Committee on Economic, Social and Cultural Rights hears from civil society organizations from Australia, Uruguay and the Netherlands

Committee on Economic, Social
  and Cultural Rights

 29 May 2017

The Committee on Economic, Social and Cultural Rights this afternoon heard from civil society organizations from Australia, Uruguay and the Netherlands, whose reports will be considered by the Committee this week.

Non-governmental organizations from Australia highlighted the fact that the International Covenant on Economic, Social and Cultural Rights had not been fully incorporated into Australian domestic law, which meant that the rights were not justiciable in Australian courts.  Other concerns included lower rates of workforce participation, wages, retirement incomes and savings by women; lack of access by Aboriginal and Torres Straits Islander Australians to health and to an adequate standard of living; and the policy of mandatory immigration detention for all people who arrived by boat without a visa.

On the Netherlands, a civil society organization drew attention to the inadequate status of economic, social and cultural rights in the domestic legal order; the lack of concrete actions and targets in the Government’s action plan to combat pregnancy discrimination; the disadvantaged position of domestic workers; and the lack of facilitated access to the labour market for persons with disabilities.

As for Uruguay, civil society representatives noted that the overall mental health situation in Uruguay had not changed for the better and that people in the system were still being discriminated against.  There was no normative framework for people in the country to claim their economic, social and cultural rights, and to make collective claims.   Poverty, access to education, and the right to a family life and housing remained problematic for children and adolescents.

The Australian Human Rights Commission and the Netherlands Institute for Human Rights took the floor.  Speaking on Australia were the following non-governmental organizations: People with Disability Australia/Coalition, Australian Child Rights Taskforce, Disabled People’s Organizations Australia, Global Human Rights Group, Human Rights Council of Australia, and Global Initiative for Economic, Social and Cultural Rights.  Speaking on the Netherlands was the Dutch Section of the International Commission of Jurists.  Speaking on Uruguay was the Institute of Legal and Social Studies, Coalition of Civil Society Organizations, and the Coalition of the Rights of the Child.

The Commission will also review the situation in Liechtenstein, Sri Lanka and Pakistan during this session, and civil society from those countries will address the Committee on Tuesday, 6 June at 3 p.m.

The Committee on Economic, Social and Cultural Rights will next meet in public on Tuesday, 30 May, at 3 p.m., to start its consideration of the fifth periodic report of Australia (E/C.12/AUS/5).

Statements by National Human Rights Institutions from Australia and the Netherlands

Australian Human Rights Commission said that in the period from 1 July 2009 to 30 June 2014, Australia had made progress in the realization of a number of economic, social and cultural rights.  The Commission commended the Government for action in the following areas: the establishment of a system of parliamentary scrutiny of human rights; the establishment of the National Disability Insurance Scheme; the commitment from the Government to fund schools based on student need; the introduction of federal protections against discrimination on the basis of sexual orientation, gender identity and inter-sex status; and a range of measures to protect the rights of children, including the establishment of the National Children’s Commissioner, the Royal Commission into Institutional Responses to Child Sexual Abuse, and the Royal Commission into the Protection and Detention of Children in the Northern Territory.  At the same time, the Commission had concerns about the structure of rights protection in Australia and about the realization of particular economic, social and cultural rights. 

Although Australia had ratified the International Covenant on Economic, Social and Cultural Rights, it had not fully incorporated the treaty into Australian domestic law, which meant that the rights were not justiciable in Australian courts.  The Covenant was not given the same status by Australia as it gave to other human rights treaties.  In particular, it did not fall within the definition of “human rights” under the Australian Human Rights Commission Act 1986, which meant that individuals were not able to make complaints to the Commission that their rights under the Covenant had been breached.  Women in Australia continued to experience lower rates of workforce participation, wages, retirement incomes and savings.  They earned 17.7 per cent less than men across all industries.  In 2016, the Commission had reported on employment discrimination against older persons and those with disabilities.  There were more than 100,000 homeless persons and more than 200,000 households were on lists for social housing.  Aboriginal and Torres Straits Islander Australians were the group most vulnerable to breaches of the rights to health and to an adequate standard of living.  There was also concern about the disproportionate number of indigenous children in out-of-home care.  Australia maintained a policy of mandatory immigration detention for all people who arrived by boat without a visa.  Some people faced prolonged and indefinite periods of time in detention, which had significant impacts on detainees’ physical and mental health.

The Netherlands Institute for Human Rights noted that one primary area of concern was that economic, social and cultural rights did not have the status in the domestic legal order of the Netherlands that they should have.  Parliamentary proceedings did not show an examination of the compatibility of draft legislation in light of Covenant obligations.  It was almost impossible to challenge before a court whether the Covenant guarantees had been complied with in the legislation, as Dutch courts were very reluctant to accept the direct effect of Covenant provisions.  Studies showed that there was a persistent higher unemployment rate among ethnic minorities, as well as unequal opportunities on the job market.  The Government’s action plan to combat pregnancy discrimination was insufficiently concrete in specifying how the willingness to report pregnancy discrimination would be increased, and which steps would be taken to ensure that employers took the necessary steps to prevent and combat pregnancy discrimination.  Moreover, the action plan did not provide for concrete targets. 

The disadvantaged position of domestic workers was another issue, which mainly affected women.  The Committee’s recommendation on that issue had not been complied with, nor had the Netherlands ratified the ILO Convention 189 on decent work for domestic workers.  As for persons with disabilities, since the entry into force of the Participation Act and the Jobs and Jobs Quota Act in 2015, there were reports that those instruments insufficiently contributed to their purpose, which was to facilitate access to the labour market for persons with disabilities.  On an adequate standard of living, the Institute had paid attention to the impact of poverty on the right to health, education, work and housing.  It recommended that the Government adopt a comprehensive plan to combat poverty and social exclusion, based on human rights. 

 
Questions by Experts

Experts raised questions about the debate on ethnic monitoring in the Netherlands, and the polemical issue of economic and social rights for undocumented migrants.  The Netherlands seemed to have rejected the recommendation on the European Commission on Social and Economic Rights.  What kinds of recommendations should the Committee make: suggest Constitutional changes?  What were the reasons behind low reporting of pregnancy discrimination in the Netherlands? 

What was the view of the Dutch society on gender roles?  As for persons with disabilities, how could malpractices be remedied?  What were the reasons for the delay in the ratification of the Optional Protocol to the Covenant?  What were the pros and cons of the devolution of many social services to the local level in the Netherlands?

Experts also raised the issue of the wage gap between women and men in Australia.  What were the Government’s labour market policies?  What was the Constitutional status of Aboriginal peoples.  On the right to education, there were disparities in funding of private and public schools.  It seemed that more funding went to private schools. 

In light of the fact that Australia and the Netherlands were highly industrialized countries, was the funding for economic, social and cultural rights adequate?  How did income inequalities and equalities in the two countries influence the realization of economic, social and cultural rights?  

MARIA VIRGINIA BRAS GOMES, Committee Chairperson, noted that the lack of equal status of economic, social and cultural rights and of the political and civil rights was a recurring theme.  Was there room to remedy that situation through the non-discrimination clause?  What were the reasons for the lack of achieving targets? 
 
Replies by National Human Rights Institutions from Australia and the Netherlands

Australian Human Rights Commission explained that the Workplace Equality Agency had been established in Australia and the Institute had asked the Government to lift participation rates, national education campaigns, and to focus on ability.  It suggested that the Government should encourage merit-based employment and improve employment across the Government, which was a big employer.  More could be done in terms of skills training.  A process had been going on for a number of years to bring about Constitutional changes with respect to the status of Aboriginal and Torres Straits Islander Australians.  As for the disparities in funding for public and private schools, in 2011 a major study had concluded that funding should be made according to need, which meant that a higher allocation per student was needed for vulnerable groups of students. 

Australia needed to meet the minimum obligations under the Covenant.  Poverty was a key social determinant leading to the non-realization of economic, social and cultural rights, especially in the case of Aboriginal peoples.  It was difficult to change the Australian Constitution, but there was room for making the Covenant part of the Australian Human Rights Commission Act.  Specific health parity targets to close the gap between the Aboriginal and non-Aboriginal population had been defined by the Government

The Netherlands Institute for Human Rights said problems of ethnic minorities in the labour market were considerable as almost 50 per cent of them faced problems.  There was no general agreement on how to treat undocumented migrants and different standards had been adopted in different communities.  Regarding the persistent problem of the lack of implementation of economic, social and cultural rights, the Government should lead by example.  The Institute held that there was a lot of room to raise awareness in that area.  Indeed, there was lack of reporting of pregnancy discrimination because women could lose a lot and because they were not aware of their rights.  There was a lack of concrete targets in the national action plan on reducing pregnancy discrimination.  The Netherlands was lagging behind in combatting gender stereotypes.  The number of women in top positions in business and academia was relatively low and the Government needed to do more to address that issue. 

The most recent figures about persons with disabilities in the labour market were not promising.  The Institute called on the Government to examine the adopted acts and their unintended effects on persons with disabilities.  The devolution of social services to the local level was a mixed bag as they became more tailored, but at the same time there was a lack of awareness of local administration.  It was difficult to say whether the budget was allocated adequately.  People living in poverty had great problems in realizing their economic, social and cultural rights.  The Institute called on the Government to come up with a tailored action plan to address the problem of poverty.
 
Statements by Civil Society Organizations from Australia

People with Disability Australia/Coalition stated that Australia should be held to the highest possible standards with regard to its implementation of economic, social and cultural rights.  Yet, despite abundant resources, 13.9 per cent of people in Australia were living below the poverty line, including 17.7 per cent of all children.  There were a number of areas of concern, such as Australia’s asylum seeking regime which harshly discriminated between those who arrived in Australia by boat and those who arrived by plane, including mandatory offshore detention, limited access to education and health services, and breach of social and economic rights in multiple regards for the former.  Secondly, Aboriginal and Torres Straits Islander People continued to face significant and compounding discrimination, and disadvantage in their enjoyment of basic economic, social and cultural rights.  Their unemployment rate was four times that of other Australians. 

Thirdly, despite the First National Dialogues Process, the right to self-determination for Aboriginal and Torres Straits Islander People remained unfulfilled.  There was little evidence of the commitment required to address the systemic policy, legislative and attitudinal barriers that exacerbated inequality for indigenous Australians.  Fourthly, significant and welcome reform was underway in the area of disability support with the introduction of the National Disability Insurance Scheme in 2013.  However, the drive to implement the Scheme was steering focus and funding away from other areas of disability rights that urgently needed addressing.  While there had been improvements in Australia’s gender policy, domestic violence remained prevalent.  Inequality of women persisted in the labour market and homelessness.  Finally, there was a concern about the violation of the rights of migrant workers. 

Australian Child Rights Taskforce noted that the many shortcomings in the realization of economic, social and cultural rights for children were symptomatic of the absence of a federal minister with responsibility for children, a federal human rights act, a national plan for children, and inadequate resourcing to address persistent disadvantage.  Aboriginal and Torres Strait Islander children were 9.8 times more likely than non-indigenous children to be in out-of-home care.  Youth justice detention systems in Australia also frequently failed to protect the rights of children, or to act in their best interests.  The Northern Territory Royal Commission and several state reviews had highlighted a lack of access to education, medical and mental health services and serious instances of cruel, inhuman and degrading treatment, including the excessive use of isolation.  Civil society was deeply concerned about Australia’s slipping educational outcomes and inequality among schools, and about practical barriers faced by Aboriginal and Torres Strait Islander children and children of diverse sexual orientations.  Children and young people in the workforce continued to face direct discrimination due to an exemption in the Age Discrimination Act 2004 which allowed for people under 21 to be paid a fraction of the minimum wage.    

Disabled People’s Organizations Australia acknowledged the positive reforms that had been initiated by the Government, such as the development of the National Disability Insurance Scheme.  For people with disability to achieve inclusion and full participation in all areas of life, it was essential that there was a parallel commitment to comprehensive reform and implementation.  The effectiveness of the National Disability Strategy was hampered by a lack of broad vision and a lack of resourcing.  It was critical that Australia urgently committed to adequately resourcing the Strategy.  It was noted that 90 per cent of women with intellectual disability in the country had been sexually assaulted, with 60 per cent experiencing that abuse before the age of 18.  That violence often happened in exactly the places that people with disability expected to be safe.  High rates of violence stopped people with disability from being able to access their economic, social and cultural rights.  The Committee was urged to maintain attention and pressure on the Australian Government to prohibit the forced sterilization of people with disability and people with intersex variation, as the practice was incompatible with a human rights approach to health. 

Global Human Rights Group called attention to offshore detention centres of asylum seekers and evidence of human rights abuses there.  The use of torture had been confirmed in detention centres and custody.  A number of people had died due to the lack of access to medical services.  Women were forced to have children in dangerous circumstances.  Abortion was not legal in places of detention.  There was a gross failure to protect the mental health of asylum seekers, as well as a deliberate attempt to harm their mental health.  As for the right to food, there were instances of food and water not being sufficiently provided, as well as the serving of expired food.  Inadequate housing was provided to asylum seekers in detention centres.  The education that was provided to asylum seekers was insufficient in Nauru.  The Government of Australia criminalized the sharing of such information with the United Nations.  The Group called on the Committee to urge the Australian Government to withdraw that policy.      

Human Rights Council of Australia noted that the key question for Australia was whether it was utilizing the maximum of its available resources in order to progressively achieve the full realization of the rights recognized by the Covenant.  Australia’s indigenous peoples continued to experience extreme levels of poverty and deprivation.  The Council urged the Committee to pursue that issue with the Australian delegation under Articles 2 and 3 of the Covenant.  Reports on children in mandatory detention provided incontrovertible evidence that such detention had had serious negative impacts on the physical and mental health of children.  The Council thus urged the Committee to take up those issues, and to recommend to the Australian Government to take urgent action to address the health, education and employment rights of asylum seekers.  Migrant workers represented about 10 per cent of the Australian work force.  Their employment circumstances were often precarious.  They were at risk of exploitation by their employers.  The Council therefore urged the Committee to recommend to the Australian Government to ratify the Migrant Workers Convention and to provide leadership to their wealthy countries in recognizing the risks confronted by migrant workers and their status as a vulnerable minority deserving of the special protection afforded by the Convention.

Global Initiative for Economic, Social and Cultural Rights called attention to the case of an Australian bank which had financed the Phnom Penh sugar plantation which was responsible for the seizure and destruction of housing and land of more than 20 villages in Kampong Speu province.  Many of the victims of those forced evictions lived in extreme poverty as a result of losing their land.  Victims had been denied access to justice in Cambodia and had filed a complaint with the Australian National Contact Point for the OECD Guidelines for Multinational Enterprises.  However, they remained concerned about whether justice would be achievable given the lack of independence and accountability of that mechanism.  It was noted that climate change detrimentally impacted Covenant rights such as housing, water and sanitation, and health.  Due to climate change, Australia had faced and would increasingly experience extremely high temperatures, extreme droughts, more bushfires, sea level rise and ocean acidification, which would lead to increases in heat related illnesses and deaths, respiratory problems, damage and destruction of housing, and water and food shortages.  However, Australia’s greenhouse gas emissions were increasing in absolute terms.  The Government had repealed its carbon trading scheme, had reduced its support to renewable energy, and continued to promote and subsidize coal energy.  Those policy settings did not reflect the very serious foreseeable harm to Covenant rights presented by climate change.  

 
Questions by Experts

Experts raised the issue of cuts to welfare benefits in Australia, compulsory income management, restrictions on the organization of trade unions, and the high prevalence of violence against disabled women.  Supply chains of Australian companies and the debate on human rights and businesses were also raised. 

MARIA VIRGINIA BRAS GOMES, Committee Chairperson, asked how the calculation of absolute and relative poverty was determined in Australia. 
 
Replies by the Civil Society Organizations from Australia

People with Disability Australia/Coalition explained that violence against women and people with disabilities took place in all settings, institutionalized and non-institutionalized.  One of the recommendations was that the Government establish a Royal Commission.  The Government had rejected the recommendation and said that the mechanisms that were part of the National Disability Insurance Scheme would investigate such violence.  However, the Scheme covered only about 10 per cent of the population with disability.  The compulsory income management was in place in the Northern Territory and it would be probably be extended to some other areas in the country.  The Government had implemented a debt recovery programme and the data gathered for that purpose had not been managed correctly.  The compulsory income management project should be reviewed due to some tragic events that had occurred due to its introduction, namely people being placed under pressure without knowing about their debt.
 
Civil Society Organizations from the Netherlands

Dutch Section of the International Commission of Jurists highlighted some serious structural issues, namely the lack of direct applicability and justiciability of the Covenant in Dutch courts.  The Covenant contained binding obligations and courses of action, and the Government should recognize and promote relevant legal development of the Covenant rights in the past decades.  There was absence of any formal human rights education in the Dutch school curriculum.  That issue had been repeatedly stressed by civil society.  The Commission of Jurists expressed concern about the continuing violations of the rights of persons from groups at heightened risks, particularly migrants who in some instances did not even enjoy the most basic level of protection of their rights. 

Secondly, persons from the Caribbean part of the Netherlands still experienced obstacles in the equal enjoyment of rights, which had resulted from recent constitutional changes.  There were also attempts to curb migration from the islands to the European part because of socio-economic differences, and the lack of opportunity to use and promote the local minority language, culture and history through education.  There were also pressing concerns related to natural resources extraction and business and human rights, namely gas extraction in the northern province of Groningen where the inhabitants were severely affected by earthquakes due to prolonged gas extraction.  They faced widespread damage to housing, forced evictions due to safety concerns, social unrest and health problems.  In part, those problems were caused by the highly unsatisfactory manner in which the Government and the gas extraction company Shell and Exxon Mobile had been addressing the situation. 
 
Civil Society Organizations from Uruguay
 
Institute of Legal and Social Studies said that the overall mental health situation in Uruguay had not changed for the better and people in the system were still being discriminated against.  The legislative framework had not changed for 80 years.  It was necessary to transpose treaty human rights into domestic law.  The bill on mental health, which was currently under discussion in Parliament, did not contain a human rights based approach.  One worrying aspect of the bill was a commission, which should be replaced by an independent monitoring body.  The commission was part of the public health authority and was thus not independent.  As for institutionalization, it was the judge and doctor who decided on it.  There was also no prohibition of electric shocks and over-medication in the bill.  The Institute was working on how to transform the mental health system in line with a human rights approach.  Uruguay had not revised norms of the Criminal Civil Code in which guardianship was not defined, namely total and partial capacity.

Coalition of Civil Society Organizations presented a report on the list of issues pertaining to the fifth periodic report of Uruguay.  There was no normative framework for people in the country to claim their economic, social and cultural rights, and to make collective claims.  The Government should adopt relevant laws, ensure that people could make collective claims, and disseminate the Covenant rights.  There was a need to collect statistical data on a number of forms of discrimination.  The change of migration flows in Uruguay had led to multiple forms of discrimination and thus there was a need to develop policies which would meet their needs.  There was no holistic approach to economic, social and cultural rights in present laws in Uruguay.  Systematic monitoring standards should be developed.  There was a need to generate data on gender-based violence, as well as commercial and sexual exploitation of boys and girls.  The Coalition recommended measures to address school dropout rates among children with disabilities and African descent. 

Coalition of the Rights of the Child noted that since the last country report, the situation of children and adolescents in Uruguay had improved slightly.  However, poverty, access to education and the right to a family life and housing had remained problematic.  The gap was widening depending on where children lived and on their origin, namely Afro descendants.  Six out of 10 lived in the worst economic circumstances, and poverty was more acute among children than among adults.  Access to education showed a major gap depending on economic and social origin.  Uruguay had one of the highest rates of institutionalization of adolescents in the region, seven times more than Brazil, for example.  That family destruction was a serious concern. 
 
Questions by Experts 
 
Experts asked whether in practice the provisions of international treaties were indeed invoked in courts.  Was there any public policy on the economic, social and cultural rights of migrants leaving Uruguay for third countries?  Why was statistical data not reliable?  What was the impact of state and private education on the right to education?

What was the level of employment by persons with disabilities?  Was there any public policy in place that specifically made it easier for persons with disabilities to access employment?  What was the pay gap for migrants and refugees?  As for the pending gender violence bill, did it still have any gaps and deficiencies? 

MARIA VIRGINIA BRAS GOMES, Committee Chairperson, asked whether the Coalition of civil societies from Uruguay would continue working together in order to respond to the Committee’s concluding remarks.

Replies by the Civil Society Organizations from Uruguay

Institute of Legal and Social Studies explained that persons who used mental health care services had submitted a number of requests to the authorities.  On housing, the relevant ministry said there were no specific programmes for persons with mental health problems, and there were no particular education programmes for them.  The Ministry of Employment also replied that there were no specific programmes for that population.  The current bill did not include any specific provisions.  The implementation of the supervisory body to ensure the realization of the human rights of persons with mental health problems had not been completed. 

Coalition of the Rights of the Child said that adolescent mothers were seriously affected by the issue of school dropout rates.  There were policies in place, but they did not have the desired effect in reversing the negative trend.  Children with disability faced great difficulties in pursuing formal education.   

 
Coalition of Civil Society Organizations noted that there was reluctance to introduce relevant education policies, notably those related to violence in schools.  The lack of balance between private and public education was due to socio-economic factors.  Data on gender violence were not representative because the latest national survey only focused on girls above the age of 15.  There was an initiative on gender violence in Parliament and the current bill was adequate.  However, some voices in Parliament were now questioning the bill.  The current jurisprudence on economic, social and cultural rights in Uruguay was quite anachronistic.  Uruguay had been working on a comprehensive policy framework on migration.  Many entered the country without a visa and thus experienced difficulties in accessing the labour market.  Uruguay was the only country in Latin America which did not recognize the right to vote for those Uruguayans residing abroad.  It was clarified that the Coalition had been set up on an ad hoc basis and that it would wait for the Committee’s concluding remarks and continue working together. 

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