Our latest article explores the absence of a right to health in the Victorian and Australian Capital Territory human rights charters. Whilst Queensland has recently introduced a right to health services through its human rights charter, Victoria and the Australian Capital Territory – the other two Australian jurisdictions with a charter of rights – do not include such a right in their charters.
Our paper examines concerns around the potential scope and application of a right to health, based on analysis of reviews of the charters in Victoria and the Australian Capital Territory that have considered but rejected incorporating this right. We find that there are common arguments against incorporating this right in these jurisdictions’ charters, namely:
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- the realisation of a right to health would be impeded by responsibility for health services in Australia, including funding and in some cases delivery, being shared between state or territory and Commonwealth governments, which creates jurisdictional uncertainty;
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- monitoring and reporting on the realisation of the right to health would be burdensome as it could include, for example, measuring air and soil quality levels;
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- a right to health would require the allocation of substantial state resources (including financial resources) in its fulfilment, resulting in the diversion of resources from other service delivery aspects of government, as well as potential changes to government policy in the delivery of health services; and
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- there is limited jurisprudence on a right to health, litigation on this matter could be costly, and courts are ill-equipped to consider complex questions of resource allocation in the realisation of this right.
Against these arguments, we argue that Victoria and the Australian Capital Territory should consider introducing a right to health, writing that:
The inclusion of a right to health could more clearly delineate corresponding obligations of state or territory and federal governments in relation to health service funding and delivery. Furthermore, such a right could provide a framework for addressing the range of issues relevant to underlying determinants of health, such as air and soil quality levels. Concerns about the justiciability of a right to health ignore or underplay the jurisprudence in South Africa and other international jurisdictions that demonstrates that courts can responsibly evaluate these matters with attention to the impact on government policy surrounding the delivery of health services. In that respect, whilst a right to health may compel appropriate state resourcing of health services, this is necessarily an important outcome of rights protection.
We conclude that it is time for Victoria and the Australian Capital Territory to abandon their cautious approach to the codification of economic, social, and cultural rights – and there are signs that the Australian Capital Territory is already doing so – and incorporate a right to health in their human rights charters.