Human rights and the hollowed-out state: How human rights charters apply to contracted-out public services

Abstract

Over the last thirty years several national and domestic common law legislatures have sought to better protect and promote human rights by the enactment of legislative bills of rights which have imposed obligations on government bodies and public authorities to comply with human rights standards in their conduct and decision-making. Over the same period the concept of the state and the role of government has been transformed, with activities that were traditionally viewed as the responsibility of government being contracted-out to non-government actors. Human rights primarily focus on the relationship between the individual and the state by restraining the exercise of state power or imposing positive duties on the state. The ‘hollowing out’ of the state through contracting-out public services has challenged this conceptual basis of human rights, by relocating significant power to non-state actors. This thesis examines how the legislative human rights charters adopted in New Zealand, the UK, Victoria and the Australian Capital Territory have addressed this challenge. The thesis analyses how these Acts have employed the concept of ‘public functions’ as the basis for extending human rights obligations to non-government entities performing contracted-out activities. However, the interpretation of the concept of ‘public functions’ has often failed to give clear direction to non-government entities providing contracted-out public services. The effectiveness of each of the Acts in providing certainty to non-government entities regarding their human rights obligations is also considered. The thesis concludes that legislative specification as to what is meant by ‘public functions’, parliamentary explanatory guidance regarding the term and provision for accessible remedies for individuals where service delivery has not complied with human rights standards can provide greater certainty to non-government organisations regarding their human rights obligations. The thesis further concludes that governments should use service contracts, regulatory mechanisms and provide education and training to non-government services to ensure greater compliance with legislative human rights standards in the delivery of contracted-out public services. By the use of such measures the legislation would better be able to protect individuals against the arbitrary exercise of power - whoever exercises it - whilst maintaining the conceptual framework underpinning human rights.