The letter can be found at: https://spdb.ohchr.org/hrdb/22nd/public_-_UA_Australie_19.10.12_(2.2012).pdf

For a discussion of this advocacy and the response by the UN mandate holders, see Goldblatt 2016, 135–143). The government passed the legislation concerned resulting in significant cuts to the benefits of single parents (Goldblatt 2017a).

27. These concerned social security legislation, legislation relating to refugees, and legislation on the Stronger Futures programme in the Northern Territory (the successor of the Northern Territory Emergency Response).

Additional information

Notes on contributors

Beth Goldblatt

Beth Goldblatt is an Associate Professor in the Faculty of Law at the University of Technology Sydney. Her research focuses on feminist legal theory, equality and discrimination law, comparative constitutional law, transitional justice, disability, family law, and economic and social rights, particularly the right to social security. She is a Visiting Fellow of the Australian Human Rights Centre in the Faculty of Law at the University of New South Wales and a Visiting Associate Professor in the School of Law at the University of the Witwatersrand.