Is the gagging of NSW CLCs a breach of the implied freedom of political communication?

[My Constitutional Law is rusty and so this is an attempt to start a conversation, not to make a definite argument on this issue. I really welcome thoughtful debate.]

The NSW government has recently issued new ‘Principles for Funding of Legal Assistance Services‘ (‘Principles’) in which they have included a new paragraph designed to limit the capacity of community legal centres (‘CLCs’) and Legal Aid centres to carry out political advocacy or activism:

3. In addition NSW Legal assistance services funded by Legal Aid and Public Purpose funding will not include activities which may reasonably be described as political advocacy or political activism. This may include but is not limited to:

(i) Lobbying governments and elected officials on law reform and policy issues (that goes beyond the activities described at principle 2(vii));

(ii) Public campaigning and advocacy, including use of traditional and social media and participating in rallies or demonstrations for causes seeking changes to government policies or laws;

(iii) Conducting workshops directed to political activism (that goes beyond the activities described at principle 2(v));

(iv) Providing representation or advice (other than initial legal advice as described at principle 1(iii)) to activist groups, lobbying groups and action groups.

The question is whether these Principles breach the implied freedom of political communication under the Australian Constitution. The established test for determining the answer to this question is set out by the High Court in Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 567–8:

First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people… If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.

The first issue that must be considered in this case is whether the Principles could be considered to be ‘law.’

The Principles do not appear to be grounded or reflected in legislation or regulations, but they are executive actions of the NSW government and may be subject to the Constitution on this basis. (I’ll return to this issue further below.)

If so, does the ‘law’ effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

By prohibiting CLCs from carrying out political advocacy and activism, the Principles do burden political communication. Of course, the High Court has been clear that ‘the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.’ [Lange: 561]. As Dan Meagher has argued here, the implied freedom is, thus, directed at protecting political communication that ‘may reasonably be relevant to the federal voting choices of its likely audience.’ (For an extended discussion on how broadly this could – even ought to – be interpreted, see Adrienne Stone here, but for the purposes of this post I’ll confine my arguments to a very limited definition.)
The NSW State government, not the Commonwealth, has imposed the Principles. However, the relevant issue is the effect of the ‘law’ in question, not whether they originate at the Commonwealth level (see, for example, Anne Twomey on this issue here] and these guidelines have been very broadly drafted so as to limit political advocacy and activism on both State and Federal issues. It could certainly be argued that paragraph 3 of the Principles (quoted above) expressly limits the capacity of citizens to receive political communication on issues relevant to the free and informed election of the Commonwealth Senate and Legislative Assembly. Sub-paragraph (iv) also limits the capacity of other groups to freely communicate on these issues. Therefore, (subject to the question of whether they constitute a ‘law’) the answer to the first leg of the Lange test is ‘yes.’

What about the second limb of the test?

Are the Principles ‘reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government…?’ Well, the NSW government claims that the purpose (or ‘end’) of the Principles is to ensure ‘that taxpayers’ dollars are earmarked for core legal services and advice.’ This leads to two separate possible arguments.

First, it might be argued that this claimed purpose is not, in fact, the true end of the Principles being imposed by the NSW government. Instead it is arguable that the true purpose of these laws is to suppress political advocacy and activism by CLCs, in which case it could be further argued that the fulfilment of such an end is incompatible with ‘the maintenance of the constitutionally prescribed system of representative and responsible government…’ But this argument would require establishing that the NSW government is being dishonest about its purposes and that wouldn’t be easy.

The second possible argument is that the guidelines in question are not reasonably appropriate and adapted to serve a legitimate end. If the NSW government wants to ensure that its funding of legal services is targeted to specific activities then it could simply specify that its grants are so directed. Instead paragraph 3 of the Principles prohibits CLCs from carrying out political advocacy at all. Since a significant proportion of CLC funding comes from the Commonwealth and private donations (see this Report which states that ‘[i]n 2011/12, the Commonwealth Government provided funding of $7.65M, the NSW Government provided $5.39M, and the PPF provided $5.26M. CLCs also receive some funding from philanthropic organisations and through donations.’), paragraph 3 is drafted overly broadly and serves to suppress political activities even where they are not funded by the NSW government and, thus, unconnected to the stated purpose of the ‘law.’ On the basis of this argument, the answer to the second limb of the Lange test would be ‘no,’ thus making the ‘law’ invalid.

Nonetheless, the remaining issue to be determined is whether this executive action of the NSW government is ‘law’ for the purposes of the Lange test, particularly since it could be argued that as a condition of funding it is not coercive. I’m not sure of the answer to this question. However, I would argue that there are good public policy reasons for including this kind of action under the Lange test.

There are a wide range of public and community institutions that receive government funding and which are essential to the free communication of political information in Australia. These include the ABC, SBS, public libraries, the Australian Film Institute, and a wide range of other service and institutions. If the government were to use conditional funding to severely limit the capacity of all of these institutions to host or participate in political communication (in a similar manner to that recently adopted by the NSW govt towards CLCs) then political communication in Australia would be severely restricted – despite the supposed democratisation of public debate via the medium of social media.

The targeting of CLCs (and Legal Aid) is particularly concerning, because these services are specifically established to support and champion the most disadvantaged groups in Australia. While wealthier groups may have access to either the education or paid advice necessary to properly analyse and critique the laws and policies that affect their lives (and, thus, the informed decision of voters at election time), many disadvantaged groups do not. For these groups to properly engage in public debate on issues of law reform and other complex policy issues, legal support from CLCs is sometimes necessary. To prohibit CLCs from providing this support is to target the political freedom of Australia’s most disadvantaged groups.

[I’ve not touched on the possible relevance of section 96 – the Commonwealth’s power to make conditional grants to the States – because I think the analogy is a bit stretched given that the Constitution makes specific provision for the Commonwealth to attach these conditions to its grants. I also wonder if these conditions could still be challenged where they were to directly breach the Constitution – rather than on the grounds of Commonwealth overreach. For example, would a condition that threatened freedom of interstate trade still be valid?]


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42 responses to “Is the gagging of NSW CLCs a breach of the implied freedom of political communication?”

  1. Robert

    Thanks for posting this, Cristy. I still haven’t thought about it enough to take a firm view, either, but it’s an interesting question.

    FWIW, the court in Lange was clear that the implied freedom is “a limitation on legislative and executive power”, and that the Constitution “preclude the curtailment of the protected freedom by the exercise of legislative or executive power”.

    In Levy, Brennan CJ said: “The implication denies legislative or executive power to restrict the freedom of communication about the government or politics of the Commonwealth, whatever be the form of communication, unless the restriction is imposed to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose.”

    Similarly, in Coleman v Power, McHugh J said: “To the extent that the exercise of legislative or executive powers, conferred or saved by the Constitution, interferes with the effective operation of the freedom, the exercise of those powers is invalid.”

    In this year’s Monis decision, Haynes J said: “Because freedom of communication on matters of government and politics is an indispensable incident of the constitutionally prescribed system of government, that freedom cannot be curtailed by the exercise of legislative or executive power”, and Crennan, Kiefel and Bell JJ said Lange was authority for that.

    So I don’t think it matters much whether the Principles are a regulation or simply a policy.

  2. Cristy

    Excellent. That’s what I would have thought, but it still leaves the issue of whether a funding condition could be said to be sufficiently coercive. Personally I think it would be nonsense to say otherwise, but then I’d probably rule differently on the Engineers case…

  3. Cristy

    (Just a note: I almost wrote my comment as Crusty. Curse you autocorrect.)

  4. desipis

    The targeting of CLCs (and Legal Aid) is particularly concerning, because these services are specifically established to support and champion the most disadvantaged groups in Australia.

    I think it’s important to distinguish the difference between a “right of political communication” and a “right of freedom of political communication“. The former would suggest the government has an obligation to fund political communication for those unable to do so for themselves. This seems to be where you’re headed with the above quote. However, this is not what the High Court has read into the constitution.

    It’s the later that reflects constitutional law. Denying funding is simply refusing to grant assistance to such an activity. It’s not placing a burden on the activity. The conceptual difference between the two is important in understanding the limits of the implied right. I doubt the court would consider the principles to be an unconstitutional use of executive power based on the first leg of the test.

    I also think you’re stretching to suggest that the principles aren’t “reasonably appropriate and adapted to serve a legitimate end“. It’s quite reasonable for the government to clarify that political advocacy is not what it expects legal aid funding to be spent on, particularly if that has been that outcome in the past. There’s a shortage of legal aid funding generally. So it’s reasonable and appropriate for the government to prioritise legal matters over political ones, or even prioritise certain classes of legal matters over others. These sorts of funding priorities are exactly the sort of decision that ought to be made by democratically accountable representatives and not an independent judiciary.

    Personally I’m disappointed in such approaches (we’ve had similar issues in Queensland) as it suggests politically or ideologically motivated micromanaging which rarely has positive outcomes. However, I don’t think the Constitution is an appropriate weapon to use in response to what is a political problem.

  5. Robert

    I’m not so sure the “burden” question is as straightforward as that, desipis.

    For example, consider a scenario in which the Government granted spectrum licenses conditional on not using that spectrum to broadcast political opinion. On your construction, that would not be a burden on political communication because the Government has no obligation to assist political communication by granting access to use the spectrum. I think that condition would clearly be a burden on communication. The funding issue is similar, is it not?

    I think the court could go either way on this (and Monis shows they could just as easily go both ways).

  6. Robert

    Another hypothetical:

    The government makes receipt of financial benefits (Centrelink, or the Forst Home Buyer’s Grant, or what-have-you) conditional on not engaging in political communication. The government has no obligation to provide such financial assistance, so providing it under restrictive conditions is not a burden on political communication.

    Really?

  7. Cristy

    Yes to what Rob has said. Plus I think your missing the point regarding whether the Principles are appropriate and adapted. It’s not the fact that they limit the use of the NSW govt funding, it’s that they prohibit political advocacy and activism at all – ie even when funded from other sources.

  8. Moz has no blog

    [email protected]: that’s not as far-fetched as you might think. A common tactic is to investigate politically active people who are on “bad benefits”[1] to make sure they are doing everything exactly by the book wrt to benefits. Of course, the rules are written to make that impossible… and if by some chance they’re complying, it’s easy to overpay them then charge the with fraud. I haven’t seen that trick in Oz, but it’s very likely been done in NZ (it’s not a crime to do so, or even against policy, so it’s hard to prove. And it happens suspiciously often).

    In NZ the munster for beating up beneficiaries has also taken the position that political action by a beneficiary is consent to have their lives made public in the most damaging way possible.

    [1] the dole, sickness, solo parents etc benefits, as distinct from the “good benefits” which nice white middle-class people get, like superannuation, negative gearing, first home grant. Guess which are worth more?

  9. Moz has no blog

    Cristy, thanks for the description of this problem. I’ve benefited greatly from “political involvement” by community legal centres as a protester. One thing you haven’t mentioned is their significant involvement in giving legal support to protesters. They’re usually behind the “advice to arrestees” flyers and helplines, as well as advising the lockup and prison visits and support. I can imagine the p*lice being very happy to have the “know your rights” backing gone from protests.

    Possibly this regulation is aimed as much at public interest lawsuits as at direct protest. There have been some notable wins recently in Victoria and NSW IIRC, and this may be one response.

  10. desipis

    Robert, I would distinguish broadcast spectrum from funding on the basis that broadcasting is a means of communication, while funding (or legal service) is not. Restricting use of broadcast spectrum (i.e. ACTV) is a practical block to a significant communication medium. Other communication mediums are not comparable in terms of reach or effectiveness. The same cannot be said for funding. There’s nothing to prevent the CLCs from using other funding sources to communicate their views in just an effective way as if they’d used government funding.

    A lot of government payments are already restricted in use or purpose. You only get the home buyers grant if you buy a house. You can’t claim the first home buyers grant because you spent $100,000 on a political advertisement campaign, can you?

    Consider government employees. If an employee disregards their duties and instead politically campaign on some issue, should they face reprimand? If they consistently spend time on political campaigning when they should be doing their job is it breaching their rights to fire them?

    I also think there’s a significant difference between restricting use of funds allocated for a specific purpose and restricting unrelated activities of those who receive funds. If there were restrictions on what staff of CLCs (or government departments) could do when not working, then there would be a significant issue. This scenario would be closer to a restriction on general welfare payments.

  11. Cristy

    Yes. Good point. The Legal Observers Project, for example, was run out of the UTS CLC and provided a lot of support to protesters as well as compiling a report for the NSW Police Ombudsman on the policing of protest activity in NSW.

  12. Martin B

    The Howard government imposed no-lobbying requirements for receipt of federal funds didn’t it? Were those guidelines less restrictive and/or were they ever tested?

  13. Lefty E

    Well, I dare say a lawyer will argue there’s no implied right to freedom of political communication while being funded. Just a right to freedom of political communication. Which you can exercise on the dole queue after the f*ckers defunded your NGO.

  14. Taylor

    Think desipsis is spot on here.

    Aid/Watch v FCT possibly the place to start.

  15. Paul Norton

    Cristy @3, has autocorrect ever turned you into Crispy?

  16. Robert

    desipis, you are conflating “burden” with “reasonably adapted to a legitimate purpose”.

    It would be possible for the Government to attach new conditions to the first homebuyers’ grant banning anyone who has ever signed a petition from receiving a grant. This would be a burden on freedom of speech, but would fail the second limb of the Lange test. The same goes for your “campaigning during work time”—it is a burden on free speech, but a reasonable one.

    I think the NSW Principles are almost certainly a burden on free speech. The real argument is over whether the ban is reasonably adapted to the legitimate purpose of ensuring limited legal aid funding is directed to yada yada yada.

    Taylor, you might be surprised to learn that in Aid Watch, the High Court upheld political lobbying as a legitimate part of charitable work. That case was about the definition of “for charitable purpose only”, so it isn’t directly applicable to an express ban on political lobbying.

    A more relevant case might be ICM Agriculture, in which the Commonwealth provided funding to the State governments conditional on their compulsory acquisition of water rights from the plaintiffs. The Court held that this was invalid because the Commonwealth can’t use conditional funding to circumvent limitations under the Constitution. That is arguably analogous to making continued legal aid funding conditional on limited political communication.

  17. desipis

    Robert,

    I don’t think I’m conflating the issues. The same factors influence both limbs of the test, and i suspect any case would likely either pass or fail both limbs.

    Re “Burden”: I’m confused by your reference to ICM Agriculture. Are you referring to this case, that they lost because “bore licences did not constitute an acquisition of property within the meaning of s 51(xxxi) of the Constitution”? Consider this part in that judgement:

    However, in the present case, and contrary to the plaintiffs’ submissions, the groundwater in the LLGS was not the subject of private rights enjoyed by them. Rather, and as these reasons have sought to demonstrate, it was a natural resource, and the State always had the power to limit the volume of water to be taken from that resource. The State exercised that power from time to time by legislation imposing a prohibition upon access to and use of that natural resource, which might be lifted or qualified by compliance with a licensing system. The changes of which the plaintiffs complain implemented the policy of the State respecting the use of a limited natural resource, but that did not constitute an “acquisition” by the State in the sense of s 51(xxxi).

    I would argue that in the same sense that the state restricting access to a common resource (water) is not “acquisition of property”, the state restricting access to a common resource (funding) is not a “burden”.

    Thus the only way I can see the principles becoming a burden would be if there was no reasonable possibility of the CLCs from assuring the government their money would only be spent according to the principles, while also spending other funding sources on political advocacy activities. Given the principles expressly state they only apply to legal services funded from the NSW government (i.e. not to legal services funded from other sources) this doesn’t appear to be the case. It’s possible the reality of how the principles are applied might make the conclusion different.

    The burden I can see is the fact CLCs that do political advocacy might need to jump through a few extra procedural hoops to provide that assurance and get the funding. Though I’m skeptical that this would be considered a burden in the constitutional sense. It perhaps merits a discussion of the second limb though.

    Re “Reasonably adapted for a legitimate purpose”: If the principles were extended to cover non-government funded activities of the CLCs then arguably it might also be the case that such restrictions are not reasonably adapted. It’s legitimate for the government to limit the use of the funds it provides to particular services (including not being used for political advocacy), but it’s not legitimate to restrict the use of other funds in political advocacy. Doing the later through allocation of legal services funding could be analogous to the circumvention point you made.

    There would be limits on what is reasonable for the government to require CLCs to do to ensure government funding is used for its designated purpose. However the principles themselves show no indication of how they are going to be applied or enforced in a practical sense. A blanket ban on CLCs from doing any political advocacy would likely be considered an unreasonable way to achieve the otherwise legitimate aim. Some form of organisational or accounting separation to ensure political advocacy funding is separated from other legal services funding could be a reasonable requirement. Any constitutional issues would likely arise from the details of the process used in applying the principles, and not in the principles themselves.

  18. Robert

    Yes, that’s ICM. But before they got to the “is a licence property”, the Court considered whether the power to make conditional funding grants under s 96 is subject to the restriction in s 51(xxxi), and held that yes: it is not possible to use conditional grants to circumvent Constitutional limitations on legislative or executive authority. That part of the judgment is potentially of some limited relevance by analogy, because it suggests that simply characterising the restriction as a condition of funding that can be refused may not be enough. Admittedly this is a slightly strained analogy, but I can’t find any cases on point.

    But overall, I don’t think we disagree. If the restriction will apply in the way the CLCs suggest it will—effectively banning lobbying—then I think it is an unreasonable burden. But if it the policy is applied more judiciously, as you suggest it might be, then it probably is not.

  19. Taylor

    Robert

    My overly brief reference to Aid/Watch was simply to suggest that chaitable funds could be an alternative source of funding.

    However on reflection it also supports the argument made by desipis.

    If the implied freedom of political communication were as wide as you suggest the appellant presumably could have argued that denying it tax concessions was a burden on the freedom. But it didn’t. It argued that its activities were intrinsically charitable, and therefore qualified for concessions under the tax law.

  20. Cristy

    Ah. I read ‘legal assistance services’ as meaning the entities – ie the CLCs – but if they refer to the use of the NSW govt funding only then the arg does get more tricky…

  21. Armagny

    In short compass I regret that I agree with Desipis. While in substance I agree that restricting the use of legal aid funds in this way plainly restricts political communication, I do not think the High Court will ‘characterise’ the restricting of the purposes for which public funding can be employed as a relevant burden. I think they will say ‘you are free to lobby to your heart’s content, you just aren’t getting paid to do it.’

    The saving test of reasonable necessity/adapted will not then be triggered. Desipis at [17] again touches on what I think might be the exception to the above, if they overreach, but the policy does not appear at first blush to be designed to go so far as to completely gag the organisations. Still, possible.

    But Cristy I’d like your theory to prove correct, you understand, just that I’d be surprised. Still at least if it did get rejected we’d be spared a viciously right wing, dad-joke riddled rant from Heydon J about smelly shirtless masses or mandragora or somesuch….

  22. Armagny

    Further, I can say in defence of your critique, there is a gap between what the overwhelmingly conservative High Court would probably do, and what a court ought to do…

  23. Taylor

    I have a lot of time for Justice Heydon’s judgments (as I do for Justice Kirby’s).

    This is not just for his technical prowess, although that is formidable – I return again and again to Heydon’s judgment with Crennan in Byrnes v Kendle, about construction, for example.

    Heydon’s intuition is also very deft. For example, there is this from Heydon J, in Monis:

    “For most children, the death of a parent is a sad event. For most parents, the death of a child is worse. That is because many parents die when elderly, or at a great age when death comes as a blessed release. Parents of that kind have lived a full lifespan. But it is different when children die in their parents’ lifetime. The natural order of events is reversed. The children have not fought their fight to finality. They have not run their full race.

  24. Helen

    Cristy, normally I’d delete that spam ^ ^ but maaaate, that is POETRY.

    Reading the OP, I was immediately reminded of the ongoing protests against clearfell logging and woodchipping in Victoria and NSW. Entities like MyEnvironment have kicked some wonderful goals in court (as well as publicising the failures of woodchippers like VicForests) and I’m sure the State governments would love to hamstring them.

    Wasn’t there a push in the last few years to deny funding to any NGO which engaged in protest, advocacy or lobbying? (Or was it charity tax status? Not sure.) I don’t remember the details; was it a state or Federal thing?

  25. Robert

    FYI, Richard Ackland has posted a document including the principles followed by what says are “Examples of CLC work that would be affected by Principle 3 in the attachment”.

  26. Cristy

    Helen, yes, that was the Federal govt under Howard.

  27. Matt

    While there may be problems with reading the principles like a statute, I think more attention needs to be paid to the first, unnumbered, paragraph, which includes this definition:

    Legal assistance services are casework services and non-casework services funded by the NSW Government or the Public Purpose Fund to Legal Aid NSW or through Legal Aid NSW to Community Legal Centres.

    The issue becomes whether non-casework services which are not funded by the NSW Government or the Public Purpose Fund are “Legal assistance services” for the purpose of principle 3. Given the concerns of the CLC sector, the NSW government really should clarify this, rather than get into a dispute about whether they are curtailing the use of private funds channeled through CLCs to engage in advocacy work.

    However, even if that is not the intention, I wonder how much funding support CLCs get that would not be covered by this, and how practical it would be to separate out the privately funded political activism activity from the publicly funded non-activism activity. If that were not practical, it would go straight back to the issue of whether:
    – It is right to use public funds to engage in political activism; or
    – An organisation which receives public funding to address widespread and systemic disadvantage should campaign to resolve issues of systemic disadvantage.
    And this is essentially two different ways of looking at the same issue. Beliefs about the purpose of CLCs, the role of the State and the effective conduct of a democratic society will heavily influence views on how to resolve that issue.

  28. Adrienne Stone

    Cristy, It has taken a few days but here are some thoughts:

    1. The freedom of political communication clearly constrains the executive (state and federal);
    2. However so far it has only been applied to executive action that took the form of rule making in the exercise of delegated legislative power (Levy v Victoria)
    3. There are some reasons of first principle why we might expect it to apply to the executive when acting in another way – in particular when it is contracting. You have outlined them well. (I’m taking some pride in having taught you).
    4. However, the matter is far from clear especially since the formulation in Lange would seem to presuppose that the freedom of pol comm (and other constitutional doctrines) must apply to a ‘law’.
    5. One way around this would be to focus on the law under which these principles would be enforced. (Though what law it is, is not clear to me).
    6. Even if we could get over the question of identifying an offending ‘law’, I think another fundamental structural problem arises. The freedom of political communication is not a positive right. No one has the right to demand the allocation of resources to them to enable their rights of political communication (see McClure’s case). This claim is not quite a claim based on a positive right (ie the claim is not that the NSW government must fund CLCs’ advocacy) but it comes close. It seems to be a claim that government must not put conditions on funding (even though it would have the right not to fund at all). There is a law of unconstitutional conditions in the United States (though no where else that I’m aware of). I’m not convinced our courts would be prepared to consider that.

    So, this is all very tricky and interesting. There are several quite fundamental problems with bringing a claim of this kind. That’s not to say it couldn’t be done, but I think you would have to ‘make new law’ to do it.

  29. Cristy

    Thank you Adrienne. That all makes perfect sense. It would be such an interesting matter to argue in court (and to see the outcome of).

  30. FDB

    “The freedom of political communication is not a positive right”

    There are in fact no positive rights which are enforceable by law.

  31. Cristy

    In Australia, or globally FDR?

  32. BilB

    The way to test the status of this action, I suggest Christy, would be to examine it as it would apply to aboriginal affairs. Aboriginals being a body of people with no (natural) monetary resources. Does this restrict their path to natural justice.

  33. FDB

    Anywhere, Cristy.

    I suppose things that sound like positive rights can be included as clauses in treaties or contracts, but that’s not the same thing as a rights-based law, is it?

  34. Adrienne Stone

    Actually ‘positive’ constititional rights are quite common. The South African Constitutional Court has developed a sophisticated jurisprudence of positive rights, the rights to housing and healthcare among them. South American constitutional courts have also gone down the road of judicial enforcement of positive rights – such as the right to receive medical treatment. It is a difficult path but neither conceptually nor practically impossible.

  35. Cristy

    Yep. And the Supreme Court of India has articulated an expansive right to life that includes positive obligations, including the provision of water services. Ditto the rights to adequate housing and education. Last year, for example, the Court ruled that all primary schools were obliged to construct separate toilets for girls in order to fulfil their constitutional obligations under the right to free and compulsory primary education.

  36. FDB

    To what extent are these rights applicable to individual legal cases? Have there been any successful prosecutions on the basis that a person has been denied their positive rights?

    I’d suggest these so-called human rights would be better described as general principles (and good ones, don’t get me wrong) for the guidance of public policy.

  37. Adrienne Stone

    There have been successful actions in which individuals have had claims against governments upheld and governments required to provide services to them. Famously in India, the courts required the Delhi public transport system to switch from using gasoline to diesel. When the government didn’t comply quickly enough, the courts established a task force to oversee the implementation. In South Africa and Brazil governments have been ordered to make AIDS treatments more widely available. The South African Constitutional Court has also required government to produce a plan for reasonable housing. These are real actionable rights that go beyond offering guidance. Whether they are effective or conducive to outcomes is another question.

  38. FDB

    There have been successful actions in which individuals have had claims against governments upheld and governments required to provide services to them.

    Can you give me an example?

    These are real actionable rights that go beyond offering guidance.

    No, the cases you’ve cited are real, actionable laws guided by sound policy principles. Calling their basis a “human right” achieves nothing unless an individual human can claim that their individual right has been infringed.

    As in the comment thread of Cristy’s previous post on positive rights, I am not against legislative progress towards better social outcomes. I just don’t like the dilution of the concept of rights which seems ingredient to positive rights. It’s mostly a linguistic/philosophical objection, so feel free to ignore it as pedantry if you like.

  39. Cristy

    Additionally in Argentina the Court has ordered the government to provide a sick man with access to medication, based on the right to health. The Supreme Court of India and the Constitutional Court of South Africa have also forced their respective govts to provide alternative accommodation to residents of informal settlements prior to redeveloping their land, based on the right to adequate housing. The Supreme Court of India has forced several Municipalities to provide water services to informal settlements based on the right to life. All of these remedies, like the order to build girls toilets in schools, have been made in response to claims from individuals or groups. They often turn into broader policy changes, because the cases in question have been used strategically for this very purpose, but they are nonetheless decided on the specifically facts relevant to the claimants in questions.

  40. Cristy

    If you’re interested in this suggest, you could read ‘Litigating Economic Social and Cultural Rights’ – http://globalinitiative-escr.org/wp-content/uploads/2012/06/Litigating-ESCR-Report.pdf

    ‘The Road to a Remedy’ – http://209.240.139.114/wp-content/uploads/2012/02/The-Road-to-a-Remedy.pdf

    Or Malcolm Langford’s ‘Social Rights Jurisprudence’ – http://www.cambridge.org/gb/knowledge/isbn/item1173526/?site_locale=en_GB
    In the introductory chapter Langford deals really well with all of the classic arguments against the justiciability of (so-called) positive rights.

    Maybe I should write a post on this subject…

  41. Cristy

    My comment is awaiting moderation. Well this is awkward…

    [Sorted already! – mods]

  42. Adrienne Stone

    I agree with Cristy. Her reading list will help you clarify your thoughts.