Chapter 2
Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 1.
Copyright Amendment
(Online Infringement) Bill 2015
Portfolio:
Attorney-General
Introduced: House of
Representatives, 26 March 2015
Purpose
2.3
The Copyright Amendment (Online Infringement) Bill 2015 (the bill) seeks
to amend the Copyright Act 1968 (the Act) to reduce copyright
infringement by enabling copyright owners to apply to the Federal Court of
Australia for an order requiring a carriage service provider (CSP) to block
access to an online location operated outside Australia that has the primary
purpose of infringing copyright or facilitating the infringement of copyright.
2.4
Measures raising human
rights concerns or issues are set out below.
Background
2.5
The committee previously considered the bill in its Twenty-second
Report of the 44th Parliament (previous report) and requested
further information from the Attorney-General as to whether a number of
measures in the bill were compatible with human rights.[1]
2.6
The bill passed both Houses of Parliament on 22 June 2015 and achieved
Royal Assent on 26 June 2015.
Copyright owners to be able to apply for an injunction to disable access to
infringing online locations outside of Australia
2.7
The bill allows copyright owners to apply for injunctions from the
Federal Court to force CSPs to block certain internationally operated online
locations, with the effect of preventing CSP subscribers from accessing both
authorised and unauthorised content such as video and music files from these
websites.
2.8
The committee considers
that the bill engages and limits the right to freedom of opinion and expression
and the right to a fair hearing.
Right to freedom
of opinion and expression
2.9
The right to freedom of opinion and expression is protected by article
19 of the International Covenant on Civil and Political Rights (ICCPR). The
right to freedom of opinion is the right to hold opinions without interference
and cannot be subject to any exception or restriction. The right to freedom of
expression extends to the communication of information or ideas through any
medium, including written and oral communications, the media, public protest,
broadcasting, artistic works and commercial advertising.
2.10
Under article 19(3), freedom of expression may be subject to limitations
that are necessary to protect the rights or reputations of others, national
security, public order (ordre public)[2],
or public health or morals. Limitations must be prescribed by law, pursue a
legitimate objective, be rationally connected to the achievement of that
objective and a proportionate means of doing so.[3]
Compatibility of the measure with
the right to freedom of opinion and expression
2.11
The statement of compatibility states that the bill promotes the right
to freedom of opinion and expression. However, preventing users who are legally
sharing or distributing files from websites, and preventing the general public
from accessing such lawful material, limits their enjoyment of the right to
freedom of opinion and expression and their right to receive information. Such
a limitation may be justifiable.
2.12
The committee accepts that the reduction in accessing online copyright
infringement is a legitimate objective for the purposes of international human
rights law, and that the measures are rationally connected to that objective as
the measures will inhibit access to material that breaches copyright.
2.13
However, the information provided in the statement of compatibility does
not establish that the measure is proportionate to this objective (that is, there
is no less rights restrictive alternative to achieve this result). Other potential mechanisms could include, for example,
issuing infringement notices to individual copyright infringers and/or the
provision of damages.
2.14 The committee therefore sought the advice of the Attorney-General as to
whether the bill imposed a proportionate limitation on the right to freedom of
opinion and expression.
Attorney-General's response
The Committee has considered that the Bill engages and limits
the right to freedom of opinion and expression and has sought advice on whether
this limitation is proportionate.
The injunction power contained in the Bill is intended to
target sources that supply significant amounts of infringing copyright content
to Australian consumers. The Bill asks the Federal Court to balance a variety
of interests in making an order and I expect the Court will be very circumspect
in using this process.
Mechanisms that aim to change the behaviour of individual
consumers through an educational approach, such as the Copyright Notice Scheme
contained in the industry code submitted to the Australian Media and
Communications Authority on 8 April 2015, would effectively complement but not
replace a measure that disrupts the supply of infringing content. International
experience has shown that disrupting the supply of infringing content will
steer consumers towards legitimate avenues. Direct proceedings against
individual infringers is not an effective means of addressing online copyright
infringement due to the large number of infringers and the small quantum of
damages that could be recovered from each infringer.
The Bill does not seek to limit the ability of persons to
access or communicate information or ideas, other than where doing so would
infringe another person's copyright. Where an online location provides a
mixture of legitimate and infringing material, it is open to the Court to issue
an injunction with regard to only specific pages, directories or indexes
provided this is technically feasible. Moreover, the primary purpose test,
combined with the factors in subsection 115A(5) make it clear that only online
locations that are deliberately and flagrantly infringing copyright will be
captured. The injunction power is not intended to capture incidental infringement.
Furthermore, there are a number of reasons that make it
impractical for copyright owners to take direct proceedings against infringing
foreign-based online locations. The territorial nature of copyright means that
copyright owners often face complex issues of private international law when
enforcing their rights in the online environment.
This was discussed in a 2011 article published in the
European Intellectual Property Review and authored by Ms Fiona Rotstein of the
University of Melbourne, which stated:
It is often difficult to know
which nation's courts have jurisdiction over intellectual property disputes
involving a foreign element and which conditions need to be met for decisions
of foreign courts to be recognised and enforced within a country. It is also
not easy to determine which nation's laws are to be applied to govern the
substance of legal relationships involving a foreign element.[4]
The article also noted that it is unknown whether the
copyright owner can bring an action in one forum in respect of multiple
infringements in different countries.
The legal complexities and the possibility that copyright
owners will need to attend foreign courts to enforce their rights means that
any direct proceeding against a foreign online location are likely to be
prohibitively costly, particularly for individual or lesser known copyright
owners. In contrast, the process of seeking an injunction against a Carriage
Service Provider would be a much simpler and more accessible process.[5]
Committee response
2.15 The committee thanks the Attorney-General for his response on the
proportionality of the measure. The committee considers the Attorney-General's
response has demonstrated that the measure is likely to be compatible with the
right to freedom of opinion and expression. In particular, the committee notes
that:
-
the Federal Court will weigh up a number of factors before
granting an injunction requiring a CSP to block access to an online location
operated outside Australia that has the primary purpose of infringing copyright
or facilitating the infringement of copyright;
-
where an online location provides a mixture of legitimate and
infringing material, the Federal Court could issue an injunction with regard to
only specific pages, directories or indexes; and
-
direct proceedings against a foreign online location are
likely to be prohibitively costly.
Right
to a fair hearing
2.16
The right to a fair hearing is protected by article 14 of the ICCPR. The
right applies to both criminal and civil proceedings, to cases before both
courts and tribunals and to military disciplinary hearings. The right is
concerned with procedural fairness, and encompasses notions of equality in
proceedings, the right to a public hearing and the requirement that hearings
are conducted by an independent and impartial body.
Compatibility of the measure with the
right to a fair hearing
2.17
The statement of compatibility states that the bill promotes the right
to a fair hearing, and ensures the right of due process for both CSPs and the
operators of affected online locations.[6]
However, the committee notes that it is up to the court's discretion to grant
the operator of a website access as a party to the proceedings, and is not
necessarily guaranteed. This ability is dependent on the operator of the online
location being notified of the application, which the statement of
compatibility notes may not be possible due to difficulties in ascertaining
their identity. Further, individuals that use the online locations for
legitimate or authorised use (some of whom may have contractual rights with the
online location to store or distribute content) would not have the ability to
be party to proceedings.
2.18
The committee previously accepted that the reduction in accessing online
copyright infringement is a legitimate objective for the purposes of
international human rights law, and that the measures are rationally connected
to that objective as the measures will inhibit access to material that breaches
copyright.
2.19
However, for the reasons listed above, the committee was concerned that
granting copyright owners the power to seek from the court an injunction
against CSPs to block particular overseas websites may not be the least rights
restrictive method of achieving the stated objective, as set out at [2.13].
2.20
The committee therefore sought the advice of the Attorney-General as to
whether the bill imposes a proportionate limitation on the right to a fair
hearing.
Attorney-General's response
The Committee has also found that the Bill engages and limits
the right to a fair hearing and has sought further advice on whether this
limitation is proportionate.
The Committee has raised the concern that the opportunity for
the operator of the online location to apply to be joined as a party is
dependent on notification by the copyright owner and there may be circumstances
in which the operator cannot be contacted despite reasonable efforts. However,
in circumstances where the identity or address of the operator cannot be
ascertained, the possibility of initiating direct proceedings against the
operator would also be precluded. Therefore, if the requirement for
notification was absolute, the copyright owner would be left with no remedy in
these cases. An important objective of the Bill is to enable copyright owners
to overcome the practical difficulties they face in taking action against
foreign online locations. This objective would not be achieved if the operator
of the online location could avoid any action by hiding their identity and
location.
The rights of users will only be affected to a limited extent
by an order. Where the user has a contractual relationship with the operator of
the online location, this relationship will govern the consequences for the
user of an injunction order which results in the blocking of the online
location and any recourse that the user may have against the operator. To the
extent that the user is denied access to legitimate information, this impact will
only be significant if the information cannot be accessed from legitimate
sources. Furthermore, the operator of the online location is not prevented from
providing a modified, legitimate source of information at a new online
location.
Therefore in my opinion, the Bill limits the right to freedom
of opinion and expression and the right to a fair hearing to an extent that is
proportionate to achieving its objective of reducing online copyright
infringement.[7]
Committee response
2.21 The committee thanks the Attorney-General for his response on the
proportionality of the measure. The committee considers that the Attorney-General's
response has demonstrated that the measure is likely to be compatible with the
right to a fair hearing. In particular, the committee notes that:
-
both CSPs and the operators of affected online locations will
be parties to the proceedings and the court can grant the operator of a website
access as a party to the proceedings;
-
if the identity or address of the operator of a website cannot
be ascertained, they may not be notified of the proceedings, however if the
requirement for notification was absolute the copyright owner would be left
with no remedy in such cases; and
-
where the user has a contractual relationship with the
operator of the online location, this relationship will govern the consequences
for the user of an injunction order.
Freedom
of Information Amendment
(New Arrangements) Bill 2014
Portfolio: Attorney-General
Introduced: House of Representatives, 2 October
2014
Purpose
2.22
The Freedom of Information Amendment (New Arrangements)
Bill 2014 (the bill) repeals
the Australian Information Commissioner Act 2010 and amends the Freedom
of Information Act 1982 (the FOI Act), the Privacy Act 1988 (the Privacy Act) and the Ombudsman
Act 1976 (the Ombudsman
Act) and other Acts.
2.23
The bill would abolish the Office of the Australian Information Commissioner (OAIC)
and amend the FOI Act and Ombudsman Act to provide
for:
-
the removal of specific external
review of FOI decisions by the OAIC, providing
instead for the Administrative Appeals Tribunal (the AAT) to have sole jurisdiction for external
merits review of FOI decisions;
-
compulsory internal
review of FOI decisions
(where available) before a matter
can proceed to the AAT;
-
the Attorney-General to take over responsibility from the OIAC for FOI guidelines, collection of FOI statistics and
the annual report on the operation of the FOI Act; and
-
the Ombudsman
to have sole responsibility for the investigation of FOI complaints.[8]
2.24
Measures raising human rights concerns or issues are set out below.
Background
2.25
The committee previously considered the bill in its Eighteenth Report
of the 44th Parliament (previous report) and requested further
information from the Attorney-General as to whether a number of measures in the
bill were compatible with human rights.[9]
Removal of review by
the OAIC
2.26
As set out above, the bill would abolish the OAIC leaving the AAT as the sole forum for external review
of FOI decisions.
2.27
Currently, review of FOI decisions
by the OAIC may commence before an internal
review process has been completed. If an applicant does not agree with the OAIC's review, they may then seek review of the decision with the AAT.
2.28
In addition, individuals who are denied a FOI request
may seek external review from the OAIC. The OAIC does not charge any fee to conduct
its reviews. In contrast,
there are generally
fees payable for access
to AAT review.
2.29
The abolition of the OAIC may engage
the right to an effective
remedy as individuals would only be able to have a FOI decision reviewed
if they can afford the AAT fees.
Right to an effective remedy
2.30
Article 2 of the International Covenant on Civil and Political Rights (ICCPR)
requires state parties to ensure access to an effective remedy for violations
of
human rights. State parties
are required to establish
appropriate judicial and administrative mechanisms for addressing claims
of human rights violations under domestic
law. Where public officials have committed
violations of rights, state parties may not relieve perpetrators from personal responsibility through amnesties or legal immunities and indemnities.
2.31
State parties are required to make reparation to individuals whose rights have been violated. Reparation can involve restitution, rehabilitation and measures of satisfaction—such as public apologies, public memorials, guarantees
of non- repetition and changes
in relevant laws and practices—as well as bringing
to justice the perpetrators of human rights violations.
2.32
Effective remedies
should be appropriately adapted
to take account of the special vulnerability of certain
categories of person including, and particularly, children.
Compatibility of the measure with the right to an effective remedy
2.33
The statement of compatibility identifies the right to an effective remedy as being engaged by the measure,
and concludes that the measure is compatible with the right.[10]
2.34
However, the committee noted in its previous report that currently
individuals may access both the OAIC and the AAT for merits review of FOI
decisions. That is, individuals are able to access two forums of merits review before needing to access the courts. The bill would therefore reduce
access to review
by removing one forum of review.
2.35
Further, there is generally
an $861 fee to access
AAT review (which can be reduced
to $100 in certain circumstances). By abolishing the OAIC and leaving the AAT as the sole avenue for external
merits review of FOI decisions, the bill would remove
access to free external merits review of most FOI decisions.
2.36
The committee's usual expectation where a measure limits a human right is that the statement of compatibility provide reasoned
and evidence-based explanations of how a measure supports a legitimate objective for human rights law purposes.
2.37
The committee considered in
its previous report that the proposed removal of specific
external review of FOI decisions by the OAIC may limit the right to an effective remedy. The statement of compatibility does not sufficiently justify that potential
limitation for the purposes of international human rights law. The committee therefore
sought the advice of the Attorney-General as to whether the removal
of access to free external merits review
of FOI decisions
is compatible with the right to an effective
remedy, and particularly,
whether the proposed changes
are aimed at achieving
a legitimate objective, whether there is a rational connection between
the limitation and that objective, and
whether the limitation
is a reasonable and proportionate measure for the achievement of that objective.
Attorney-General's response
The purpose of the Bill is to abolish the Office of the
Australian Information Commissioner (OAIC), as part of the Government's
commitment to reduce the size of government, streamline the delivery of
government services and reduce duplication. The Bill does not affect the
legally enforceable right of every person to request access to documents of an
agency or official documents of a Minister. It does not make any changes to the
objects of the Freedom of Information Act 1982 (FOI Act) or the matters
that agencies and ministers are required to consider in making decisions on FOI
requests. It simply removes an anomalous and unnecessary layer of external
merits review of FOI decisions.
The dual layers of merits review was examined in the 2013
report on the Review of the Freedom of Information Act 1982 and the
Australian Information Commissioner Act 2010 (Hawke FOI Review). The report
noted that a number of submissions to the review, including that of the OAIC,
questioned whether having access to three levels of merits review was the most
efficient model for reviews of FOI decisions. A multiple review process where
applicants can access a range of dispute resolution mechanisms can be confusing
and creates complexity which adds to the resource burden for both applicants
and FOI decision makers.
The establishment of the OAIC created an unnecessarily
complex, multi-levelled system resulting in duplication of complaint handling
and significant processing delays. These issues have existed from conception
and are inherent in the design of the system, as opposed to practice or
procedure of the OAIC. No amount of time to consolidate practices or refine
procedures would redress the underlying issues with the system.
Prior to the establishment of the OAIC, there was compulsory
internal review of FOI decisions before an applicant could apply for merits
review at the Administrative Appeals Tribunal (AAT). Since the commencement of
the OAIC, internal review has been available, but not compulsory, prior to
seeking review in the OAIC.
Under the new arrangements, the AAT will have sole
responsibility for external merits review of FOI decisions as it did for thirty
years from commencement of the FOI Act in 1982 until the establishment of the
OAIC in 2010. If an FOI applicant is not satisfied with an agency decision,
they can apply for an internal review of the decision. There is no application
fee for an internal review.
Compulsory internal review will ensure access to low-cost and
timely review for applicants. It also provides an opportunity for agencies to
reconsider the merits of the initial decision and give agencies primary
responsibility for overseeing original FOI decisions. Following the abolition
of the OAIC, agencies will again have sole responsibility for the initial review
of agency decisions. If an applicant is not satisfied with an internal review
decision, they may then apply to the AAT for an external review of the
decision.
No changes are proposed for the AAT application fee under the
new arrangements for FOI reviews. While there is a reduced fee of $100 that
applies in cases of hardship, there are also circumstances where no application
fee is payable. This includes where the FOI review relates to a decision about
Commonwealth workers' compensation, family assistance and social security
payments and veteran's entitlements. Further information is provided in the
enclosed extract from the AAT website [see Appendix 1]. Consistent with other
AAT matters, a successful applicant before the AAT will receive a refund of all
but $100 of the application fee.
It is appropriate that the existing fee regime applies to FOI
applicants in the same way as it applies to other government decisions being
reviewed by the AAT. Requiring the payment of a fee for an AAT application may
also lead to consideration by applicants of whether or not seeking review is
appropriate in the circumstances, rather than simply an automatic response to
an agency decision that is not favorable to the applicant.
The Bill corrects the fundamental problems in the current
system by streamlining FOI regulation to remove a layer of unnecessary external
merits review. By doing so, the Bill brings the process into line with review
arrangements for other government decisions. This will mean that FOI applicants
will no longer need to navigate a complex multi-level system nor be subject to
significant processing delays.
As noted above, under the new arrangements those applicants
who wish to seek review of the initial FOI decision will be able to seek
internal review of the decision. Where a party is not satisfied with the
internal review decision, there is a further right of review to the AAT. There
is a further right of appeal to the Federal Court of Australia on a question of
law from a decision of the AAT and the AAT is also able to refer a question of
law to the Federal Court during a review.
Those applicants who wish to make a complaint about agency
processing under the FOI Act will be able to make their complaint directly to
the Ombudsman, who will take over the OAIC's role of investigating FOI
complaints.
In my view the removal of a layer of external merits review
does not impinge on the right to an effective remedy for FOI applicants. The
continued availability of internal review, external merits review, access to
judicial review and a right of complaint to the Ombudsman ensures comprehensive
access to an effective remedy.
The new arrangements were to commence on 1 January 2015.
However, as the Bill is still before the Parliament, the OAIC remains
responsible for privacy and FOI regulation and continues to exercise its
functions under both the Privacy Act 1988 and the Freedom of
Information Act 1982 (FOI Act).
Resources are being reappropriated to the OAIC for the
remainder of 2014-15 to allow it to continue the exercise of privacy and FOI
functions, and the OAIC will also receive an appropriation in 2015-16 for these
functions.
The OAIC has implemented a streamlined approach for
applications for merits review of FOI decisions. Straightforward matters are
being finalised by the OAIC, and where appropriate more complex or voluminous
matters are being referred to the AAT if the Information Commissioner decides
that it is desirable in the interests of the administration of the FOI Act that
the matter be reviewed instead by the AAT. In such an event, an applicant may
apply to the AAT in accordance with regular AAT procedures. All new FOI
complaints are being referred to the Ombudsman.
The appointment of the Information Commissioner ends at the
end of October 2015. If the Bill has not passed by then, the Government will
ensure that arrangements are in place for the continued exercise of all of the
Information Commissioner functions. The former Freedom of Information
Commissioner, Dr James Popple, was appointed as a full-time Senior Member of
the AAT on 1 January 2015. Dr Popple has been appointed until 31 December 2017.[11]
Committee response
2.38 The committee thanks the Attorney-General for his response. The
committee considers that the response demonstrates that the measures are likely
to be compatible with the right to an effective remedy. In particular, the
committee notes that the bill would:
-
not affect the legally enforceable right to request access to
documents of a government agency or official documents of a minister;
-
not make any changes to the objects of the FOI Act or the
matters that agencies and ministers are required to consider in making
decisions on FOI requests; and
-
maintain merits review of decisions to refuse a FOI request
through the AAT.
2.39 The committee also notes the Attorney-General's advice that there are
a number of circumstances where no application fee is payable to the AAT,
including where an FOI decisions relates to a decision about Commonwealth
workers' compensation, family assistance and social security payments and
veteran's entitlements.
2.40 The committee has concluded its examination of the bill.
Migration Amendment (Strengthening
Biometrics Integrity) Bill 2015
Portfolio:
Immigration and Border Protection
Introduced:
House of Representatives, 5 May 2015
2.41
The Migration Amendment (Strengthening Biometrics Integrity) Bill 2015
(the bill) seeks to amend the Migration Act 1958 (the Migration Act) to
implement a number of reforms to the provisions relating to the collection of
personal identifiers. Specifically, the amendments to the Migration Act
include:
-
replacing the eight existing personal identifier collection
powers with a broad, discretionary power to collect one or more personal
identifiers or biometric data from non-citizens, and citizens at the border,
for the purposes of the Migration Act and the Migration Regulations 1994 (the
Migration Regulations);
-
allowing flexibility in relation to the types of personal
identifiers (as defined in the existing legislation) that may be required, the
circumstances in which they may be collected, and the places where they may be
collected;
-
enabling personal identifiers to be provided either by way of an
identification test, or by another way specified by the minister or officer
(such as a live scan of fingerprints on a handheld device);
-
enabling personal identifiers to be required by the minister or
an officer, either orally, in writing, or through an automated system, and
allow for existing deemed receipt provisions in the Migration Act to apply in
relation to requests in writing; and
-
enabling personal identifiers to be collected from minors and
incapable persons for the purposes of the Migration Act and Migration
Regulations under the new broad collection power without the need to obtain the
consent, or require the presence of a parent, guardian or independent person
during the collection of personal identifiers.
2.42
Measures raising human rights concerns or issues are set out below.
Background
2.43
The committee previously considered the bill in its Twenty-Second
Report of the 44th Parliament (previous report) and requested
further information from the Minister for Immigration and Border Protection as
to whether a number of measures in the bill were compatible with human rights.[12]
Broad discretionary power to collect biometric data
2.44
The powers to collect biometric data or personal identifiers from an
individual is currently authorised under eight separate sections of the
Migration Act depending on the particular circumstances. The bill would replace
these powers with a broad discretionary power to collect personal identifiers
in proposed section 257A of the Migration Act.[13]
Personal identifiers include fingerprints, handprints, measurements of height
and weight, photographs or images of a person's face and shoulders, an audio or
visual recording of a person, an iris scan, a person's signature or other
identifiers specified by regulation.[14]
The power would provide that the minister or an officer may require a person to
provide one or more personal identifiers for the purposes of the Migration Act
or Migration Regulations.[15]
2.45
The committee considers that these measures engage and limit the right
to privacy, the right to equality and non-discrimination and the right to
equality before the law.
Right to privacy
2.46
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interferences with an individual's
privacy, family, correspondence or home. The right to privacy includes:
-
the right to personal autonomy and physical and psychological
integrity over one's own body;
-
the right to respect for private and confidential information,
particularly the storing, use and sharing of such information;
-
the prohibition on unlawful and arbitrary state surveillance.
2.47
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measure with
the right to privacy
1.7 The
committee considered in its previous report that as the proposed power expands
the circumstances in which biometric data or personal identifiers may be
collected the power engages and limits the right to privacy. The statement of
compatibility acknowledges that the measure engages and limits the right to privacy
but argues that this limitation is justifiable.[16]
2.48 The committee agreed that 'ensuring the integrity of Australia's borders
and visa system' may be regarded as a legitimate objective for the purposes of
international human rights law. However, it considered that while the proposed
power appears to be rationally connected to the stated objective it may not be
a proportionate means to achieve this stated objective.
2.49
The committee therefore requested the advice of the Minister for
Immigration and Border Protection as to whether the measure is a proportionate
means of achieving the stated objective.
Minister's response
The approach in the Bill is proportionate as personal
identifiers can only be collected for a purpose set out in the Migration Act
1958 or Migration Regulations 1994. These legislated purposes ensure
the collection of personal identifiers is not done arbitrarily, and are
necessary to the Department's functions and activities. As stated in the
Explanatory Memorandum to the Bill, the Department collected an additional
personal identifier (i.e., fingerprints) from less than two percent of people
granted a visa in 2013/14. This very small number evidences that the current
purpose for the collection of personal identifiers is appropriate and limited
to legitimate needs to not only verify identity, but also to conduct necessary
immigration, security and law enforcement checks to protect the Australian
community.
The Bill expands the circumstances in which personal
identifiers may be collected beyond those currently set out in the Migration
Act:
-
visa decision-making (sections 40
and 46) - non-citizens only;
-
at Australia's border, on entry or
departure from Australia, or travel from port to port on an overseas vessel
(sections 166, 170 and 175)- citizens and non-citizens;
-
evidencing that a non-citizen
holds a lawful visa (section 188) and when a non-citizen is being detained on
the basis that they hold a visa that is subject to cancellation on certain
grounds (section 192) - non-citizens only; and
-
immigration detention
decision-making (section 261AA)- non-citizens only.
The Bill does not:
-
add new types of personal
identifiers that the Department is authorised to collect
-
expand the circumstances where
Australian citizens can be required to provide personal identifiers to
locations other than the border
-
amend the existing legislative
rules and public scrutiny that the Department's handling of personal
identifiers is subject to.
Developments in biometric technologies are at the forefront
of the reforms in the Bill. Technological innovation now allows the Department
to collect personal identifiers quickly, using non-intrusive scanners and other
devices. Yet, the Department cannot utilise this new technology effectively
because of limitations in current legislation. The Bill authorises the use of
verification checks that take advantage of advances in biometric technology
collection.
A verification check is a non-invasive, quick scan of a
person's fingers using a hand-held mobile scanner. A verification check is able
to be completed in approximately 30 seconds.
The Department currently collects personal identifiers,
namely a facial image and fingerprints, by a time-consuming identification
test. It is impractical to use identification test procedures at Australia's
border because it is:
-
time consuming - the current
process that involves collecting both facial-image and 10 fingerprints may take
30-60 minutes to complete; and
-
ineffective as the Department does
not have resources to conduct more than a few identification tests per flight.
The safeguards that apply to an identification test are not
necessary for a verification check, noting that unlike an identification test a
person's biometric information is not retained after the completion of a
verification check. The Department has been conducting verification checks in
public at two international airports since 2012. More than 12,000 checks have
been conducted on a consent basis, without incident, indicating the broad
acceptance of the check among travellers. Conducting verification checks in
public is consistent with other technology-enabled checks currently conducted
in public at airports, such as the explosives trace detection test that is
accepted by the travelling public as a necessary part of the overall security
apparatus at airports.
Collecting personal identifiers by a means of a verification
check provides the Department with flexibility to meet the increasing
challenges at Australia's borders to identify persons of concern and conduct
appropriate security checks accurately and quickly, and in a way that does not
burden legitimate travellers. A verification check is efficient and quick. Only
those individuals identified as being of higher risk would be subject to a
verification check.
Officers conducting verification checks must act in
accordance with the Australian Public Service Code of Conduct and the
Department's professional integrity framework. Administrative and criminal
penalties may apply for breaches.[17]
Committee's response
2.50
The committee thanks the minister for his response. The committee
notes the minister's statement that the bill is proportionate as personal
identifiers can only be collected for a purpose set out in the Migration Act or
Migration Regulations 1994. In its initial analysis, the committee noted
that the powers in the bill were not constrained by a requirement that the
collection of the identifier be considered necessary in the circumstances or
that an officer must be reasonably satisfied that the collection would assist
in the identification of an individual. These specific concerns are not
addressed in the minister's response.
2.51
The committee agreed that the measures have a legitimate objective and
that the measures were rationally connected to that objective. The committee
notes that the developments in biometric technologies are a key driver of these
reforms. The committee agrees that our customs and immigration authorities
should have access to the latest technology in order that appropriate and
necessary identification checks are able to be undertaken in the most efficient
and least intrusive manner.
2.52
However, under international human rights law, in order to use
technology in a manner that limits a person's right to privacy, there must be
appropriate safeguards and the approach taken must be the least rights
restrictive method to achieve appropriate identity checks.
2.53
The bill does not limit the use of identification checks to
circumstances where the collection of the identifier is considered necessary in
the circumstances or that an officer is reasonably satisfied that the
collection would assist in the identification of an individual. Accordingly,
the legislation permits a broader use of identification checks than is
necessary in all the circumstances and therefore does not impose a
proportionate limitation on the right to privacy.
2.54
In its initial analysis, the committee also noted that the measures in
the bill, in addition to allowing the collection of personal identifier by an
authorised identification test, would allow personal identifiers to be
collected in a manner 'specified by the minister or officer'. If personal
information is collected in this way, particular safeguards provided for under
the Act, such as that the identification test be 'must be carried out in circumstances affording reasonable privacy
to the person' would not apply.[18]
2.55
The minister's response notes that this power will be used to undertake
verification checks of fingerprints which are currently done with an individual's
consent at two airports. The minister states that the safeguards that apply to
identification checks are not required for verification checks because:
-
the biometric information is not retained; and
-
conducting the tests in public is consistent with other checks
done in public such as the explosives trace detection test.
2.56
While the stated intended use of the power in the bill to conduct fingerprint
checks may appear reasonable and appropriately circumscribed, the actual powers
available under the bill are not so limited. The bill would permit the
collection of any of the personal identifiers provided for under the Migration
Act or by regulation and in any manner specified by the minister without any of
the safeguards that apply to identification tests. The minister's response
states that the current verification check is a non-invasive, quick scan of a
person's fingers using a hand-held mobile scanner. No reasons have been given
as to why the bill has not been drafted in a way to restrict the power to the
circumstances stated by the minister. The committee considers that the minister's
response has not demonstrated that this broad power imposes a necessary or
proportionate limitation on the right to privacy.
2.57 Some committee members consider that the broad discretionary power to
collect personal identifiers engages and limits the right to privacy. As noted
above, the minister's response has not sufficiently justified this limitation
for the purposes of international human rights law. These committee members
therefore consider that the broad discretionary power to collect personal
identifies may be incompatible with the right to privacy.
2.58 However, some committee members noted the minister's advice that
personal identifiers can only be collected for a purpose set out in the Migration
Act 1958 or Migration Regulations 1994, and consider that the measure is
justified.
Right to equality and
non-discrimination
2.59
The rights to equality and non-discrimination are protected by articles
2, 16 and 26 of the ICCPR.
2.60
These are fundamental human rights that are essential to the protection
and respect of all human rights. They provide that everyone is entitled to
enjoy their rights without discrimination of any kind, and that all people are
equal before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
2.61
The ICCPR defines ‘discrimination’ as a distinction based on a personal
attribute (for example, race, sex or religion),[19]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[20]
The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral on its face or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[21]
Compatibility of the measure with
the right to equality and non-discrimination
2.62
The statement of compatibility acknowledges that the measures may engage
the right to equality and non-discrimination. As set out at paragraph [2.48]
above, the committee agrees that the measure may pursue a legitimate objective
for the purposes of international human rights law.
2.63
The statement of compatibility does not explain whether 'risk-based and
intelligence-based targeting' may have a disproportionate or unintended
negative impact on particular groups based on race or religion and therefore be
potentially indirectly discriminatory. Where a measure impacts on particular
groups disproportionately, it establishes prima facie that there may be
indirect discrimination.
2.64
If a provision has a disproportionate negative effect or is indirectly
discriminatory it may nevertheless be justified if the measure pursues a
legitimate objective, the measure is rationally connected to that objective and
the limitation on the right to equality and non-discrimination is a
proportionate means of achieving that objective. The statement of compatibility
does not justify the possible limitation on the right to equality and
non-discrimination imposed by 'targeting' and profiling.
2.65
The committee therefore requested the advice of the Minister for
Immigration and Border Protection as to whether the measure is a proportionate
means of achieving the stated objective.
Minister's response
It is the Government's view that the Bill is not
discriminatory in its purpose or its impact. Individuals are not currently
targeted for additional scrutiny at Australia's borders because of any single
characteristic, such as religion or nationality, and the Bill provides no
change to the current approach.
The Department has developed a range of sophisticated and
innovative tools and capabilities to analyse risk when making visa application
decisions and when people are crossing Australia's border. These mathematical,
statistical and intelligence techniques produce evidence-based data that can be
used to detect persons of higher risk. Examples where these tools are used
include where a person:
-
'fails' automated immigration
clearance through Smartgate or a manual face-to-passport check, because their
facial image does not 'match' the passport photo or the passport is listed as 'stolen';
-
an alert is triggered against the
Department's Central Movement Alert List; and
-
matches a profile (e.g., a person
might match a profile for identity fraud, which may include combinations or
patterns of a range of variables, such as age or where and how a ticket was
purchased).
These same tools and capabilities will continue to be used to
detect persons of risk. Under the Bill, the Department will be able to respond
to such risks more effectively by using biometrics to resolve identity and
security concerns, rather than relying on paper-based documents.[22]
Committee's response
2.66
The committee thanks the minister for his response. The committee
notes that the minister's response does not address the specific concern raised
by the committee in its initial analysis that 'risk-based and
intelligence-based targeting' may have a disproportionate or unintended
negative impact on particular groups based on race or religion and therefore be
potentially indirectly discriminatory.
2.67
The response states that mathematical, statistical and intelligence
techniques produce evidence-based data that can be used to detect persons of
higher risk. The response does not explain whether such tools result in more
persons of a particular nationality or religious belief being identified as
higher risk. Where a measure impacts on particular groups disproportionality,
it establishes prima facie that there may be indirect discrimination.
2.68
If a provision has a disproportionate negative effect or is indirectly
discriminatory it may nevertheless be justified if the measure pursues a
legitimate objective, the measure is rationally connected to that objective and
the limitation on the right to equality and non-discrimination is a
proportionate means of achieving that objective.
2.69 The committee considers that the broad discretionary power to collect
personal identifiers may engage and limit the right to equality and non-discrimination
particularly in relation to profiling and targeting of individuals for
scrutiny. However, the committee notes the minister's assurance that
such powers are used by the department only on the basis of objective evidence
using highly sophisticated operational tools. Accordingly, the committee
considers that the powers may be compatible with the right to equality and
non-discrimination.
Right to equality before the law
2.70
The right to equality before the law is protected by article 26(1) of
the ICCPR.[23]
It is an important aspect of the right to equality and non-discrimination.
2.71
The right to equality before the law provides that law must not be
applied by law enforcement authorities or the judiciary in an arbitrary or
discriminatory manner.[24]
Compatibility of the measure with
the right to equality before the law
2.72
The committee previously considered that the measure engages and may
limit the right to equality before the law. This is because, unless there are
sufficient safeguards, the collection of personal identifiers has the
potential, in practice, to be applied in a manner which may target, for
example, persons with certain physical characteristics or particular national
or ethnic origins.[25]
2.73
Where this kind of targeting occurs, without objective or reasonable
justification, it will be incompatible with the right to equality before the
law. That is, it may result in the law being applied in ways that are arbitrary
or discriminatory. This form of targeting is often referred to as racial
profiling.[26]
2.74
As set out at paragraph [2.48] above, the committee agrees that the
measure may pursue a legitimate objective for the purposes of international
human rights law. However, the committee considered that information as to how
the risk-based and intelligence based-targeting will be undertaken in practice
will be critical to assessing whether such practices impose a proportionate
limitation on the right to equality before the law.
2.75
The committee therefore requested the advice of the Minister for
Immigration and Border Protection as to whether the measure is compatible with
the right to equality before the law and particularly whether the limitation is
a proportionate measure for the achievement of that objective.
Minister's response
As stated above, the same tools and capabilities that are
currently used to detect persons of risk will continue to be used and the Bill
makes no changes to the methods used to identify persons who may be requested
to provide their personal identifiers to resolve concerns about a person's
identity or their immigration, security or criminal histories. The Bill will
authorise the use of new technology to conduct a more accurate, faster and
higher-integrity check using a fingerprint scan in less than one minute.
The recent case of the convicted terrorist Khaled Sharrouf,
who in December 2013 used his brother's passport to leave Australia to participate
in terrorist-related activities, illustrates the need to expand the use of
fingerprint-based checks to resolve concerns at the border. Under the Bill, the
Department will be able to respond to such risks more effectively and quickly
by using a verification check to resolve identity and security concerns.[27]
Committee's response
2.76
The committee thanks the minister for his response. The committee
notes that the minister's response refers to the information provided in
relation to the right to equality and non-discrimination. The committee
considers that similar issues arise from the response in relation to the right
to equality to those set out above.
2.77 The committee considers that the broad discretionary power to collect
personal identifiers may engage and limit the right to equality before the law,
particularly in relation to profiling and targeting of individuals for
scrutiny. However, the committee notes the minister's assurance that such
powers are used by the department only on the basis of objective evidence using
highly sophisticated operational tools. Accordingly, the committee considers
that the powers may be compatible with the right to equality before the law.
Removal of restrictions on the collection of personal identifiers from
minors
2.78
The bill seeks to remove the current restrictions on collection of
personal identifiers of minors. Specifically the measure would allow for the
collection of personal identifiers of children under the age of 15 without the
presence of a parent, guardian or independent person.
2.79
The committee considers that the measure engages and limits the rights
of the child.
Rights of the child
2.80
Children have special rights under human rights law taking into account
their particular vulnerabilities. Children's rights are protected under a
number of treaties, particularly the Convention on the Rights of the Child
(CRC). All children under the age of 18 years are guaranteed these rights. The
rights of children include:
-
the right to develop to the fullest;
-
the right to protection from harmful influences, abuse and
exploitation;
-
family rights; and
-
the right to access health care, education and services that meet
their needs.
2.81
States parties to the CRC are required to ensure to children the
enjoyment of fundamental human rights and freedoms and are required to provide
for special protection for children in their laws and practices. In
interpreting all rights that apply to children, the following core principles
apply:
-
rights are to be applied without discrimination;
-
the best interests of the child are to be a primary
consideration;
-
there must be a focus on the child's right to life, survival and
development, including their physical, mental, spiritual, moral, psychological
and social development; and
-
there must be respect for the child's right to express his or her
views in all matters affecting them.
Compatibility of the measure with
the rights of the child
2.82
The statement of compatibility explains that when the original personal
identifiers provisions were added to the Migration Act in 2003 it was
considered by the government that 15 years of age was an appropriate minimum age
for the collection of fingerprints. The statement of compatibility further
explains that the government no longer considers this appropriate for a number
of reasons.
2.83
The committee previously agreed with the statement of compatibility that
the amendments have the dual legitimate objective of maintaining effective
immigration controls and the protection of vulnerable minors, and that the
measures are rationally connected to the legitimate objective.
2.84
However, the committee considered that the statement of compatibility
has not sufficiently explained why it is necessary to provide broad
discretionary powers with few statutory safeguards. The committee therefore
considered that the measure had not been justified as proportionate.
2.85
The committee therefore requested the advice of the Minister for
Immigration and Border Protection as to whether the measure is a proportionate
means of achieving the stated objective.
Minister's response
The Bill aims to amend existing consent and presence
requirements for minors to protect vulnerable children from trafficking and
exploitation, and detect radicalised individuals who may seek to harm the Australian
community.
The Department is currently prohibited by law from collecting
certain types of personal identifiers from minors under the age of 15 years. In
locations away from Australia's border, the Migration Act currently requires
that a parent, guardian or independent person must consent to, and be present
for, the collection of personal identifiers from minors. This means that a
parent, guardian or independent person can prevent the Department from
collecting personal identifiers from a minor by refusing consent or refusing to
be present with a minor during collection of personal identifiers.
Allowing the current consent and presence requirements to
remain unaltered reduces the effectiveness of using personal identifiers to
combat identity fraud, including trafficking, and to detect undisclosed adverse
security, law enforcement and/or immigration information of minors. The reasons
for the amendments relating to minors are already outlined in the Explanatory
Memorandum and Statement of Compatibility with Human Rights for the Bill. These
include:
-
improved integrity of identity
data to more accurately identify that the right person is subject to action,
and not another person who is misidentified;
-
greater consistency with partner
countries where fingerprints are collected based on operational policy
-
enabling the case-by-case
collection of personal identifiers from individual minors identified as of
concern
-
more protection for children who
have been, or who are at risk of being trafficked
-
effectively addressing the current
problem of a person claiming to be a minor under 15 years of age to avoid
identity, security, law enforcement and immigration checks that would otherwise
apply
-
detecting radicalised minors who
are returning after participating in conflicts in the Middle East and
elsewhere, where an increasing number of cases are evident, including some now
reported in the media and are involved in violent extremism.
It is anticipated that the Bill will impact on only a small
number of minors in specific circumstances, including:
-
offshore to protect minors from
people smugglers and traffickers;
-
on entry and departure at
Australia's border in certain circumstances where a minor is identified as at
risk or as of concern; and
-
applicants from the Refugee and
Humanitarian caseload, who are a particularly vulnerable group.
Existing safeguards in the Migration Act relating to access,
disclosure and retention of biometrics will continue to provide robust
protections for all people affected by amendments in the Bill, including
minors. The Department will implement additional policy guidelines that provide
guidance to officers on how the new power to collect personal identifiers is to
be exercised. The policy guidance will cover how personal identifiers are to be
collected from minors and it will ensure that this is done in a respectful way.
The policy guidance will be publicly available.[28]
Committee's response
2.86
The committee thanks the minister for his response. The committee
noted in its initial analysis that the statement of compatibility had not
sufficiently explained why it is necessary to provide broad discretionary
powers with few statutory safeguards if the intention is that minors would
usually be fingerprinted with the consent and/or presence of the minor's
parents or guardians. It would, for example, be possible to have an exceptions
based provision that would permit fingerprinting in more limited circumstances.
The minister's response has not specifically addressed this concern.
2.87
The proposed provisions do not require a guardian or independent
observer to be present during the collection of personal identifiers thus
creating a situation where an unaccompanied child is required to look after
their own interests in a system they are unfamiliar with. There is also no
specific legislative requirement that the personal identifiers be collected in
the least intrusive manner possible nor a requirement that younger children are
not unnecessarily separated from their parent or guardian.
2.88
The committee notes that the minister's response explains that the
department will implement additional policy guidelines to guide officers on how
the new power to collect personal identifiers is to be exercised. The committee
welcomes such guidance. However, international human rights law generally
requires that appropriate safeguards be included in legislation. The committee
remains concerned that the bill gives a broad discretionary power to collect
personal identifiers from minors with few statutory safeguards.
2.89 The committee considers that removing the current restrictions on the
collection of personal identifiers on minors engages and limits the obligation
to consider the best interests of the child as a primary consideration. As
noted above, the minister's response has not sufficiently justified this
limitation for the purposes of international human rights law. The committee
therefore considers that the power to collect personal identifiers from minors
without the presence of their parent or guardian may be incompatible with the
obligation to consider the best interests of the child.
Safety,
Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill
2015
Portfolio: Employment
Introduced: House of Representatives, 25 March 2015
Purpose
2.90
The Safety, Rehabilitation and Compensation Amendment (Improving the
Comcare Scheme) Bill 2015 (the bill) amends the Safety, Rehabilitation and
Compensation Act 1988 (the Act) in relation to:
-
eligibility requirements for compensation;
-
the financial viability of the Comcare scheme;
-
medical expense payments;
-
requirements for determining compensation payable;
-
household and attendant care services;
-
suspension of compensation payments for certain citizens absent
from Australia;
-
taking or accruing leave while on compensation leave;
-
calculation of compensation payments;
-
the compulsory redemption threshold;
-
legal costs for proceedings before the Administrative Appeals
Tribunal;
-
compensation for permanent impairment;
-
single employer licences;
-
gradual onset injuries and associated injuries;
-
obligations of mutuality; and
-
exception of defence-related claims from certain changes.
2.91
The bill also amends the Military, Rehabilitation and Compensation
Act 2004, Safety, Rehabilitation and Compensation Act 1988 and Seafarers
Rehabilitation and Compensation Act 1992 in relation to the vocational
nature of rehabilitation services and return to work outcomes.
2.92
The bill additionally amends the Administrative Decisions (Judicial
Review) Act 1977 to provide that decisions relating to compensation
paid for detriment caused by defective administration are not subject to
review.
2.93
Measures raising human rights concerns or issues are set out below.
Background
2.94
The committee previously considered the bill in its Twenty-second
Report of the 44th Parliament (previous report), and requested
further information from the Minister for Employment as to whether the bill was
compatible with Australia's international human rights obligations.[29]
Redefining work related injuries (Schedule 1)
2.95
Schedule 1 of the bill would tighten the eligibility criteria for
accessing Comcare by reducing the number of injuries and diseases that will be
compensable under the Act. Currently where a condition, such as a heart attack
or stroke occurs at the workplace that is sufficient for workers' compensation
liability to exist. The bill would change these criteria so that workers'
compensation is only available where either an underlying condition or the
culmination of that condition is significantly contributed to by the employee's
employment.
2.96
The committee considers that the measure engages and limits the right to
social security and the right to health.
Right to social security
2.97 The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right recognises the importance of adequate social benefits in reducing the
effects of poverty and plays an important role in realising many other
economic, social and cultural rights, particularly the right to an adequate
standard of living and the right to health.
2.98
Access to social security is required when a person has no other income
and has insufficient means to support themselves and their dependents.
Enjoyment of the right requires that sustainable social support schemes are:
-
available to people in need;
-
adequate to support an adequate standard of living and health
care; and
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent; and
-
affordable (where contributions are required).
2.99 Under article 2(1) of ICESCR, Australia has certain obligations in
relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.100 Specific situations which are recognised as engaging a person's right to
social security, include health care and sickness; old age; unemployment and
workplace injury; family and child support; paid maternity leave; and
disability support.
Right to
health and a healthy environment
2.101 The right to
health is guaranteed by article 12(1) of ICESCR, and is fundamental to the
exercise of other human rights. The right to health is understood as the right
to enjoy the highest attainable standard of physical and mental health, and to
have access to adequate health care and live in conditions that promote a healthy
life (including, for example, safe and healthy working conditions; access to
safe drinking water; adequate sanitation; adequate supply of safe food,
nutrition and housing; healthy occupational and environmental conditions; and
access to health-related education and information). As set out above in
relation to the right to social security, under article 2(1) of ICESCR,
Australia has certain minimum obligations in relation to the right to health
(see paragraph [2.99]).
Compatibility of the measure with the right to social
security and the right to health
2.102
The statement of compatibility states that the measure engages and
limits the right to social security and the right to health.[30]
The statement of compatibility for the bill does not provide sufficient
information to establish that the measure pursues a legitimate objective for
human rights purposes (that is, addresses a pressing or substantial concern). The
committee therefore sought the advice of the Minister for Employment as to whether
the proposed changes are aimed at achieving a legitimate objective, whether
there is a rational connection between the limitation and that objective, and
whether the limitation is a reasonable and proportionate measure for the
achievement of that objective.
Minister's response
Redefining work related
injuries (Schedule 1)
Right to social security
Right to health and a
healthy environment
At paragraph 1.304, the Committee
requested further information to show that 'redefining work related injuries
... pursues a legitimate objective'.
Schedule 1 to the Bill contains
amendments to the Safety, Rehabilitation and Compensation Act 1988 (SRC
Act) which tighten the criteria which must be satisfied before particular
injuries, such as heart attacks, strokes or spinal disc injuries, are
compensable as work-related injuries.
Article 9 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) provides for
the right to social security, including the right to social insurance. General
Comment 19 elaborates on the right of social insurance in the context of
workers' compensation: 'States parties should also ensure the protection of
workers who are injured in the course of employment or other productive work.'[31]
The legitimate objective of these amendments is to more clearly define when an
injury occurs 'in the course of employment or other productive work' for the
purposes of eligibility for workers' compensation. This is to ensure that an
employer's liability will not extend to diseases or injuries that are
manifestations of underlying medical conditions which have no significant basis
in employment.
The Committee requested further
information on the sustainability of the Comcare scheme and the ability of
insured employers to meet premium increases.
The Comcare scheme has come under
increasing financial pressure. A $687 million deficit (based on the asset
to liability ratio) in 2011-2012 was identified following a change in actuarial
model in 2011-2012. It was driven by reductions in market interest rates and
increases in average claims costs. There have been sharp increases in the
premiums charged to Commonwealth entities and authorities. In February 2015,
the ACT government announced its intention to leave the scheme due to the high
premium costs resulting from a 180 per cent increase in nine years to
$97 million for 2014-2015.
Successive governments have
applied an efficiency dividend to the resourcing of government agencies. For
the past decade, this has averaged 1.88 per cent. In essence this means that,
after allowing for changes in responsibilities, agencies' administrative
funding has declined in real terms each year. At the same time, Comcare
premiums have risen by 50 per cent over the four year period from
2010-11to2013-14. This has put significant pressure on agencies.
Rational connection between
measure and objective
The rational connection between
the legitimate objective and these amendments is to distinguish between heart
attacks, strokes and spinal disc injuries which are connected to employment
only because they happened to occur at the workplace, and those which are
significantly contributed to by a person's employment.
Measure is a reasonable and
proportionate means of achieving the objective
The amendments are reasonable
because they seek to clarify the injuries which are attributable to employment.
The amendments are proportionate because they maintain coverage under the
Comcare workers' compensation scheme for injuries which have a sufficient nexus
to employment. Historically, heart attacks, strokes and some spinal disc
injuries were considered to be the culmination of a disease and therefore the
'significant contribution test' was applied to determine liability for
compensation. In Health Insurance Commission v Van Reesch [1996] FCA
1118, the Full Federal Court applied the High Court decision in Zickar v MGH
Plastic Industries Pty Limited [1996] HCA 31 to the 1971 Act (the
predecessor to the SRC Act) and, by implication of its relevant terms, to the
SRC Act. The High Court in Zickar held that the sudden rupture of blood
vessels was an 'injury'. In applying Zickar, the Full Court noted that a
spinal disc prolapse, which was not an inevitable consequence of a pre-existing
back condition, could also properly be identified as an 'injury'. As a result
the range of compensable injuries has considerably expanded.
The Committee requested further
information on other support available to individuals who are injured or unwell
and who would no longer be eligible for workers' compensation.
The purpose of workers'
compensation is to give greater protection and security to workers against
injury, illness and death occurring in the course of employment. It is not a
substitute for a social security/welfare system. For people who are not
eligible for workers' compensation for injuries, because their injury was not
caused by their employment, social security/welfare payments will continue to
be available. The Commonwealth's disability support and discrimination,
superannuation, social security and health care legislation all maintain a
person's right to health and social security support.
Social Security
Australia's social security
system provides payments for those unable to work, either partially or wholly,
because of injury/illness, including access to:
-
the Disability Support Pension,
which provides financial support where there is a physical, intellectual or
psychiatric condition that prevents a person from working, or if a person is
permanently blind
-
the Sickness Allowance, which is a
short-term payment to a person who is employed or self-employed, but who
temporarily cannot work or study because of a medical condition
-
the Mobility Allowance, which
helps a person participate in approved activities where a person has a
disability, illness or injury – the allowance helps with transport costs if a
person uses public transport without substantial assistance, either permanently
or for an extended period
Australia's
social security system also provides for a carer's allowance and payment. If a
person's medical condition is such that they require care in the home, their
relatives/partner may receive a carer's allowance through the Australian
Government social security system. The carer payment is an income support
payment for people who personally provide constant care in the home of someone
with a severe disability or illness.
Australian
Government services that are available nationally to persons with a disability
or injured as a result of a non-work related injury include Job Access and
employment services such as Disability Employment Services (DES),
jobactive and the Remote Jobs and Communities Program (RJCP). JobAccess
is a free information and advice service about the employment of people with
disability. JobAccess helps people with disability, employers, service
providers and the community to access information about services, financial
assistance and workplace solutions.
Disability
Employment Services, jobactive and Remote Jobs and Communities Program
The
services that are available to persons injured as a result of a non-work
related injury include DES to help all eligible job seekers with disability,
injury or health condition to prepare for, find and keep a job. DES providers
develop return-to-work plans and work with the person and their employer (if
the person is employed) to ensure all the supports are in place the keep them
in employment. If the person is not employed they develop a return-to-work plan
to assist the person to secure appropriate new employment. Examples of the
types of on-the-job supports provided include on-the-job training, co-worker
and employer support, access to incentives for the employer, free workplace
modifications and adjustments to cater to the employees' restrictions.
Alternatively, many people with a disability are supported by jobactive
providers to find employment.
jobactive
On 1 July
2015, the Australian Government is introducing new employment services called
jobactive to better meet the needs of job seekers and employers and improve job
outcomes.
Job seekers
will have access to tailored help from a jobactive organisation, based on their
assessed needs. This could include:
-
help looking for work, writing a
resume and preparing for interviews
-
referrals to jobs in their local
area
-
training that is suited to the
skills that local employers need
-
case management so that job
seekers are ready to take up and keep a job
-
support to complete Work for the
Dole or other eligible activities to provide them with work-like experiences,
to help them learn new skills and improve their chances of finding a job.
RJCP
The RJCP
provides a jobs, participation and community-development service in 60 remote
regions across Australia. The programme supports people to build their skills
and get a job or to participate to their capacity in activities that contribute
to the strength and sustainability of communities. It also helps remote-area
employers to meet their workforce needs and supports communities in remote
Australia to plan and build a better future.
Key
features of RJCP are:
-
Employment and participation
activities, including personalised support for job seekers;
-
The Remote Youth Leadership and
Development Corps (Youth Corps) to help young people move successfully from
school to work;
-
Providers and communities working
together through the development of Community Action Plans to identify the
strategies and resources needed to overcome barriers to employment and participation;
and
-
The Community Development Fund to
help communities build strong social and economic foundations
National Disability Insurance
Scheme
For people who suffer a
disability as a result of heart attacks, strokes or spinal injury, the National
Disability Insurance Scheme provides support including access to community
services, funded personal plans and supports over a person's lifetime.
Medicare
The health needs of injured
people whose injuries are not covered under workers' compensation, are covered
by the Australian Government's Medicare system. Medicare provides access to
medical and hospital services for all Australian residents and certain visitors
to Australia. Medicare covers free and subsidised treatment by health
professionals such as doctors, specialists, optometrists and, in certain
circumstances, dentists and other allied health practitioners. Medicare also
provides free treatment and accommodation in a public hospital.
PBS Scheme
The Pharmaceutical Benefits
Scheme (PBS) provides highly discounted medications to the
Australian public and an additional discount for those on a low income who hold
a Health Care Card (concession card). The payment for all PBS listed
medications for those with a concession card is $6.10 (1 January 2015) while
those without a concession card pay up to $37.70 (1 January 2015). The
Australian Government pays the remaining cost.
Disability discrimination
legislation
The Commonwealth's Disability
Discrimination Act 1992 (DD Act) covers direct and indirect discrimination,
and places positive obligations on employers in relation to employees with a
disabling health condition, injury or illness. An employer's main obligations
under the DD Act are:
-
not to discriminate directly by
less favourable treatment
-
not to discriminate indirectly by
treatment which is less favourable in its impact
-
to make reasonable adjustments
(e.g. performance requirements, equipment and facilities provided) where
required
-
to avoid and prevent harassment.
Superannuation and related
insurances
The Australian Government has
legislated that all Australian employers must provide superannuation coverage
to all employees. The new 'My Super' legislation, commencing in 2013 with full
compliance required by 2017, requires that all superannuation funds must
provide default opt-out death and total and permanent disability insurance
coverage. A majority of superannuation schemes also currently provide opt-in
income protection insurance at lower than market rates.[32]
Committee response
2.103 The committee thanks the Minister for Employment for his response in
relation to the compatibility of the measure. The committee considers that the
minister's response has demonstrated that the measure is likely to be
compatible with the right to social security and the right to health. In
particular, the committee notes that the minister's response explains that the
legitimate objective of the measure is to more clearly define when an injury
occurs 'in the course of employment or other productive work' for the purposes
of eligibility for workers' compensation.
Introduction of 'Compensation Standards'
(Schedule 1)
2.104
Schedule 1 of the bill would give Comcare the power to determine by
legislative instrument a 'Compensation Standard' which would set out for an
ailment the factors that must be met before an employee may be said to be
suffering from that ailment. If the employee does not meet the Compensation
Standard for an ailment then they will not be taken to have suffered a
compensable injury under the Act.
2.105
The committee considers that the measures engage and limit the right to
health and the right to social security as the measures will reduce access to
workers' compensation.
Right to social security and the right
to health
2.106
These rights are described above at paragraphs [2.97] to [2.101].
Compatibility of the measures with the right to health and
social security
2.107
The committee considered that the statement of compatibility has not
explained why Compensation Standards are necessary. Moreover, in the absence of
safeguards, Comcare will have the power, through Compensation Standards, to
limit access to workers' compensation in circumstances that may be inconsistent
with medical evidence.
2.108
The committee therefore considered that the measure granting Comcare the
power to establish 'Compensation Standards' engages and limits the right to
health and the right to social security. The statement of compatibility for the
bill does not provide sufficient information to establish that the bill may be
regarded as proportionate to its stated objective (that is, the least rights restrictive
alternative to achieve this result). The committee therefore sought the advice
of the Minister for Employment as to whether the measure imposes a
proportionate limitation on the right to health and the right to social
security.
Minister's response
Introduction of
'Compensation Standards' (Schedule 1)
Right to social security
Right to health and a
healthy environment
Schedule 1 to the Bill inserts a
new section 7A which empowers Comcare to determine a Compensation Standard that
relates to a specified ailment and sets out the factors that must, as a
minimum, exist before it can be said that an employee is suffering from the
ailment. A Compensation Standard can also set out matters that must be taken
into account in determining whether an ailment or the aggravation of an ailment
was contributed to, to a significant degree, by an employee's employment.
The Committee agreed that
ensuring that an employer's liability does not extend to diseases or injuries
which have no significant basis in employment could be a legitimate objective.
The Committee also agreed that the measure is rationally connected to this
objective. This is because the amendments will enable Comcare to establish
criteria for particular ailments which will determine whether an employee is
eligible for workers' compensation.
The Committee stated at paragraph
1.312 that it required further information to show that the amendments were
proportionate to the stated objective.
Measure is a reasonable and
proportionate means of achieving the objective
This amendment is reasonable and
proportionate to the stated objective because Compensation Standards will
provide greater transparency and consistency in relation to the matters that
are taken into account in determining whether a person suffers from a
compensable injury or disease. Compensation Standards will be subject to the Legislative
Instruments Act 2003 (LI Act) and will contribute to ensuring the
integrity of the scheme while having the benefit of parliamentary scrutiny.
The Department of Veterans'
Affairs currently uses similar decision support tools to determine liability
for claims made by Australian Defence Force (ADF) members under the Military
Rehabilitation and Compensation 2004 (MRC Act) and the Veterans'
Entitlements act 1986. The Statements of Principles (SoPs) used
under those Acts are determined by the Repatriation Medical Authority. The SoPs
include a set of diagnostic criteria based on sound medical-scientific evidence
that are used to establish a connection between a medical condition and service
in the ADF. The SoPs also identify the factors which must exist, as a minimum,
to cause a particular kind of disease, injury or death. The SoPs were created
to provide a more equitable, efficient, consistent and non-adversarial system of
dealing with claims for liability. It is anticipated that Comcare will develop
the Compensation Standards along similar lines to the SoPs. However, unlike the
SoPs, which are specific to defence-related service, the Compensation Standards
will be specific to employment-related injury and disease and will enable a
more equitable and consistent approach to determining liability for workers'
compensation claims.
Under the SRC Act, an employee
who believes that an injury or disease was significantly contributed to by his
or her work can lodge a claim for workers' compensation based on a diagnosis
from a medical practitioner linking the claimed condition to employment.
However, given that medical practitioners do not have access to the employee's
workplace, and are unlikely to have specific knowledge of relevant workplace
events, it is questionable whether workplace causality can be based on medical
diagnosis alone. This is particularly the case for psychological or psychiatric
injury claims. Where a medical practitioner does not have full knowledge of
relevant workplace events, a Compensation Standard can be used to support the
practitioner's assessment of causation. A causality-based diagnostic model
will:
-
inform medical practitioners about
what constitutes a compensable injury and
-
provide greater scheme-wide
consistency and transparency in the initial liability decision-making process.
In cases of physical injury, it
is relatively easy to establish workplace causality. However, for psychological
or psychiatric injuries, this can be difficult because a person's mental health
is compromised. Currently, when claims are rejected, an injured employee may be
subjected to a lengthy dispute resolution process involving reconsideration of
a claim and possible referral to the Administrative Appeals Tribunal (AAT).
This is not an ideal outcome, particularly for someone who has compromised
health.
Compensation Standards will
establish clear, transparent criteria for determining workplace causality for a
limited range of conditions, such as adjustment disorder, to support better
decision making and reduced disputation. Liability for most conditions will be
determined without a Compensation Standard, making the development of a
Compensation Standard the least restrictive measure for determining liability
for conditions where diagnoses are currently inconsistent across the scheme.
Clearer rules, as outlined in a Compensation Standard, may further reduce the
need for an injured employee to engage in lengthy disputation. In particular,
Compensation Standards will assist where workplace causality is disputed or
harder to establish and will make it simpler for employees, especially those
with mental injuries, to negotiate the claims process.
The Committee expressed concern
that there appears to be no requirement for the Compensation Standards to be
based on objective evidence. The Committee also expressed concern at the broad
discretion available to Comcare in establishing the Compensation Standards and
regarding whether appropriate consultation would be carried out.
Comcare will be establishing a
working group to develop Compensation Standards with membership to include
representatives from relevant expert groups including employers, employee
advocates and medical experts. This working group will be tasked with ensuring
that any Compensation Standards developed are based on objective evidence.
Further, a Compensation Standard
will be a legislative instrument and therefore subject to the requirements
under the LI Act. Section 17 of the LI Act requires that, before making a
legislative instrument, the rule-maker (in this case, Comcare) must be
satisfied that any consultation that is considered by the rule-maker to be
appropriate and reasonably practicable to undertake has been undertaken.
Section 26 of the LI Act requires that the explanatory statement to the
legislative instrument contain either a description of the nature of the
consultation, or, if no consultation was undertaken, an explanation as to why
no consultation under section 17 was undertaken. Furthermore, a Compensation
Standard will be tabled before Parliament (section 38 of the LI Act), subject
to disallowance by Parliament (section 42 of the LI Act) and subject to
scrutiny by the Senate Standing Committee on Regulations and Ordinances (Senate
Standing Order 23).[33]
Committee response
2.109 The committee thanks the Minister for Employment for his response on
the proportionality of the measure. The committee considers that the minister's
response has demonstrated that the measure is likely to be compatible with the
right to social security and the right to health. In particular, the committee
notes:
-
the establishment of a working group to develop Compensation
Standards, with membership to include representatives from relevant expert groups;
-
Compensation Standards will be disallowable instruments;
-
similar decision support tools are currently used by the
Department of Veterans' Affairs to determine liability for claims made by
Australian Defence Force members; and
-
the amendments will enable a more equitable approach to
determining liability for workers' compensation claims.
Workplace rehabilitation plans (Schedule 2)
2.110
Schedule 2 of the bill would introduce provisions in relation to
'workplace rehabilitation plans'.[34]
Currently a rehabilitation program for an injured employee will set out the
details of service and activities to assist an injured worker in rehabilitation
and return to work.[35]
The new 'workplace rehabilitation plan' continues to concern the rehabilitation
of an injured employee but emphasises the vocational nature of the services
provided under the scheme, and removes references to other forms of treatment.[36] The bill
provides that a workplace rehabilitation plan may require an employee to carry
out specified activities, and that the obligation to do so becomes part of the
employee's responsibilities under the plan.[37]
2.111
The measure engages and may limit the right to health and the right of
persons with disabilities to rehabilitation.
Rights of
persons with disabilities to rehabilitation
2.112
Article 26 of the Convention on the Rights of Persons with Disabilities
(CRPD) protects the rights of persons with disabilities to rehabilitation
(right to rehabilitation). This right obliges Australia to take effective and
appropriate measures, including through peer support, to enable persons with
disabilities to attain and maintain maximum independence, full physical,
mental, social and vocational ability, and full inclusion and participation in
all aspects of life. To that end, Australia is required to organise, strengthen
and extend comprehensive habilitation and rehabilitation services and programs,
particularly in the areas of health, employment, education and social services.
These services and programs need to:
-
begin at the earliest possible stage, and are based on the
multidisciplinary assessment of individual needs and strengths;
-
support participation and inclusion in the community and all
aspects of society, are voluntary, and are available to persons with
disabilities as close as possible to their own communities, including in rural
areas.[38]
Compatibility of the measure with the rights of persons with
disabilities to rehabilitation
2.113
The committee noted that the statement of compatibility sets out a range
of reasons as to why this objective is important and addresses a pressing
concern.[39]
Based on the information provided the committee considers that the measures
pursue a legitimate objective for the purpose of justifying a limitation on
human rights.
2.114
The committee noted that in order to constitute a permissible limitation
on human rights a measure must additionally be rationally connected to and a
proportionate means of achieving the stated objective. The statement of
compatibility argues that the measure is also rationally connected and a
proportionate means of achieving this objective.
2.115
However, the committee previously considered that the statement of
compatibility does not explain how specifically the measures will support the
stated legitimate objective and whether less rights restrictive measures would
achieve the same result.
2.116
The committee therefore sought the advice of the Minister for Employment
as to whether there is a rational connection between the limitation and the
legitimate objective; and whether the limitation is a reasonable and
proportionate measure for the achievement of that objective, and particularly
whether a less rights restrictive alternative would achieve the same result.
Right to
health and a healthy environment
2.117
The right to health is set out above at [2.101].
Compatibility of the measure with the right to health
2.118
The statement of compatibility states that, to the extent that the
measures could be viewed as narrowing the scope of medical rehabilitation, the
measures may also limit the right to health.[40]
2.119
The committee therefore sought the advice of the Minister for Employment
as to whether there is a rational connection between the limitation and the
legitimate objective, and whether the limitation is a reasonable and
proportionate measure for the achievement of that objective, and particularly,
whether a less rights restrictive alternative would achieve the same result.
Minister's response
Workplace rehabilitation
plans (Schedule 2)
Rights of persons with
disabilities to rehabilitation
Right to health and a
healthy environment
Schedule 2 to the Bill contains
amendments which emphasise the vocational (rather than medical) nature of
rehabilitation services.
The Committee agrees that the
measure pursues a legitimate objective to pursue a core purpose of the Comcare
scheme to, as far as possible, provide for early intervention and
rehabilitation support for injured employees to stay in or return to suitable
employment. The Committee seeks advice as to:
-
whether there is a rational
connection between the limitation and the legitimate objective
-
whether the limitation is a
reasonable and proportionate measure for the achievement of that objective, and
particularly whether a less rights restrictive alternative would achieve the
same result.
Rational connection between
measure and objective
The amendments distinguish
medical and vocational rehabilitation, thereby clarifying the roles and
responsibilities of participants in the system (i.e. to provide medical
treatments or vocational treatments). This clarification will enable the
Comcare scheme to better provide for early intervention and rehabilitation
support for injured employees to enable them to stay in or return to suitable
employment. This is the rational connection between the amendments and the
legitimate objective.
Medical rehabilitation is the
process of enhancing and restoring functional ability and quality of life to
those with physical or mental impairments or disabilities.
Vocational rehabilitation is
aimed at maintaining injured or ill employees in, or returning them to,
suitable employment.
Providers of vocational
rehabilitation are engaged to provide specialised expertise in addition to that
generally available within the employer's and insurer's operations. Providers
are engaged for those injured employees where return to work is not straight
forward. Service provision is largely delivered at the workplace by:
-
facilitating an early return to
work of the employee;
-
identifying and designing suitable
duties for the injured employee and assisting employers to manage the employee
in these duties;
-
identifying and coordinating
rehabilitation strategies that ensure employees are able to safely perform
their duties;
-
providing the link between the
claims manager, the employer and treatment providers to ensure a focus on safe
and sustainable return to work; and
-
arranging appropriate retraining
and placement in alternative employment when an employee is unable to return to
pre-injury duties.
The vocational rehabilitation
model has been refined and developed over the last 25 years and the SRC Act has
not kept up to date with those developments. The current definition of rehabilitation
program in the Act, in that it includes provision for medical services, is out
of step with the Nationally Consistent Approval Framework for Workplace
Rehabilitation Providers (National Rehabilitation Framework). The
National Rehabilitation Framework was developed by the Heads of Workers'
Compensation Authorities, a group comprising the Chief Executives (or their
representatives) of the peak bodies responsible for the regulation of workers'
compensation in Australia and New Zealand.
The National Rehabilitation
Framework which has been in place since 1 July 2010 specifically limits the
work of approved rehabilitation program providers to vocational tasks, so as to
minimise the perceived conflict of interest for the delivery of treatment
services together with vocational programs.
Comcare's operational standards,
to be met by all persons who are approved as rehabilitation program providers
require, that:
A provider must ensure that no conflict of interest
arises when providing rehabilitation services. Specifically, treatment and
occupational rehabilitation services must not be provided to the same
individual.
The removal of the provision of
medical treatment from the definition of a workplace rehabilitation plan in the
Bill is consistent with contemporary thinking in relation to vocational
rehabilitation.
Measure is a reasonable and
proportionate means of achieving the objective
These amendments are reasonable
and proportionate to the stated objective. This is because access to medical
rehabilitation and the right to health are not restricted by removing the
references to medical treatment in the workplace rehabilitation plan. The Bill
positively engages the right to health by providing for access to
rehabilitation from injury notification rather than as currently provided for,
on acceptance of a claim. The Bill also positively engages the right to health
by providing access to provisional medical expense payments before a claim is
determined.
Further, safeguards have been put
in place to ensure that an injured employee is medically fit to participate in
workplace rehabilitation. For example, an employer is obliged to consult with
the employee and any treating medical practitioner when developing a workplace
rehabilitation plan.[41]
Committee response
2.120 The committee thanks the Minister for Employment for his response on
the compatibility of the measure. The committee considers that the minister's
response has demonstrated that the measure is likely to be compatible with the
rights of persons with disabilities to rehabilitation and the right to health.
In particular, the committee notes that:
-
the amendments distinguish between medical and vocational
rehabilitation;
-
access to medical rehabilitation and the right to health are
not restricted by removing the references to medical treatment in the workplace
rehabilitation plan; and
-
current definitions of 'rehabilitation program' in the Act,
which includes provision for medical services, is inconsistent with the
Nationally Consistent Approval Framework for Workplace Rehabilitation
Providers.
Obligations under a workplace rehabilitation plan not
subject to review (Schedule 2)
2.121
Schedule 2 of the bill would also provide that an injured employee's
responsibilities and the obligations of a liable employer under a workplace rehabilitation
plan are not reviewable.[42]
Currently section 38 out the Act sets out when decisions by Comcare are
reviewable.[43]
The committee accordingly considers that the measure engages and limits the
right to a fair hearing.
Right to a fair hearing
2.122
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). The right
applies to both criminal and civil proceedings, and to cases before both courts
and tribunals. The right is concerned with procedural fairness and encompasses
notions of equality in proceedings, the right to a public hearing and the
requirement that hearings are conducted by an independent and impartial body.
Compatibility of the measure with the right to a fair hearing
2.123
The committee previously considered that the measure limits the right to
a fair hearing as it renders obligations under a workplace rehabilitation plan
non-reviewable. The committee also considered that the statement of
compatibility has not demonstrated that the measure is rationally connected to
and a proportionate means of achieving the stated objective. Limited information has been provided as to
the content or adequacy of relevant safeguards, and as such, it is difficult to
make a full assessment of the human rights compatibility of the proposed
measure.
2.124
The committee therefore sought the advice of the Minister for Employment
as to whether the proposed changes are aimed at achieving a legitimate
objective, whether there is a rational connection between the limitation and
that objective, and whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Minister's response
Obligations under a
workplace rehabilitation plan not subject to review (Schedule 2)
Right to a fair hearing
Schedule 2 to the Bill contains
amendments to the formulation of workplace rehabilitation plans. Not every part
of a workplace rehabilitation plan will be subject to review. The employee's
responsibilities and the obligations of the liable employer contained in the
workplace rehabilitation plan, will not be reviewable.
The Committee, at paragraph
1.331, has requested further information as to why the measure is needed in
pursuit of the objective, which is to promote compliance with rehabilitation
plans, rather than arguments regarding particular employee responsibilities and
obligations of the liable employer. The Committee has also requested further
information as to whether there is a rational connection between the objective
and the amendments, and whether the amendments are reasonable and
proportionate.
Rational connection between
measure and objective
By ensuring that the details of
the plans are not reviewable, the amendments will provide for greater
flexibility in the plans to accommodate changes in the employee and employer's
circumstances. The plans will therefore more accurately reflect each party's
circumstances. This is the rational connection between the objective and these
amendments.
A workplace rehabilitation plan
outlines the rehabilitation objectives or goals and related services, supports
and activities that will assist an employee with their rehabilitation and
return to work. A workplace rehabilitation plan will include an employee's
responsibilities and an employer's obligations in relation to the employee's
rehabilitation. Where a rehabilitation provider is engaged, the plan will also
include the rehabilitation provider's services and estimated costs.
Typical employee responsibilities
include undertaking medical treatment and counselling with an expected outcome
of continuing to recover and commencing graduated return-to-work according to
an agreed schedule and within medical restrictions. The expected outcome is
that the employee will have a safe and durable return to work.
A typical employer obligation for
a supervisor is to support and monitor the employee's performance while in the
workplace and to ensure that suitable work, within the employee's current
medical restrictions, is available. This responsibility will support
rehabilitation and graduated return to work programs.
Typical responsibilities of a
workplace rehabilitation provider include liaising with the employee to ensure
the employee is supported through the rehabilitation process and liaising with
the employee's treating GP to discuss medical restrictions and the recovery
process.
Under the proposed amendments,
the goals of a workplace rehabilitation plan will be reviewable. An engaged
rehabilitation provider's services and estimated costs will also be reviewable.
The most important component of a
workplace rehabilitation plan is the stated objectives or goals. A workplace
rehabilitation plan's goals will be reviewable when the plan is first developed
and whenever any change is made to those goals.
The more detailed elements of a
workplace rehabilitation plan tend to be responsibilities allocated to the
rehabilitation provider.
The Bill introduces a new section
(s36E) which allows an employee who has sustained a workplace injury to request
that the liable employer formulate a workplace rehabilitation plan for the
injury. Under existing legislation, an employee does not have the power to
request a rehabilitation plan be developed in relation to the injury to assist
their return-to-work. The section places an obligation on the employer to
consider the request and if the employer decides not to formulate a workplace
rehabilitation plan, that decision is reviewable.
Measure is a reasonable and
proportionate means of achieving the objective
The amendments are reasonable and
proportionate because:
-
the content of rehabilitation
plans are developed in consultation with the employee, their medical
practitioners and their employer;
-
the goal or objective which
informs an employee's responsibilities and employer obligations in the plan is
reviewable; and
-
the amendments promote compliance
with the goals and objectives of a rehabilitation plan rather than more
administrative arrangements regarding particular employee responsibilities and
obligations of a liable employer.
While some areas of a workplace
rehabilitation plan are not subject to merits review by the AAT, procedural
fairness in the decision-making process is preserved in the right to judicial
review under the Administrative Decisions (Judicial Review) Act 1977,
the Judiciary Act 1903 and the Constitution. The principles of
procedural fairness and natural justice not only allow an employee to seek
judicial review of a decision improperly made (under the legislation cited),
they compel a decision maker to make decisions in a fair and reasonable manner.[44]
Committee response
2.125 The committee thanks the Minister for Employment for his response on
the compatibility of the measure. The committee considers that the minister's
response has demonstrated that the measure may be compatible with the right to
a fair hearing. In particular, the committee notes that:
-
the goals of a workplace rehabilitation plan will be
reviewable and an engaged rehabilitation provider's services and estimated
costs will also be reviewable; and
-
the content of rehabilitation plans are developed in
consultation with the employee, their medical practitioners and their employer.
Expanded definition of 'suitable employment'
(Schedule 2)
2.126
Under section 40 of the Act employers currently have a duty to provide
'suitable employment' to injured employees who have undertaken or are
undertaking a rehabilitation program. Schedule 2 of the bill would broaden the
definition of 'suitable employment'.
Employment with any employer who is not the Commonwealth or a licensee
(including self-employment) may now be considered 'suitable employment'.
Failure by an employee to accept or engage in such 'suitable employment' would
be subject to the sanctions regime in proposed Schedule 15 of the bill. New
section 34K requires a liable employer to take all reasonably practicable steps
to provide an injured employee with suitable employment or assist the employee
to find such employment.[45]
2.127
The expanded definition of 'suitable employment' engages and may limit
multiple rights.
Multiple rights
2.128
The committee previously considered that the measure engages and may
limit the following rights:
-
the right to work;
-
the right to just and favourable conditions at work;
-
the right of persons with disabilities to work; and
-
the right to rehabilitation.
2.129
The committee noted in particular that these rights include the ability
to freely choose work.
Compatibility of the measure with multiple rights
2.130
The statement of compatibility states that the measure engages and may
limit the right to work and the right to persons with disabilities to work.[46]
2.131
The expansion of what constitutes 'suitable employment' together with a
consequential obligation on an injured employee to accept and maintain
'suitable employment', limits the ability of such injured employees to freely
choose work. As noted above, this accordingly engages and may limit a range of
human rights. However, the statement of compatibility argues that any
limitation on human rights is justifiable and the legitimate objective of the
measure is to:
to strengthen the obligations of
employers to provide greater opportunities for injured employees to engage in
suitable employment and thereby improve health and return to work outcomes for
injured employees.[47]
2.132
The committee considered that this may be regarded as a legitimate
objective for the purposes of international human rights law, and that the
measure is rationally connected to this objective.
2.133
The statement of compatibility further argues that the measure is a
proportionate approach to achieving this objective.[48]
However, the committee considered that further information regarding the
specifics of the safeguards is needed for the committee to fully assess the
human rights compatibility of the expanded definition of suitable employment.
2.134
The committee also noted that no information has been provided as to
whether less rights restrictive measures would have achieved the same result.
Specifically no information has been provided as to whether a regime where
employees were encouraged rather than mandated to accept or engage in an
expanded definition of 'suitable employment' has been provided.
2.135
The committee therefore sought the advice of the Minister for Employment
as to whether the limitation is a proportionate measure for the achievement of
that objective (that is, particularly, whether there is a less rights
restrictive approach and whether there are sufficient safeguards).
Minister's response
Expanded definition of
suitable employment (Schedule 2)
Right to work
Right to just and
favourable conditions at work
Right of persons with
disabilities to work
Right to rehabilitation
Schedule 2 to the Bill includes
an amendment which broadens the definition of 'suitable employment' to include
any employment which is suitable employment. Currently, suitable employment as
defined in section 4 of the SRC Act does not allow for employment by a
different employer to be 'suitable employment', even if that employment would
otherwise be suitable for the employee. For an injured employee who continues
to be employed by the Commonwealth or a licensee, 'suitable employment' must be
employment within the Commonwealth or the relevant licensee.
The Committee, at paragraph
1.340, has requested further information on how the new definition of 'suitable
employment' is proportionate for the achievement of the legitimate objective to
strengthen the obligations of employers to provide greater opportunities for
injured employees to engage in suitable employment and thereby improve health
and return to work outcomes for injured employees.
Measure is a reasonable and
proportionate means of achieving the objective
The amendments are reasonable and
proportionate in that there are substantial safeguards in place to ensure that
suitable employment is appropriate to the individual circumstances of an
employee. What constitutes suitable employment is specific to an individual
and must take into account the employee's age, experience, training, language
and other skills, and the employee's suitability for rehabilitation or
vocational training and any other relevant matter.
The capacity of an employee to
remain or engage in suitable employment must be assessed in consultation with
the employee and their medical practitioner to ensure that the employment
reflects the capacity and abilities of an employee.
The restriction in the definition
of 'suitable employment' under the SRC Act is unique to the Commonwealth
legislation and is at odds with the nationally recognized return-to-work
hierarchies as outlined in the National Rehabilitation Framework.
The rehabilitation process
outlined in the National Rehabilitation Framework is aimed at encouraging and
returning an injured employee to 'suitable employment'/suitable duties as soon
as it is safe to do so, and incorporates:
- assessment of need:
- early,
accurate identification of risks and needs ensures the most appropriate
intervention is applied to achieve a safe return to work
- assessment
of need continues throughout the course of service delivery as new information
is received
- return to work planning-return
to work planning is required when all necessary assessments have been completed
and an employee needs assistance to:
- return
to work with the pre-injury employer;
- undertake
physical upgrading or transitional duties with a host employer prior to return
to work with the pre-injury employer; or
- find
a new job.
- Return to work planning will:
- specify strategies
that address the identified risks, needs, strengths and capacities having
regard to the 'employee's medical status, functional capacity, vocational status,
psychosocial concerns, employer requirements, workplace issues and any other
return to work barriers
- take place in
consultation with the employee, the treating doctor, the employer (if the
employee is still employed) and the union (if involved), to align expectations
of key parties
- be consistent with
the insurer's Injury/Case/Claim Management Plan
- consider personnel
management and industrial issues in the workplace and adopt strategies to
address these issues if they are barriers to the employee's return to work
- take account of the
preferred hierarchy for placement but not at the expense of the employee's
needs or the employer's capacity, namely:
- same
job/same employer
- different
job/same employer
- similar
job/different employer
- different
job/different employer.
The process also requires active
implementation and review of the employee's return to work and providing
support to the employee and the employer to ensure the return to work is
durable.
As can be seen from the process
outlined above, the return-to-work process is highly consultative and sensitive
to the needs of the employee in ensuring that their rehabilitation back to the
workplace is managed taking into account their specific needs. The majority of
employees are encouraged and supported to return to work, there are only a very
small percentage of employees for whom mandating a return to work is required.
For those employees who do not cooperate with the return to work process, the
SRC Act currently requires that an employee's rights to compensation under the
Act are suspended until the employee begins to co-operate.
The changes to the definition of
'suitable employment' therefore enable access to greater opportunities in
returning injured employees to work and bring the Commonwealth legislation into
line with the National Rehabilitation Framework and with state and territory
workers' compensation schemes.[49]
Committee response
2.136 The committee thanks the Minister for Employment for his response on
the proportionality of the measure. The committee considers that the minister's
response has demonstrated that the measure is likely to be compatible with
multiple rights. In particular, the committee notes that:
-
the bill requires a liable employer to take all reasonably
practicable steps to provide an injured employee with suitable employment or
assist the employee to find such employment;
-
the current restriction in the definition of 'suitable
employment' is unique to the Commonwealth legislation and is inconsistent with
the return-to-work hierarchies outlined in the National Rehabilitation
Framework; and
-
there are only a very small percentage of employees for whom
mandating a return to work is required.
Amendments to the amount and type of medical
expenses covered (Schedule 5)
2.137
Schedule 5 of the bill would make a number of changes to the type and
amount of medical expenses covered by Comcare. The schedule requires Comcare
and licensees to consider certain matters in determining whether medical
treatment was reasonably obtained. It is intended that Clinic Framework
Principles will be established under regulation to assist in determining
whether a medical treatment is reasonably obtained. The schedule also empowers
Comcare to establish by regulation an amount payable for medical services and
examinations.
2.138
These measures will limit the existing discretion afforded to Comcare
and licensees to provide compensation for the cost of medical treatment and as
a result this may reduce the extent to which an employee is fully compensated
for medical expenses incurred as a result of a workplace injury. The measures
may also limit patient choice with respect to medical practitioners where the
medical practitioner is unwilling to charge for services at the rate prescribed
under regulations established by provisions in these measures.
2.139
Accordingly, the measures engage and limit the right to social security
and the right to health.
Right to social security and the right
to health
2.140
These rights are described above at paragraphs [2.97] to [2.101].
Compatibility of the measures with the right to health and
social security
2.141
The statement of compatibility explains that the measures may limit the
right to social security and the right to health. The statement of
compatibility also explains that the measures are intended to improve the
sustainability of the scheme by focussing limited resources on medical
treatment that is reasonable, and contain medical costs under scheme.
2.142
The statement of compatibility explains the measures as proportionate on
the basis as they 'promote greater transparency and consistency in Comcare's
decision-making'.[50]
2.143
However, the measures give Comcare broad discretion to set scheduled
fees for specific medical treatments. There is no requirement to have regard to
rates endorsed by the Australian Medical Association or even to consult the
Australian Medical Association. Accordingly, it may be possible that scheduled
fees may be set at such a low level that the most appropriately trained and
qualified medical practitioners are unwilling to provide services at that rate.
2.144
Moreover, the amendments allow Comcare not only to consider the Clinic
Framework Principles (which will be developed under regulations) when
determining whether a medical treatment is reasonable but to any other matter
that Comcare considers relevant. As a result, matters that are not strictly
medical in nature may be considered. The statement of compatibility has not
explained how these broad powers are a proportionate means of achieving the
legitimate objective.
2.145
The committee therefore sought the advice of the Minister for Employment
as to whether the measures impose a proportionate limitation on the right to
health and the right to social security.
Minister's response
Amendments to the amount
and type of medical expenses covered (Schedule 5)
Right to social security
Right to health and a
healthy environment
Schedule 5 contains amendments
which allow for Comcare to set a schedule of fees (the 'medical services
table') for the reimbursement of costs for medical treatment obtained by an employee.
The medical services table will not limit the types of medical treatment, but
will limit the amount payable by the relevant authority for specified
treatments. Schedule 5 also contains amendments which allow for Comcare to
prescribe Clinical Framework Principles, which must be taken into account when
determining whether medical treatment was reasonably obtained.
The Committee, at paragraph
1.349, requested further information as to how these measures are proportionate
to the legitimate objectives of improving the sustainability of the scheme by focussing
limited resources on medical treatment that is reasonable, and containing
medical costs under the scheme.
Medical services table
A key objective of the Bill, in
addition to improving the sustainability of the scheme, is to improve the
health, recovery and return-to-work outcomes of injured employees. This will be
achieved by ensuring that medical treatment is evidence-based,
outcomes-focussed and provided by registered and accredited health
practitioners. In addition, new measures will ensure early reimbursement of
medical expenses, even before a claim for compensation is lodged.
Fee schedules are currently used
in other Australian workers' compensation jurisdictions and thorough
investigation of their effectiveness has been undertaken. There is evidence
that fee schedules prevent overcharging for the same service.
The Committee expressed concern
at the broad discretion available to Comcare in setting scheduled fees in the
medical services table for specific medical treatments, and the lack of requirement
to consult with, or have regard to figures set by, the Australian Medical Association.
The medical services table will be a legislative instrument, and therefore
subject to the requirements under the LI Act. Section 17 of the LI Act requires
that, before making a legislative instrument, the rule-maker (in this case,
Comcare) must be satisfied that any consultation that is considered by the
rule-maker to be appropriate and reasonably practicable to undertake has been
undertaken. Section 26 of the LI Act requires that the explanatory statement to
the legislative instrument contain either a description of the nature of the consultation,
or, if no consultation was undertaken, an explanation as to why no consultation
under section 17 was undertaken.
Furthermore, the medical services
table will be tabled before Parliament (section 38 of the LI Act), subject to
disallowance by Parliament (section 42 of the LI Act) and subject to scrutiny by
the Senate Standing Committee on Regulations and Ordinances (Senate Standing
Order 23).
Whether treatment was
reasonably obtained
In determining whether treatment
was reasonably obtained, the amendments require that regard must be had to the
Clinical Framework Principles and any other matter Comcare considers relevant.
This provision has a two-fold
purpose in that it establishes key medical principles (as outlined in the
Clinical Framework) and maintains the discretionary element that is a feature
of current scheme practice by taking other factors, including non-medical
factors, into consideration when making a determination as to the compensability
of the treatment. For example, an injured employee living in a remote area may
not be able to access treatment that fully satisfies Clinical Framework Principles.
In this case, the remoteness of the location would be a relevant factor that
Comcare would be able to take into account in order to determine that a treatment
was reasonably obtained. It is reasonable that relevant non-medical factors are
taken into regard when determining whether treatment was reasonably obtained,
so that the treatment can be examined in the context of the employee's
circumstances.
The Clinical Framework Principles
will also be a legislative instrument, and the requirements of the LI Act apply
(see above).
Measure is a reasonable and
proportionate means of achieving the objective
The amendments to establish the
medical services table and the Clinical Framework Principles, which together
will assist in determining whether medical treatment was reasonably obtained,
and the amount which will be reimbursed in respect of this medical treatment,
are reasonable and proportionate. The establishment of a fee schedule will
specify the maximum compensable amount payable for a number of medical treatments.
However, this measure also contains flexibility in that treatments that are not
specified in the fee schedule will be assessed and paid as charged, providing
they meet the standards outlined in the Clinical Framework. This ensures the
sustainability of the scheme - by limiting some amounts payable, but retaining
enough flexibility to ensure that items that fall outside the schedule are able
to compensated.[51]
Committee response
2.146
The committee thanks the Minister for Employment for his response on
the proportionality of the measure. The committee notes that the minister's
response relies on the consultation requirements under the Legislative
Instruments Act 2003 (LI Act) as evidence that there will be effective
consultation in the development of the medical services table. However, the
committee notes that section 17 of the LI Act does not strictly require that
consultation be undertaken before an instrument is made. Rather, it requires
that a rule-maker is satisfied that any consultation, that he or she thinks is
appropriate, is undertaken. There is no requirement that the rule-maker be
reasonably satisfied, only that they are satisfied.
2.147
In the event that a rule-maker does not think consultation is
appropriate, there is no requirement that consultation be undertaken. In
addition, the LI Act provides that consultation may not be undertaken if a
rule-maker considers it to be unnecessary or inappropriate; and the fact that consultation
does not occur cannot affect the validity or enforceability of an instrument.[52]
2.148
Accordingly, the committee considers that the minister's response has
not addressed its original concern that there is no requirement to have regard
to rates endorsed by the Australian Medical Association or even to consult the
Australian Medical Association. Accordingly, it may be possible that scheduled
fees may be set at such a low level that the most appropriately trained and
qualified medical practitioners are unwilling to provide services at that rate.
2.149
In relation to the test for whether treatment was reasonably obtained, the
amendments allow Comcare not only to consider the Clinic Framework Principles (which
will be developed under regulations) when determining whether a medical
treatment is reasonable but any other matter that Comcare considers relevant.
As a result, matters that are not strictly medical in nature may be considered.
The minister's response gives a good example of where it may be appropriate to consider
non-medical matters – that the patient lives in a remote area with limited
services.
2.150
However, the response does explain why it is necessary to grant Comcare
a broad discretion to consider any other matter when determining whether
treatment was reasonably obtained. Such a broad discretion would make it very
difficult for a claimant to challenge a decision of Comcare.
2.151 The committee therefore considers that the measures in Schedule 5 of
the bill amending the amount and type of medical expenses covered under the
Comcare scheme engage and limit the right to health and the right to social
security as contained in articles 9 and 12 of the International Covenant on
Economic, Social and Cultural Rights.
2.152 For the reasons set out above, the minister’s response does not
sufficiently justify that these measures may be regarded as proportionate to
its stated objective. Accordingly, the committee considers that the measures in
Schedule 5 of the bill may be incompatible with the right to health and the
right to social security.
2.153 The committee recommends that the bill be amended so that Comcare
must consult the Australian Medical Association and other relevant professional
bodies prior to establishing the medical services fee schedule and to require
Comcare to ensure that the fee schedule does not unduly restrict access to
medical treatment.
2.154 If the bill is passed, and regulations made to establish the fee
schedule the committee will review the regulation for compatibility with the right
to health and the right to social security.
Compensable household and attendant care
services (Schedule 6)
2.155
Schedule 6 of the bill would introduce a requirement that attendant care
services be compensable only where they are provided by a registered provider
and where there has been an independent assessment of an injured employee's
need for household services and/or attendant care service.
2.156
The measure engages and may limit the right to social security and the
right to health.
Right to social security and the right
to health
2.157
The right to social security and the right to health are described above
at paragraphs [2.97] to [2.101].
Compatibility of the measures with the right to health and
social security
2.158
The statement of compatibility notes that the measure engages the social
security and the right to health.[53]
In terms of proportionality, the statement of compatibility notes that the
measures are directed towards ensuring that employees are provided with
appropriate and professional care and that they are proportionate as they do
not 'prevent family members from providing care and support to an injured
worker... However, for this care to be compensated, the person providing the
services must be suitably qualified.[54]
2.159
The committee noted that as attendant care services can be highly
personally intrusive, it may be entirely reasonable in certain circumstances
for an injured worker to prefer that such services be provided by a family
member. Qualification and registration processes may take some time and in the
interim this would either have to be done without compensation by a family
member or, instead, by a registered provider. There may also be circumstances where
a family member is providing sufficient and appropriate care but is unable to
meet the qualifications or registration requirements.
2.160
The committee considered that a less rights restrictive approach could
be to include statutory exemptions for family members to provide attendant care
services without registration at the discretion of Comcare. Accordingly, the
statement of compatibility has not demonstrated that the measures are a
proportionate means of achieving the legitimate objective.
2.161
The committee therefore sought the advice of the Minister for Employment
as to whether the measures impose a proportionate limitation on the right to
health and the right to social security.
Minister's response
Compensable household and
attendant care services (Schedule 6)
Right to social security
Right to health and a
healthy environment
Schedule 6 to the Bill contains
amendments which provide that attendant care services will only be compensable
if they are provided by a qualified provider of attendant care services.
The Committee agreed that
ensuring that individuals providing attendant care services are appropriately
trained and qualified is a legitimate objective, and that the measures are rationally
connected to that objective. However, the Committee noted the difficulty that
the qualification and registration process could present to family members who
wanted to provide attendant care services, particularly in circumstances where
a family member is providing sufficient and appropriate care but is unable to
meet the qualifications or registration requirements. The Committee (at
paragraph 1.358) considered that it could be possible to include statutory
exemptions for family members to provide attendant care services without
registration at the discretion of Comcare. Subsequently, the Committee requested
further information to demonstrate that the amendments were proportionate to
the legitimate objective.
Items 11 and 16 of Schedule 6 to
the Bill provide that compensable attendant care services can be provided by
accredited, registered or approved providers of attendant care services. These
items also contain a provision that compensable attendant care services may be provided
by an individual authorised by the relevant authority in relation to the
employee, with the requirement that the relevant authority may only authorise
such an individual if there are special circumstances. These provisions are
designed to, and will allow, a family member in special circumstances to be
able to provide compensable attendant care services without obtaining
qualifications or undergoing the registration process. These provisions ensure
that the amendments are reasonable and proportionate to a legitimate objective.[55]
Committee response
2.162 The committee thanks the Minister for Employment for his response on
the proportionality of the measure. The committee considers that the minister's
response has demonstrated that the measure is likely to be compatible with the
right to health and social security. In particular, the committee notes that
the provisions are designed to allow a family member in special
circumstances to be able to provide compensable attendant care services without
obtaining qualifications or undergoing the registration process.
Reducing compensation paid to employees
suspended for misconduct (Schedule 9)
2.163
Schedule 9 of the bill would insert a provision which would reduce to
zero the compensation paid to an injured worker who is suspended without pay.
2.164
This measure engages the right to social security and the right to
health.
Right to social security
2.165
The right to social security is described above at paragraphs [2.97] to
[2.100].
Right to an adequate standard of
living
2.166
The right to an adequate standard is guaranteed by article 11(1) of the
ICESCR, and requires state parties to take steps to ensure the availability,
adequacy and accessibility of food, clothing, water and housing for all people
in Australia.
Compatibility of the measures with the right to social
security and the right to an adequate standard of living
2.167
The statement of compatibility agrees that the measure limits the right
to social security.[56]
2.168
The committee previously considered that the measure may also limit the
right to an adequate standard of living as an injured worker who is denied
compensation payments may not be able to meet the expenses of providing an
adequate standard of living as they may not be eligible for social security
whilst they are suspended from work.
2.169
The statement of compatibility explains that the objective is to:
correct an anomaly under which an
employee who would not have earned anything if free from incapacity is able to
receive an income because of his or her incapacity.[57]
2.170
The committee considered that, as expressed, this is not a legitimate
objective for the purposes of international human rights law as the objective
does not appear to meet a pressing or substantial concern.
2.171
The committee therefore sought the advice of the Minister for Employment
as to whether this measure is compatible with the right to social security and
the right to an adequate standard of living, and particularly, whether the
proposed changes are aimed at achieving a legitimate objective, whether there
is a rational connection between the limitation and that objective, and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective.
Minister's response
Reducing compensation paid
to employees suspended for misconduct (Schedule 9)
Right to social security
Right to an adequate
standard of living
Schedule 9 contains an amendment
which corrects a significant undermining of disciplinary processes which
currently allows an employee who would not otherwise receive an income due to
being suspended from work to continue to receive weekly incapacity payments for
workers' compensation during that period of compensation.
The Committee, at paragraph
1.368, has requested more information as to how the measure is aimed at
achieving a legitimate objective, whether there is a rational connection
between the limitation and that objective, and whether the limitation is reasonable
and proportionate.
Addresses a pressing concern
This situation arose as a result
of the Federal Court decision in Comcare v Burgess [2007] FCA 1663 which
ruled that paragraph 8(10)(a) of the SRC Act-which is expressed to apply to an
injured employee who continues to be employed during his or her incapacity -
does not contemplate the situation where an employee continues to be employed
but is suspended from that employment without pay, and therefore does not apply
in this situation. The result of this decision is that an employee who would
not have earned anything if free from incapacity (because he or she is
suspended without pay) is able to receive an income because of his or her
incapacity.
Rational connection between
measure and objective
The employment relationship
contains certain rights and obligations under law. Where an employee has been
suspended for misconduct, they have acted in a manner which breaches the terms
of this relationship. To allow a suspended employee to continue to receive
income replacement for workers' compensation under these circumstances fails to
respect the employment relationship and associated entitlement systems; in this
case, the workers' compensation safety net.
Measure is a reasonable and
proportionate means of achieving the objective
This measure is reasonable in
that it recognises and supports the rights of employers to suspend an employee,
and their entitlements, for actions endangering the safety of other employees
or the workplace. It ensures the integrity of the suspension process where
periods of suspension and compensation occur simultaneously.
This measure is reasonable and
proportionate in that, while suspended, an employee continues to receive other
workers' compensation entitlements. These include payment of medical expenses,
permanent impairment lump sum compensation, household and attendant care
services and any other benefit for which the employee is eligible. This measure
only reduces the income replacement benefit amount to zero to reflect the
amount that the employee would be earning while suspended from employment.
Payment of incapacity benefits will recommence when the period of suspension
ends.[58]
Committee response
2.172 The committee thanks the Minister for Employment for his response on
the compatibility of the measure. The committee considers that the minister's
response has demonstrated that the measure is likely to be compatible with the
right to social security and the right to an adequate standard of living. In
particular, the committee notes the minister's advice that, while suspended, an
employee continues to receive other workers' compensation entitlements
(including payment of medical expenses, permanent impairment lump sum
compensation and household and attendant care services).
Calculation of compensation – introduction of structured reductions
(Schedule 9)
2.173
Schedule 9 would also introduce structured reductions (commonly referred
to as 'step-downs') in the calculation of weekly compensation payments for
incapacity based on the period of incapacity. Currently, under the Act there is
a single step down point at approximately 45 weeks at which point compensation
is reduced to 75% of the injured employee's normal weekly earnings.
2.174
The amendments reduce compensation in three increments over a 52 week
period at the end of which the incapacity payment is capped at 70% of the
employee's average weekly remuneration.
2.175
The committee considers that the measure engages and limits the right to
social security.
Right to social security
2.176
The right to is social security is described above at paragraphs [2.97]
to [2.100].
Compatibility of the measures with the right to social
security
2.177
The statement of compatibility agrees that the measure limits the right
to social security, but explains that the objectives are to:
-
align the Comcare scheme with state and territory workers'
compensation scheme
-
address a concern identified by the [Safety, Rehabilitation and
Compensation Act] Review that a single step down point after 45 weeks creates a
disincentive for early return to work by injured employees.[59]
2.178
The committee previously agreed that the objective set out in the second
bullet point may be considered a legitimate objective for the purposes of
international human rights law. The committee also considered that the measures
may be rationally connected to the legitimate objective.
2.179
The statement of compatibility also states that the measures are
reasonable, necessary and proportionate.[60]
It explains that at all step-down stages targeted return-to-work measures will
be introduced to facilitate return to work.
2.180
The committee noted that the measures will be a matter of Comcare policy
and not a statutory requirement, and also, that whilst the earlier step-downs
may encourage earlier re-engagement with work, for those injured employees who
are unable to return to work the measures will simply mean that the injured
employee suffers earlier reductions in income support. The step-downs are
mandatory and do not take into account an employee's ability to return to work
and do not allow for flexibility in applying the step-downs. Accordingly, the
committee considered that the statement of compatibility has not justified the
measures as the least rights restrictive and therefore has not justified the
measures as proportionate.
2.181
The committee therefore sought the advice of the Minister for Employment
as to whether the measures impose a proportionate limitation on the right to
social security.
Minister's response
Calculation of compensation
- introduction of structured reductions (Schedule 9)
Right to social security
Schedule 9 to the Bill contains
amendments which provide for earlier structured reductions ('step downs') to
weekly incapacity payments.
At paragraph 1.378, the Committee
requested further information as to how these amendments were proportionate to
the legitimate objective of addressing a concern identified by the Review that
a single step down point after 45 weeks creates a disincentive for early return
to work by injured employees.
Measure is a reasonable and
proportionate means of achieving the objective
In most schemes across Australia,
there is more than one step-down of incapacity payments, with the first
step-down occurring reasonably early in the life of a claim. Victoria and South
Australia have their first step-downs after 13 weeks. The majority of States
and Territories have at least one step-down by 26 weeks. In contrast, the first
(and only) step- down in the Comcare scheme occurs much later, at 45 weeks.
The Review of the Safety,
Rehabilitation and Compensation Act 1988 considered three models of
compensation step-down and recommended a three level system of step-down that had
earlier step down points than the current scheme but ultimately resulted in
employees receiving 80 per cent of their normal weekly earnings, a higher level
than the 75 per cent currently received.
The step-down model subsequently
chosen for the SRC Act reduces the final income to 70 per cent of the
employee's pre-injury average remuneration, which is lower than the final step-downs
available in Queensland and New South Wales, where injured employees receive 85
per cent or 90 per cent respectively of their pre-injury earnings. However,
both Queensland and New South Wales significantly cap the total amount of
income replacement that can be paid to employees. It is worth noting that the
Commonwealth workers' compensation schemes (the SRC Act, the MRC Act and the Seafarers
Rehabilitation and Compensation Act 1992) as well as the Australian Capital
Territory workers' compensation scheme are the only 'long tail' schemes left in
Australia, which means that income replacement under the SRC Act is paid for
the duration of an employee's incapacity until age 65. The Bill will extend
eligibility for incapacity payments to the age of eligibility for the age pension.
The majority of long term
claimants will not be impacted by the reduction of the final stepdown from 75
per cent to 70 per cent of pre-injury average weekly remuneration. This is because
the SRC Act currently requires that for those employees who are in receipt of superannuation
payments, incapacity payments are reduced by a further 5 per cent to 70 per cent
(this requirement is being removed by the Bill). It is anticipated that
approximately 26 per cent of long term claimants[61]
will be impacted by the reduction to 70 per cent, however, these claimants may
benefit from the increased support available in the Bill for those with serious
injuries.
The Bill also significantly
increases (by over $100,000) the lump sum payable for permanent impairment and
introduces an algorithmic formula to ensure that those with more serious
impairments receive a greater proportion of the lump sum than is currently the
case.
The current weekly cap on
household and attendant care services is also being removed for those employees
who have suffered catastrophic injuries.
The final step-down will be
reduced to 70 per cent of the employee's average remuneration, while at the
same time:
-
removing the 5 per cent reduction
for those in receipt of superannuation;
-
extending the payment of
incapacity benefits in line with the increases in the age of eligibility for
the age pension;
-
significantly increasing the lump
sum permanent impairment payments for the severely injured and; and
-
removing the cap on payments for
household and attendant care support for the catastrophically injured.
This balances the reduction in
the step-downs in incapacity benefits to 70 per cent and is therefore a
proportionate limitation on the right to social security. [62]
Committee response
2.182 The committee thanks the Minister for Employment for his response on
the proportionality of the measure. The committee considers that the minister's
response has demonstrated that the measure is likely to be compatible with the
right to social security. In particular, the committee notes that at the final
step-down the amendments will also:
-
extend the payment of incapacity benefits in line with the
increases in the age of eligibility for the age pension;
-
increase lump sum permanent impairment payments for the
severely injured; and
-
remove the cap on payments for household and attendant care
support for the catastrophically injured.
Capping of legal costs (Schedule 11)
2.183
Schedule 11 of the bill proposes a new section 67A to the Act which
would allow Comcare, by legislative instrument, to prescribe a Schedule of
Legal Costs which would cap the amount of legal costs that the Administrative
Appeals Tribunal (AAT) may award under the Act. Currently, section 67 of the
Act allows the AAT to order that the costs incurred by the claimant, or a part
of those costs, be payable by the responsible authority, Comcare or the
Commonwealth.
2.184
The committee considers that this measure engages and may limit the
right to a fair hearing, in particular, the right to equal access to the courts
and tribunals.
Right to a fair hearing (equal access)
2.185
The right to a fair hearing is described above at paragraph [2.122]. All
people are to have equal access to the courts, regardless of citizenship or
other status. To be real and effective this may require access to legal aid and
the regulation of fees or costs that could indiscriminately prevent access to
justice.[63]
Compatibility of the measure with the right to a fair
hearing
2.186
The statement of compatibility recognises that the measure limits the
right to a fair hearing as it 'may discourage some claimants from bringing
proceedings and affect their representation choices'. However, it states that
the legitimate objective is to 'remove any incentives for employees to participate
in drawn out proceedings'.[64]
2.187
The statement of compatibility states that the amendment is proportionate
to that objective as the amendment will not prevent employees from incurring
legal costs that exceed the specified amounts in the schedule of legal costs,
and the amendment will bring the Comcare scheme in line with some state
schemes.
2.188
The Regulatory Impact Statement (RIS) provides additional reasons for
introducing a schedule of legal costs, including that it would limit the
potential for over-charging and over-servicing and may reduce the incentive for
individuals and their lawyers to litigate weak and unlikely claims.[65]
2.189
Ensuring that legal proceedings do not become unnecessarily drawn out
and are resolved in a timely manner is a legitimate objective for the purposes
of international human rights law and the measure is rationally connected to
that objective. However, the committee previously noted its concerns that the
measure may not be proportionate.
2.190
In particular, if the cap on the amount of legal fees that may be
awarded is set too low, a claimant may end up having to bear the majority of
his or her legal fees and may prevent that person from accessing his or her AAT
review rights, despite having a meritorious claim. The committee previously
noted that many law firms take on workplace injury cases on a 'no win no pay'
arrangement, and if the schedule of legal costs is set too low, law firms may
not provide representation for clients without the means to pay, regardless of
the merits of the claim.
2.191
The availability or absence of legal assistance often determines whether
or not a person can access judicial forums and participate in them in a
meaningful way. The right to a fair hearing encompasses a right of equal access
to the courts and tribunals, and the affordability of legal assistance can
affect the right of equal access to the courts and tribunals.
2.192
The committee therefore considered that the cap on the amount of legal
costs payable may limit the right to a fair hearing. Whether the cap on legal
costs is proportionate to meet the stated objective will depend on whether the
amount specified in the schedule of legal costs, to be set out in a legislative
instrument, is sufficient to meet the claimant's reasonable costs to litigate
their claim. The committee stated it was unable to complete its assessment as
to the compatibility of this measure until it has reviewed the relevant
schedule of legal costs to be prescribed by legislative instrument.
Minister's response
Capping of legal costs
(Schedule 11)
Right to a fair hearing
(equal access)
Schedule 11 to the Bill contains
amendments which allow for Comcare to prescribe a schedule of legal costs,
which will cap the amount that the AAT will be able to award to a successful
claimant.
The Committee, at paragraph
1.388, stated that it was unable to complete its assessment of whether this
measure is proportionate to the legitimate objective of removing incentives for
employees to participate in drawn out proceedings until it has reviewed the
schedule of legal costs.
The schedule of legal costs will
be a legislative instrument, and therefore subject to the requirements under
the LI Act. Section 17 of the LI Act requires that, before making a legislative
instrument, the rule-maker (in this case, Comcare) must be satisfied that any consultation
that is considered by the rule-maker to be appropriate and reasonably
practicable to undertake has been undertaken. Section 26 of the LI Act requires
that the explanatory statement to the legislative instrument contain either a description
of the nature of the consultation, or, if no consultation was undertaken, an explanation
as to why no consultation under section 17 was undertaken.
Furthermore, the schedule of
legal costs will be tabled before Parliament (section 38 of the LI Act),
subject to disallowance by Parliament (section 42 of the LI Act) and subject to
scrutiny by the Senate Standing Committee on Regulations and Ordinances (Senate
Standing Order 23).
In the period from 2011-12 to
2013-14, legal costs in the Comcare scheme increased by more than 34 per cent.
In 2013-14, this equated to an amount of $122,243,305(Table 1). This was driven
partly by:
-
the length of time it takes to
resolve disputes; for example, in 2012-13, nationally, 88.6 per cent of
workers' compensation disputes were resolved within nine months but only 47.7
per cent of disputes within the Comcare scheme were resolved during this time.
In comparison, Queensland and Western Australia resolved more than 90 per cent
of their workers' compensation disputes within 9 months;
-
a dispute system that offers
little incentive to resolve scheme disputes before they breach hearing stage at
the AAT-legal costs are currently not reimbursed at the reconsideration stage,
meaning there is little incentive to resolve a dispute before proceeding to the
AAT; and
-
limited ability for an employer or
Comcare to recover legal costs for a claim that is either vexatious or
dismissed by the AAT.
If dispute times are not reduced
and spending on legal costs continues to increase at this rate, the scheme will
not be sustainable in the long-term.
In addition to a schedule of legal
costs, the Bill is introducing several measures to address the spending on
legal costs and improve dispute resolution timeframes. These include:
-
statutory timeframes for initial
claim determination liability and all reconsiderations (there are currently no
timeframes);
-
in eligible cases, the scheme will
reimburse costs at the reconsideration stage providing the dispute does not
progress to the AAT. If the claimant wishes to proceed to the AAT, the claimant
will be required to repay reconsideration legal costs before being able to make
an application, but will retain current eligibility for reimbursement of
certain costs at the AAT stage; and
-
once the case has proceeded to the
AAT, a party to the proceeding (such as Comcare, or an employer) can apply for
costs to be awarded against the claimant if the application is dismissed by the
AAT (for example, because the application is frivolous or vexatious).
These steps will encourage
claimants to engage legal representation at the reconsideration stage and avoid
the lengthy dispute resolution process associated with a disputed claim
progressing to an AAT hearing. Currently, it is the AAT's practice to award a
successful applicant legal costs, including counsel's fees, at a rate equal to
75 per cent of the Federal Court scale. This is regardless of the length of
time it takes to resolve an application and offers little incentive for parties
to resolve applications as soon as possible. The schedule of legal costs, which
will be developed by Comcare, in consultation with relevant stakeholders, will
be designed to create an incentive to reduce the time taken to resolve claims
and reduce the overall cost of applications.
Table 1. Legal costs in the Comcare scheme 2009-2014
The Committee
expressed concern that, in the schedule of legal costs, the cap on the amount
of legal fees that may be awarded would be set so low that law firms may not
provide representation for clients without the means to pay. As noted above,
the schedule of legal costs will be a legislative instrument, and therefore
subject to the requirements under the LI Act. It is expected that Comcare will
undergo extensive consultations in accordance with section 17 of the LI Act
with the legal community to ensure that the schedule of legal costs both
discourages proceedings being unnecessarily drawn out and represents a fair
rate to enable employees to be able to afford legal representation. Section 26
of the LI Act requires that the explanatory statement to the legislative
instrument contain either a description of the nature of the consultation, or,
if no consultation was undertaken, an explanation as to why no consultation
under section 17 was undertaken. Furthermore, the schedule of legal costs will
be tabled before Parliament (section 38 of the LI Act), subject to disallowance
by Parliament (section 42 of the LI Act) and subject to scrutiny by the Senate
Standing Committee on Regulations and Ordinances (Senate Standing Order 23).[66]
Committee response
2.193
The committee thanks the Minister for Employment for his response.
The committee welcomes the minister's commitment that the schedule of legal
costs will represent a fair rate to enable employees to be able to afford legal
representation.
2.194
The committee notes that there is no right to legal representation under
international human rights law in civil matters. However, there is a right to a
fair trial and access to justice, and this may include access to legal
representation.
2.195
However, the minister's response has not addressed the central aspect of
the committee's concern, that the schedule of fees may be set too low to
provide access to justice and that in absence of reviewing the schedule it is
unable to conclude that the measure is compatible with the right to a fair
hearing right.
2.196
The minister notes in detail the consultation requirements under the LI
Act as providing a safeguard against inappropriately low fees being set in the
fee schedule. However as outlined above at paragraphs [2.146] to [2.147], the
LI Act provides limited protection. Accordingly, it may be possible that
scheduled fees may be set at such a low level that the most appropriately
trained and qualified legal practitioners are unwilling to provide services at
that rate.
2.197 The committee therefore considers that the cap on the amount of legal
costs payable limits the right to a fair hearing as set out in article 14 of
the International Covenant on Civil and Political Rights. Whether the cap on
legal costs is proportionate to meet the stated objective will depend on
whether the amount specified in the schedule of legal costs, to be set out in a
legislative instrument, is sufficient to meet the claimant's reasonable costs
to litigate their claim. As the schedule has not yet been developed the
committee is unable to conclude that Schedule 11 of the bill is compatible with
the right to a fair hearing.
2.198 The committee recommends that the bill be amended so that Comcare
must consult the Law Council of Australia and other relevant professional
bodies prior to establishing the cap on legal costs and to require Comcare to
ensure that the fee schedule does not unduly restrict access to the courts.
2.199 If the bill is passed, and regulations made to establish the fee
schedule the committee will review the regulation for compatibility with the right
to a fair hearing.
Changes to payments for permanent impairment
(Schedule 12)
2.200
Schedule 12 would make a number of changes to the way that compensation
for permanent impairment is calculated. A number of changes would increase
compensation to certain injured workers. In addition, the proposed changes to
the way permanent impairment is calculated will result in reduced compensation
for some injured workers.
2.201
The committee considers that the measures in Schedule 12 engage and
limit the right to social security.
Right to social security
2.202
The right to social security is described above at paragraphs [2.97] to
[2.100].
Compatibility of the measure with the right to social
security
2.203
The statement of compatibility explains that the measure limits the
right to social security for certain injured workers. It also explains that the
measures pursue the legitimate objective of:
...improv[ing] scheme equity by
better targeting support. The level of compensation payable for permanent
impairment should reflect the severity of an employee's injury and the impact
that it has on their life.[67]
2.204
The committee agreed that this is a legitimate objective for the purpose
of international human rights law and that the measures are rationally
connected to that objective.
2.205
In terms of the proportionality of the measures the statement of
compatibility explains that it is 'necessary to prioritise resources in the
Comcare scheme so that the amendments will achieve fairer outcomes that
recognise the needs of severely impaired employees'.[68]
2.206
However, in order to establish the proportionality of the amendments it
is necessary to show that the changes to calculations of permanent impairment
are the most effective in responding to degrees of impairment and that any
individual's loss of compensation under the amendments is both necessary as a
result of resource constraints and proportionate in the operation of the whole
scheme. Detailed evidence as to how the new calculation formulas have been
derived and why they are the most appropriately suited to calculating
compensation for permanent impairment is required to demonstrate that the
amendments are proportionate.
2.207
The committee therefore sought the advice of the Minister for Employment
as to whether the measures impose a proportionate limitation on the right to
social security.
Minister's response
Changes
to payments/or permanent impairment (Schedule 12)
Right
to social security
At 1.395, the Committee has
requested evidence to show that the changes to calculations of permanent
impairment are the most effective in responding to degrees of impairment and
that any individual's loss of compensation under the amendments is both
necessary as a result of resource constraints and proportionate in the
operation of the whole scheme.
The approach to the calculation
and assessment of permanent impairment compensation in Australian workers'
compensation jurisdictions is generally informed by both policy and the need to
protect the financial viability of the scheme. The diversity in approach to
assessment means that benefits can vary significantly from one scheme to another,
and that there is little capacity for scheme administrators to learn from
shared experience. Medical assessors also have difficulty in developing
assessment skills that can be used across the schemes. This is particularly
important for the Comcare scheme given its national operation.
The Hanks Review of the scheme,
undertaken in 2013, also identified deficiencies in the way the scheme
compensated the most severely impaired employees and the Government sought a cost
neutral solution that directed compensation to those who needed it most without
increasing employer costs.
At present, compensation for
permanent impairment is comprised of 2 elements - a payment to reflect the
degree of permanent impairment and a payment to reflect the loss of quality of life.
Non-economic loss is assessed both quantitatively, in reference to the
percentage of permanent impairment, and qualitatively, using questionnaires.
This process has been open to criticism on the basis that the effect on quality
of life is unpredictable and, consequently, unquantifiable. Where measurement
of a component of non-economic loss is qualitative, it is inconsistent and
highly subjective. Also, the process of calculating the permanent impairment
value already includes an assessment on the impact on activities of daily
living.
Additionally, it has been argued
that assessing the degree of permanent impairment in a linear fashion is an
overly simplistic and fails to take into account the variances between and within
impairment levels.
The Department reviewed the
methods of calculating permanent impairment lump sum compensation in other
jurisdictions and considered both linear and algorithmic models. Australian
schemes use both linear and algorithmic models to calculate the amount of compensation
payable but, because of the variability of approaches, there is no evidence to indicate
that one is better or more effective than the other. However, it was found that
the algorithmic model used in NSW more closely aligned with the policy intent
to increase compensation for the most seriously injured.
Consequently, the changes
proposed by the Bill will:
-
achieve a degree of consistency
with practices in other schemes;
-
address criticisms of the current
methods of assessment and calculation of permanent impairment;
-
provide maximum support to those
with higher levels of impairment; and·
-
achieve a higher degree of scheme
sustainability.
Under the changes, permanent impairment and non-economic loss
payments will be combined. The current combined total of these payments is
$243,000 but the maximum payable will be increased to $350,000. There will
still be assessment of the effect on quality of life but this will be part of
the overall assessment of the percentage of permanent impairment, which will
then be calculated as a percentage of overall permanent impairment.
The scheme will adopt a national permanent impairment
assessment guide that is currently being developed by Safe Work Australia. This
will allow for some jurisdictional variation but will establish nationally
consistent methods of assessment. The planned guide will be based on the
American Medical Association's Guides to the Evaluation of Permanent
Impairment, fifth edition, as amended by the NSW Scheme, and currently in
use by the NSW scheme.
Based on an analysis of models used in state schemes and
informed by the recommendations of the Hanks' Review, an algorithmic
compensation calculation model was developed that allows an increase in the
maximum compensation available to target employees with the most serious
injuries while maintaining cost neutrality in respect of all permanent
impairment compensation claims. Adoption of the NSW compensation calculation
model also provides greater alignment with Safe Work Australia's proposed
national guide for the assessment of permanent impairment, which will be based
on the permanent impairment guidelines currently used by the NSW scheme.[69]
Committee response
2.208 The committee thanks the Minister for Employment for his response on
the proportionality of the measure. The committee considers that the minister's
response has demonstrated that the measure is likely to be compatible with the
right to social security. In particular, the committee notes the minister's
advice that the current provisions are inadequate to ensure compensation is
sufficiently directed to employees with severe impairments, and that the
changes will address these inadequacies.
Removal of compensation for psychological or
psychiatric injuries and ailment that are secondary injuries (Schedule 12)
2.209
Schedule 12 would also introduce provisions that would provide that
permanent impairment compensation is not payable for psychological or
psychiatric ailments or injuries that are secondary injuries. As a result no
compensation would be payable for permanent impairment resulting from a
secondary psychological or psychiatric injury, for example, a major depressive
disorder that was the latent result of a spinal injury that arose out of, or in
the course of, employment.
2.210
The committee considers this measure engages and limits the right to
social security and the right to equality and non-discrimination.
Right to social security
2.211
The right to social security is described above at paragraphs [2.97] to
[2.100].
Compatibility of the measures with the right to social
security
2.212
The statement of compatibility explains that the measure limits the
right to social security for certain injured workers, as detailed at [2.203].[70]
2.213
The committee previously agreed that the measure sought a legitimate
objective for the purposes of international human rights law and that the
measures are rationally connected to that objective.
2.214
While the committee agreed that it is necessary to prioritise resources
in the Comcare scheme and ensure that severely impaired employees are properly compensated,
the committee noted that no evidence had been provided to explain the economic
cost to Comcare of compensating for secondary psychological or psychiatric
injuries and ailments. Accordingly, the statement of compatibility has not
justified the measure as the least rights restrictive approach.
2.215
The committee therefore sought the advice of the Minister for Employment
as to whether the measures impose a proportionate limitation on the right to
social security.
Right to equality and non-discrimination
2.216
The rights to equality and non-discrimination are protected by articles
2, 16 and 26 of the ICCPR.
2.217
These are fundamental human rights that are essential to the protection
and respect of all human rights. They provide that everyone is entitled to
enjoy their rights without discrimination of any kind, and that all people are
equal before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
2.218
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or on the basis of disability),[71]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[72]
The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral on its face or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[73]
2.219
The Convention on the Rights of Persons with Disabilities (CRPD) further
describes the content of these rights, describing the specific elements that
States parties are required to take into account to ensure the right to
equality before the law for people with disabilities, on an equal basis with
others.
2.220
Article 5 of the CRPD guarantees equality for all persons under and
before the law and the right to equal protection of the law. It expressly
prohibits all discrimination on the basis of disability.
2.221
Article 12 of the CRPD requires state parties to refrain from denying
persons with disabilities their legal capacity, and to provide them with access
to the support necessary to enable them to make decisions that have legal
effect.
Compatibility of the measures with the right to equality
and non-discrimination
2.222
As set out above at paragraph [2.213], the committee agrees that the
measure has a legitimate objective and is rationally connected to that
objective for the purposes of international human rights law.
2.223
However, the committee previously considered that the statement of
compatibility has simply asserted that the amendments are a proportionate
limitation on the right to equality and non-discrimination. No evidence has
been provided in the statement of compatibility in support of this assertion.
2.224
The committee therefore sought the advice of the Minister for Employment
as to whether the measures impose a proportionate limitation on the right to equality
and non-discrimination.
Minister's response
Removal of compensation/or
psychological or psychiatric injuries and ailments that are secondary injuries
(Schedule 12)
Right to social security
Right to equality and
non-discrimination
Schedule 12 to the Bill contains
amendments which remove compensation for permanent impairment for psychological
injuries and ailments which are secondary injuries.
The Committee, at paragraph
1.401, agreed that improving scheme equity by better targeting support [so
that] the level of compensation payable for permanent impairment should reflect
the severity of an employee's injury and the impact it has on their life. The
Committee further agreed that it is necessary to prioritise resources in the
Comcare scheme and ensure that severely impaired employees are properly
compensated.
However, the Committee requested
information and evidence to explain the economic cost to Comcare of
compensating secondary psychological or psychiatric injuries and ailments to show
that the amendments are a proportionate limitation on the right to social
security.
In the last five years, claims
for psychological conditions in the Comcare scheme have consistently increased
in both number and cost (Table 2). This has resulted in an increase in the number
and cost of claims for permanent impairment due to psychological injury, not
just for primary psychological injuries, but also for secondary psychological
injuries.
Table 2. Psychological
injury/disease claims in the Comcare scheme 2009-2014
Lump sum permanent impairment payments for psychological
injury constitute the largest single category of permanent impairment
liabilities for Comcare and are a significant liability for all employers
covered by the SRC Act. For example, in 2009-2010, approximately 20 per cent of
the total cost of all permanent impairment claims was attributed to claims for psychological
injury. Based on available data, it is difficult to quantify the proportion
that relates to secondary psychological injuries, however it is estimated that
this proportion is significant.
Measure is a reasonable and proportionate means of
achieving the objective
The removal of lump sum compensation for secondary
psychological or psychiatric permanent impairment is a proportionate means to
achieving the stated objective. This is because the removal of the entitlement
will allow for a wide range of benefits to continue to be available to injured
employees, including those with a secondary psychological condition. These
ongoing benefits are described in Table 3 and, it should be noted, include
eligibility for lump sum permanent impairment compensation (of up to $350,000)
for the primary injury.
The Government's approach to achieving the stated objective
was informed by an examination of permanent impairment lump sum compensation
practices in Australian state workers' compensation schemes. Permanent
impairment lump sum compensation is payable for primary psychological
conditions in New South Wales, Tasmania, Victoria and Western Australia, but is
not paid for secondary psychological conditions. South Australia and the ACT do
not pay any permanent impairment lump sum compensation for psychological injuries,
regardless of whether they are primary or secondary injuries.
After considering alternative state compensation models, the
Government adopted the measure it considered the least restrictive, yet allowed
it to achieve its objective of long-term sustainability and the provision of
support to the most severely injured employees in the scheme. The scheme will
continue to pay permanent impairment lump sum compensation for all primary
injuries, including psychiatric and psychological injuries, yet also increase
the maximum amount payable by over $100,000. This will ensure that adequate
support is provided for the catastrophically injured in terms of lump sum
compensation. At the same time, in order to improve long-term scheme viability,
the scheme will remove permanent impairment lump sum compensation for secondary
psychological injuries, while ensuring psychological injury claimants retain
access to all other scheme benefits. As referred to in Table 3, this includes,
but is not limited to, access to income support, medical treatment and compensation
for dependents in the event of an employee's death. [74]
Table 3. Summary of
workers' compensation benefits for eligible employees with primary and
secondary (psychological) conditions
Committee response
2.225 The committee thanks the Minister for Employment for his response.
The committee considers that the minister's response has demonstrated that the
measure is likely to be compatible with the right to social security. In
particular, the committee notes the further information provided by the
minister regarding the compensation benefits available for employees with primary
and secondary psychological conditions; and the consideration of the least
restrictive method in comparison with alternative state compensation models.
Accordingly, the committee considers that the measure is likely to be
compatible with the right to social security.
2.226
However, the committee notes that the right to equality and non‑discrimination
has not been addressed in the minister's response. The amendments engage and
limit the right to equality and non-discrimination, and the committee
previously considered that the statement of compatibility had simply asserted
that the amendments are a proportionate limitation on that right.
2.227
The statement of compatibility for the bill acknowledged that the
amendments will disproportionately affect employees suffering from
psychological or psychiatric ailments and injuries, and there is no evidence to
suggest that such a disproportionate impact is nevertheless justified.
Individuals who suffer psychological or psychiatric ailments are particularly
vulnerable and there is no reasoning provided as to why such individuals should
not be protected from the disproportionate impact of the measures.
2.228 The committee considers that the provision may be incompatible with
the right to equality and non-discrimination.
Schedule 15
2.229
Schedule 15 of the bill seeks to amend the Act relating to the
suspension and cancellation of the right to compensation. In particular, these
amendments:
-
identify key requirements of the Act that an injured employee
must comply with as 'obligations of mutuality', and
-
where obligations of mutuality have been breached, provide for
the application of sanctions in stages, culminating in a cancellation of
compensation, rehabilitation and review rights.
2.230
While many of the measures may be considered to be interrelated, the
committee considers that there are three aspects of the proposed regime for
suspending and cancelling workers' compensation that engage and may limit human
rights:
-
imposing 'mutual obligations' as conditions of continuing to
access worker compensation;
-
the process and procedure for cancellation of compensation where
there are breaches; and
-
the removal of review rights in certain circumstances.
Obligations of mutuality (Schedule 15)
2.231
The bill establishes that a number of the obligations imposed on an
injured worker by the Act are 'obligations of mutuality.' An example of one
such obligation, is an obligation on an injured worker to follow a reasonable
medical treatment advice. As the consequence of failing to meet obligations of
mutuality might include the suspension and cancellation of workers compensation
(including on a permanent and ongoing basis), the regime engages and limits the
right to health, the right to rehabilitation and the right to social security.[75]
Right to social security, right to health and right to
rehabilitation
2.232
The right to social security and the right to health are described above
at [2.97] to [2.101]. The right to rehabilitation is described above at [2.112].
Compatibility of the measure with the right to social
security, the right to health and the right to rehabilitation
2.233
The statement of compatibility states that the obligations of mutuality
engage the right to social security and the rights of persons with
disabilities.[76]
It explains that the legitimate objective of Schedule 15 is 'to improve health
and rehabilitation outcomes by ensuring that employees actively participate in
their rehabilitation and to improve the integrity of the scheme'.[77]
The statement of compatibility states that the existing mechanisms allowing for
the suspension of payments in more limited circumstances (but not for permanent
cancellation of payments) are not effective 'due to the lack of clarity about
the extent of the obligations, the consistency of their terms and their
self-executing nature'.[78]
2.234
The committee previously agreed that the measure seeks a legitimate
objective for the purposes of international human rights law, and that the
measures are rationally connected to that objective. However, the committee
found it unclear as to whether the measures are proportionate to achieve that
objective. Some of the obligations of mutuality may be drafted so broadly that
the sanctions regime that flows from breach of these obligations may not be
proportionate to the objective sought to be achieved.
2.235
On this basis the committee considered that the measure risks being more
rights restrictive than is strictly necessary to achieve the stated objective
(that is, disproportionate). Further the committee noted that the statement of
compatibility does explain why less rights restrictive measures would have been
ineffective or unworkable.
2.236
The committee therefore sought the advice of the Minister for Employment
as to whether the limitation is a proportionate means to achieve the stated
objective.
Minister's response
Obligations of mutuality
(Schedule 15)
Right to social security
Right to health and a
healthy environment
Right to rehabilitation
The Act currently provides for a
number of employee obligations which result in the suspension of all
compensation entitlements in cases of non-compliance. However, due to a lack of
clarity about the extent of the obligations, the consistency of their terms and
their self-executing nature, they do not provide effective support for the
achievement of rehabilitation and return-to-work outcomes.
Schedule 15 to the Bill contains
new provisions, which share similarities with some state and territory workers'
compensation schemes and which amend the Act to streamline and enhance the
existing regime of sanctions. In particular, these amendments:
-
identify specified activities that
an injured employee must comply with as 'obligations of mutuality'. These are
fair and reasonable activities to expect people receiving workers' compensation
payments to undertake to improve their health and their ability to work; and
-
provide for the mandatory
application of a 3-stage sanctions regime that results in the suspension of
compensation rights, and finally the cancellation of compensation, including
medical treatment, rehabilitation and most appeal rights, where obligations of
mutuality have been repeatedly breached without reasonable excuse.
The Committee has requested
clarification of the following items and that the Minister demonstrate that
they are proportionate to achieving the outcomes sought. At paragraph 1.420,
the Committee requires the Minister to show that the obligations of mutuality
are proportionate to achieving improvement of health and rehabilitation
outcomes and the integrity of the Coin care scheme.
Measure is a reasonable and
proportionate means of achieving the objective
The obligations are proportionate
as they have been drafted in such a way as to ensure they are suitably
prescriptive to ensure clarity, but broad enough to respect the limitations or scope
of the objects they prescribe. For example, an employee is required to follow reasonable
treatment advice, but the obligations do not interfere with the practitioner/patient
relationship. Also, rehabilitation and work readiness plans are highly
dependent on a number of very specific factors, not the least of which relate
to the type of injury, the patient's general health and the requirements of a
job. It is not possible to prescribe these items other than broadly without
severely limiting an employee's right to make decisions about their health,
recovery and rehabilitation.
As mentioned earlier, the Bill
takes a broad, yet suitably prescriptive approach to ensure obligations are
clarified. At paragraph 1.422 the Committee believes that the obligation to seek
suitable employment is more restrictive than is strictly necessary to achieve
the objective (i.e. disproportionate) as the bill does not specify how it will
be determined that an employee has 'failed to seek' suitable employment. The
Minister believes that this requirement is proportionate, as there is currently
a requirement in the SRC Act for an employee to undertake job seeking, with
prescribed sanctions for not meeting these obligations (s19(4)(e)). Therefore
there are already a suite of measures which are currently used to demonstrate
that job seeking obligations are being met, and which will continue to
demonstrate whether an employee is seeking suitable employment. These measures
include, but are not limited to providing copies of employees' job seeking
diaries, job applications and employer responses to job applications where
available.
The Committee is concerned
(paragraph 1.423) that that a person's right to compensation 'must be
permanently removed if the person has failed to follow medical treatment
advice'. The Bill does not require a person to follow all medical treatment
advice provided in order to avoid being subject to the sanctions or
cancellation regime. The obligation upon an employee is to follow medical
treatment advice from a legally qualified medical practitioner or legally
qualified dentist (health practitioners, such as physiotherapists or
chiropractors, are not included in this category). An employee is also able to
defer following advice in order to seek a second opinion, and where the employee
has advice from two or more medical practitioners or dentists, the employee is
free to choose which advice to follow. In addition, an employee is free to
refuse to follow medical treatment advice to undergo surgery or take or use a
medicine without breaching the obligation of mutuality. This ensures an
employee's right to alternative treatment or a treatment they prefer over
another and, so doing, preserves an employee's right to make decisions about
their own recovery. The obligation merely requires employees to actively participate
in their own treatment, whatever that may be.
The Committee was concerned in
paragraph 1.424 that the nature of a 'workplace rehabilitation plan' means that
there may be a high degree of specificity in relation to an injured employee's
responsibilities under the plan. Workplace rehabilitation plans outline the
responsibilities of an employee, their supervisor, their claims manager and/or
their rehabilitation provider. The plan is developed in consultation with an
employee so that there is mutual agreement about the ability to carry out and
comply with the content and objectives of the plan. The plan contains a greater
degree of specificity for rehabilitation providers as to how they will assist
an employee achieve the stated objectives. The responsibilities in the
workplace rehabilitation plan are generally at a high enough level that suspension
of an employee for specific activities would be appropriate.
The Committee was concerned at
paragraph 1.425 as to whether the limitation on the right to social security
and the right to health was proportionate. The sanctions regime has been developed
in an escalating framework to ensure that the consequences for non-compliance are
transparent and that the system provides an effective deterrent. The Bill
provides three levels of sanctions, making it easy for employees to understand
how their entitlements will be reduced if they breach their obligations. The
determination that an employee has breached an obligation and is subject to
level I or 2 of the sanctions regime must also be accompanied by a statement
that sets out (if the breach has not already stopped), what actions the
employee should take to stop the breach. Compensation and rehabilitation will only
be cancelled when an employee has refused, without reasonable excuse, to comply
with their obligations under the Act on three qualifying occasions. An
employee, then, will not lose their right to compensation, except where they
have made a conscious choice to breach their obligations on three qualifying
occasions.
Similarly, the scheme will not
restrict an employee's right to health, except where the employee has made a
conscious choice to not participate in activities to manage their recovery.
Such activities fall well within the boundaries of reasonableness and include attending
medical assessments, following reasonable medical treatment advice and complying
with rehabilitation obligations. The scheme cannot provide the impetus to
engage in the recovery process, but it does provide an employee with every
assistance and encouragement to do so. The sanctions recognize that most people
are willing and eager participants in the injury management and rehabilitation
process but, where it is clear that a person receiving workers' compensation
payments does not intend to engage in any, or all, of the activities designed
to facilitate their recovery and improve return-to-work outcomes, the sanctions
provisions will be engaged.[79]
Committee response
2.237 The committee thanks the Minister for Employment for his response on
the proportionality of the measure. The committee considers that the minister's
response has demonstrated that the obligations of mutuality are likely to be
compatible with the right to social security, right to health and a
healthy environment and the right to rehabilitation. In particular, the
committee notes that:
-
an employee is able to defer following medical advice in order
to seek a second opinion, and where the employee has advice from two or more
medical practitioners, the employee is free to choose which advice to follow;
and
-
the responsibilities of employee specified in the workplace
rehabilitation plan will be at a sufficiently high level that suspension of an
employee for specific activities would be appropriate.
Suspension and cancellation of compensation for
breaches of mutual obligations (Schedule 15)
2.238
Employees who breach an obligation of mutuality in relation to the same
injury or an associated injury will be subject to a 3-stage sanctions regime.
At the third stage, an employee's rights to compensation and to institute or
continue any proceedings in relation to compensation in respect of all current
and future associated injuries are permanently cancelled. This will also have
the effect of permanently cancelling the employee's right to rehabilitation.
2.239
The power to suspend and cancel workers compensation for breaches of
mutual obligation engages and limits the right to health, the right to social
security, the right to rehabilitation and the right to a fair hearing.
Right to social security, right to health and right to
rehabilitation
2.240
The right to social security and the right to health are described above
at [2.97] to [2.101]. The right to rehabilitation is described above at [2.112].
Compatibility of the measure with the right to social
security, the right to health and the right to rehabilitation
2.241
The statement of compatibility states that the obligations of mutuality
and the sanction provisions engage the right to social security and the rights
of persons with disabilities.[80]
It explains that the legitimate objective of Schedule 15 is 'to improve health
and rehabilitation outcomes by ensuring that employees actively participate in
their rehabilitation and to improve the integrity of the scheme'.[81]
The statement of compatibility says the existing mechanisms allowing for the
suspension of payments in more limited circumstances (but not for cancellation
of payments) is not effective 'due to the lack of clarity about the extent of
the obligations, the consistency of their terms and their self-executing nature'.[82]
2.242
The committee previously accepted that the objective is legitimate for
the purposes of international human rights law, and that the measures are
rationally connected to that objective. However, it remained unclear as to
whether the measures are proportionate to achieve that objective.
2.243
The statement of compatibility states that there are safeguards in the
bill that make the measures proportionate to the objective sought to be
achieved.[83]
2.244
However, suspending and cancelling an employee's right to compensation
may not be proportionate to achieve the stated objective. In particular,
permanently cancelling an employee's right to compensation, including their
right to medical treatment, may have adverse impacts on the health and rehabilitation
of the employee.
2.245
The committee therefore considered that the power to suspend and cancel
compensation payments limits the right to social security, the right to health
and the rights of persons with disabilities. The statement of compatibility
does not sufficiently justify that limitation for the purpose of international
human rights law. The committee therefore sought the advice of the Minister for
Employment as to whether the limitation is a proportionate means to achieve the
stated objective, in particular, whether the bill is drafted in the least
rights restrictive way.
Minister's response
Cancellation of
compensation for breaches of mutual obligations (Schedule 15)
Right to social security
Right to health and a healthy
environment
Right to rehabilitation
Schedule 15 to the Bill contains
amendments to the effect that employees who breach (without reasonable excuse)
an obligation of mutuality in relation to an injury or an associated injury
will be subject to a 3-stage sanctions regime. At the final stage, an employee's
right to compensation, rehabilitation and the right to continue to institute or
continue proceedings (other than in relation to the sanctions or cancellation
regime) are cancelled for that injury and any current or future associated
injuries.
At paragraph 1.430, the Committee
accepted that the stated objective of seeking to improve health and
rehabilitation outcomes (by ensuring that employees actively participate in
their rehabilitation) and improving the integrity of the Comcare scheme is a
legitimate objective. The Committee also accepted that the measures are
rationally connected to that objective. However, the Committee required further
information as to the proportionality of the amendments.
Measure is a reasonable and
proportionate means of achieving the objective
An employee's compensation rights
will only be cancelled after three breaches of an obligation of mutuality
without reasonable excuse. As discussed in the Statement of Compatibility with
Human Rights, and by reference to the High Court's judgment in Corporate
Affairs Commission v Yuill [1991] HCA 28, 'reasonable excuse' refers to
physical or practical difficulties in complying with a requirement. In order to
strongly encourage compliance with the obligations of mutuality, which are rationally
connected to the stated legitimate objective, a rigorous deterrent is needed
against refusal to comply with the obligations of mutuality, where such refusal
occurs without reasonable excuse and not because of physical or practical
difficulties in complying. It is therefore proportionate that employees who
continually refuse to comply with obligations to actively participate in their rehabilitation
and return-to-work cease to be supported by the Comcare scheme, after those repeated
breaches of the obligations of mutuality without reasonable excuse.
Paragraph 24 to the General
Comment 19 to ICESCR provides that the withdrawal, reduction or suspension of
benefits (being social security benefits) should be circumscribed, based on grounds
that are reasonable, subject to due process, and provided for in national law.
The Committee on Economic, Social and Cultural Rights noted that, under ILO
Convention No. 168 (1988) on Employment Promotion and Protection against
Unemployment, such action can only be taken in certain circumstances. One
permissible circumstance is when the person has failed without just cause to
use the facilities available for placement, vocational guidance, training,
retraining or redeployment in suitable work. This circumstance is directly
applicable to suspension or cancellation of compensation rights after failures
to meet the obligations of mutuality in relation to suitable employment. It is
also analogous to the suspension or cancellation of compensation rights where
an employee fails to meet the other obligations of mutuality. That is, in
General Comment 19, and in the ILO Convention No. 168, there exists a concept
that the right to social security may also be balanced with a concept of
requiring the recipient of social security benefits to fulfil certain
obligations to work towards reemployment. A similar concept is borne out by the
suspension and cancellation regime provisions.
Although there is no express
requirement in the Bill that requires a relevant authority to contact an
employee and undertake appropriate inquiries before determining that an employee
has breached an obligation of mutuality, procedural fairness is preserved in
the right to judicial review under the Administrative Decisions (Judicial
Review) Act 1977, the Judiciary Act 1903 and the Constitution. The
principles of procedural fairness and natural justice not only allow an
employee to seek judicial review of a decision improperly made (under the
legislation cited), they compel a decision maker to make decisions in a fair
and reasonable manner.
An employee's right to
compensation for medical treatment will not be suspended at any stage;
cancellation will occur after three breaches, without reasonable excuse, of the
obligations of mutuality. Cancellation of an employee's right to compensation
for medical treatment will not cancel an employee's right to medical treatment.
An employee whose right to compensation for medical treatment has been
cancelled will continue to have access to medical treatment, although
compensation will no longer cover the cost. In that situation, the employee,
supported by schemes such as Medicare and the Pharmaceutical Benefits Scheme, would
need to cover the cost of the necessary or desired medical treatment as though
the treatment sought was in relation to a non-work related injury suffered
outside the workers' compensation scheme.
A determination that a breach of
an obligation of mutuality has occurred cannot be made unless the relevant authority
is 'satisfied' that the employee breached an obligation of mutuality. There is
no intention in the legislation that requiring a relevant authority to be 'satisfied',
rather than 'reasonably satisfied', will lessen the test that the relevant
authority is to apply. Throughout the SRC Act, each requirement that a body be
satisfied of a particular condition is a reference that the body must be
'satisfied', rather than 'reasonably satisfied'. Even if the requirement in the
Bill were for the relevant authority to be 'reasonably satisfied', the degree
of satisfaction of the relevant authority will be immaterial if the relevant
factual pre-condition is not met on the balance of probabilities.
The Bill does not allow a
relevant authority the discretion to decide not to apply the sanctions or
cancellation regimes, or to reinstate compensation rights once they have been
cancelled. This policy decision is proportionate to the objective of strongly
encouraging compliance with the obligations of mutuality, with the deterrent
that suspension or cancellation will occur if the obligations of mutuality are
breached. It also ensures a transparent and equal process so that each employee
is treated the same under the SRC Act. An employee will not have breached an
obligation of mutuality if the employee had a reasonable excuse for complying with
the requirement.
A suspension or cancellation in
respect of an injury will also apply in respect of associated injuries.
Associated injuries are injuries which arise out of, or in the course of, the
same incident or state of affairs, or which result from another injury.
Associated injuries are also diseases which are contributed to, to a
significant degree, by the same incident or state of affairs, or which result
from another disease. As associated injuries are closely related to each other,
they are often not distinguishable for the purposes for workers' compensation.
An employee who suffers a leg injury and a back injury in an accident and whose
compensation rights were suspended as a result of a failure to follow reasonable
medical treatment in respect of the back injury would not continue to be eligible
for compensation (such as weekly incapacity payments) in respect of the leg
injury. A piece-meal approach to compensation and rehabilitation would
undermine the legitimate objective of improving health and rehabilitation
outcomes by ensuring employees actively participate in their rehabilitation.[84]
Committee response
2.246
The committee thanks the Minister for Employment for his response.
The committee remains concerned that permanently cancelling an employee's right
to compensation, including their right to medical treatment, may have adverse
impacts on the health and rehabilitation of the employee. As the committee has
previously noted, while employees would continue to have access to the social
security system, this could provide a much lower level of support, and at this
stage the National Disability Insurance Scheme is in a trial phase and the
majority of persons with a disability are not able to access support through
this scheme. As such, the permanent cancellation of a person's right to
compensation limits their right to health, right to rehabilitation and right to
social security. While the minister's response has provided some justification
for the temporary suspension of a person's right to compensation (at which time
the person will continue to receive medical treatment), the minister's response
has not adequately justified the limitation on these rights caused by the
cancellation of a person's compensation for four reasons: the measure appears
to not be the least rights-restrictive way to achieve the stated aim; the
measure lacks safeguards to ensure that the relevant authority will undertake
appropriate inquiries and hear from the affected person before taking action to
suspend, or permanently cancel, their right to compensation; the measure lacks sufficient
flexibility to treat different cases differently; and there is no discretion for the relevant authority or
the Administrative Appeals Tribunal to decide not to permanently cancel or to reinstate
compensation based on the affected employee's circumstances.
2.247
The committee remains concerned that the sanctions regime requires a
relevant authority (such as Comcare) to suspend compensation if it is
'satisfied' that an employee has breached an obligation of mutuality. There is
no requirement that the authority must be 'reasonably' satisfied. The committee
notes the minister's advice that there is 'no intention' that requiring a
relevant authority to be 'satisfied', rather than 'reasonably satisfied', will
lessen the test that the relevant authority is to apply. However, it is a
common principle of statutory interpretation that a requirement that a
decision-maker be 'satisfied' of something provides a less objective test than
that the decision-maker be 'reasonably satisfied'. The committee notes the
minister's advice that even were the requirement to be one of 'reasonably
satisfied', the degree of satisfaction of the relevant authority 'will be immaterial
if the relevant factual pre-condition is not met on the balance of
probabilities'.[85]
However, while some decisions to suspend will be based on equivocal facts (such
as, whether the person attended a treatment interview), others may involve an
assessment as to whether the person has acted appropriately, for example, did
they fully follow all medical treatment advice. Therefore, the committee
remains concerned that enabling a relevant authority to suspend compensation
(which can lead to cancellation of compensation) on the basis of being
'satisfied' of a breach of an obligation, rather than 'reasonably satisfied',
may not provide the least restrictive way to achieve the stated aim.
2.248
The committee
also remains concerned that there is no express requirement in the bill
requiring a relevant authority to contact an employee and undertake appropriate
inquiries before determining that an employee has breached an obligation of
mutuality. The minister advised that this is appropriate as a person would still
have access to judicial review of the decision to impose sanctions. However, rather
than relying on the affected person having to take expensive judicial review
proceedings to seek to enforce their right to procedural fairness, it would be
more appropriate if safeguards were included in the bill to ensure that the
relevant authority should undertake appropriate inquiries and hear from the
affected person before taking action to suspend, or permanently cancel, their
right to compensation.
2.249
The bill also does not give the relevant authority the discretion to
decide whether, in all the circumstances, compensation payments should be
suspended or cancelled. The minister advises that this is consistent with the
objective of encouraging compliance and with ensuring a transparent and equal
process. However, there may be personal circumstances that mean a person is
less able to comply or where suspension, and particularly cancellation, may
impact more heavily on that person (that do not satisfy the requirement of a
'reasonable excuse'). Under international human rights law, in considering the
proportionality of a measure it is relevant to consider whether a measure
provides sufficient flexibility to treat different cases differently.
2.250
Finally, the committee remains concerned that an employee's right
to compensation can be permanently cancelled in relation to the primary injury
as well as to any associated injuries that may later arise.[86]
This is regardless of the level of the employee's injury and the level of treatment
they may require as a result of that injury.
If the relevant breaches of the obligation of mutuality are established to have
occurred, there is no discretion for the relevant authority or the
Administrative Appeals Tribunal to decide not to permanently cancel or
reinstate compensation based on the affected employee's circumstances.
2.251 The committee therefore considers that the measures in Schedule 15 of
the bill to suspend and cancel workers compensation for breaches of
mutual obligation engage and limit the right to health, the right to social
security and the right to rehabilitation as contained in articles 9 and 12 of
the International Covenant on Economic, Social and Cultural Rights and article
26 of the Convention on the Rights of Persons with Disabilities.
2.252 For the reasons set out above, the minister's response does not
justify that limitation.
2.253 The committee recommends that, to avoid unjustifiably limiting the
right to health, the right to social security and the right to rehabilitation,
amendments to the bill should be made setting out the process to be followed
before compensation is suspended or cancelled, and to provide the relevant
authority with the discretion to decide whether to suspend or cancel
compensation in all circumstances, having regard to the personal circumstances
of the employee and the severity of their injury or disease.
Removal of review rights in certain
circumstances (Schedule 15)
2.254
Schedule 15 of the bill also includes measures that limit judicial and
merits review of decisions made by Comcare under the scheme. Specifically,
where an injured worker is subject to the suspension and cancellation regime
(whether at stage 1, 2 or 3), the bill provides that the injured worker is
barred from instituting or continuing any proceedings in relation to
compensation under Act for the injury or associated injury other than
proceedings in the AAT in relation to the sanction regime.
2.255
The committee considers that this measure engages and limits the right
to a fair hearing.
Right to a fair hearing
2.256
The right to a fair hearing is described above at paragraph [2.122].
Compatibility of the measure with the right to a fair
hearing
2.257
The statement of compatibility states that as the measure provides for
the suspension and cancellation of an injured employee's right to institute or
continue any proceedings (both merits review and judicial review) under the Act
in relation to compensation for any current or future associated injury, the
measure engages the right to a fair hearing.[87]
2.258
The statement of compatibility states that the objective of the
amendments is to improve health and rehabilitation outcomes by ensuring that
employees actively participate in their rehabilitation and to ensure the
integrity of the scheme. The committee previously agreed that this may be
considered a legitimate objective for the purposes of international human
rights law.
2.259
However, based on the information provided, the committee considered
that the proposed removal of the right to review may not be rationally
connected to, and a proportionate way to achieve, its stated objective so as to
be a justifiable limitation under international human rights law.
2.260
First, the committee considered that there is not a clear link between
the stated objective and the removal of review rights. No evidence or
information has been provided in the statement of compatibility to explain how
the removal of review rights would be effective or capable of achieving this
stated objective.
2.261
Second, the committee noted that the statement of compatibility has not
shown that removal of review rights is the least rights restrictive alternative
to achieve the stated objective.
2.262
The committee therefore sought the advice of the Minister for Employment
as to whether there is a rational connection between the limitation and the
stated objective of the measure to improve health and rehabilitation outcomes
by ensuring that employees actively participate in their rehabilitation and to
ensure the integrity of the scheme, and whether the limitation is a reasonable
and proportionate measure for the achievement of that objective.
Minister's response
Removal of review rights in
certain circumstances (Schedule 15)
Right to a fair hearing
The current suspension mechanisms
in the SRC Act discussed above in the context of mutual obligations are:
-
not fair in that they operate
automatically to suspend compensation and can result in overpayments spanning
long periods;
-
not consistent (for example, the
sanction relating to the suitable employment obligations differs to the
sanction relating to rehabilitation obligations); and
-
not effective in supporting the
existing compliance framework.
To address these issues, Schedule
15 to the Bill provides for the suspension of an employee's rights to institute
or continue proceedings in relation to compensation (other than proceedings in
the AAT in relation to the sanctions regime). However this will only occur
while the employee:
-
is subject to either the level 1
or 2 sanctions regime because of a breach of mutuality (other than an
obligation relating to suitable employment) and
-
remains in breach of the obligation.
If an employee becomes subject to
the cancellation regime, the employee's rights to institute or continue any
proceedings in relation to compensation and rehabilitation (other than proceedings
in the AA T in relation to the sanctions regime) are cancelled. These
amendments only apply in so far as the rights relate to that injury (or an
associated injury).
At paragraph 1.441, the Committee
agreed that the stated objective of improving health and rehabilitation
outcomes (by ensuring employees actively participate in their rehabilitation) and
to ensure the integrity of the scheme is a legitimate objective. However, the
Committee required further information as to the rational connection to the
objective and proportionality of the amendments.
In particular, the Committee has
requested information to explain how the removal of review rights would be
effective or capable of achieving this stated objective or that this is the
least restrictive rights alternative.
The rational connection between
the objective and these amendments is to support active engagement in the
rehabilitation process by employees through a mix of encouragement and sanctions
in the form of a graduated response to employees who are not actively engaged
in their recovery and rehabilitation.
Effective rehabilitation requires
active participation. It is detrimental to the health outcomes of an injured
employee for that employee to remain the passive recipient of compensation where
the employee has some capacity or potential to be in suitable employment. An employee's
return to work will clearly be impeded if that employee chooses not to engage
in the process.
Early recovery from injury brings
with it a range of benefits, for both injured employees and their employers.
For employees, there is the obvious benefit of recovering from injury more quickly,
and returning to work and life. For employers, early rehabilitation means that
the investment in existing employees is not lost, productivity and workplace
morale are improved and premiums (for premium payers) compensation costs (for
licensees) are lowered.
As discussed above, in the
context of the definition of suitable employment, the majority of employees are
actively engaged in their rehabilitation and return to work. There is only a small
percentage of employees for whom mandating a return to work is required. To
provide for such employees to institute or pursue proceedings in relation to
compensation while they are subject to the sanctions regime would defeat the
purpose of the regime and contribute to unnecessary costs and delay being
incurred by parties to the proceedings.
As discussed above, before
determining that an employee has breached an obligation of mutuality resulting
in the suspension, requirements to procedural fairness are preserved in the right
to judicial review under the Administrative Decisions (Judicial Review) Act
1977, the Judiciary Act 1903 and the Constitution. The principles of
procedural fairness and natural justice not only allow an employee to seek
judicial review of a decision improperly made (under the legislation cited),
they compel a decision maker to make fair and reasonable decisions.
The amendments are reasonable and
proportionate because they do not affect an employee's rights of review and to
pursue proceedings in the AAT in relation to the sanctions regime. They provide
for an effective means of graduated enforcement response to ensure that injured
employees are actively engaged in their recovery and rehabilitation. They are
proportionate in that they are complemented by other more supportive amendments
proposed including early access to medical treatment and rehabilitation and
access to a greater range of suitable employment options that must be
responsive to the recovery and personal circumstances of an injured employee.[88]
Committee response
2.263
The committee thanks the Minister for Employment for his response. The
committee previously considered that the statement of compatibility had
not shown that removal of review rights is rationally connected to the
objective or that it is the least rights restrictive alternative to achieve the
stated objective.
2.264
In light of the Minister’s response, the committee continues to consider
that there does not appear to be a rational connection between the objective of
improving health and rehabilitation outcomes and removing rights of review. The
minister's response states that the removal of review rights will 'support active
engagement in the rehabilitation process' and '[e]ffective rehabilitation
requires active participation'. The minister goes on to say that it is detrimental
to the health outcomes of an injured employee 'for that employee to remain the
passive recipient of compensation'. However, the minister's response does not
explain how actively seeking review of a decision that the injured employee
considers has been wrongly engaged would affect that person's health outcomes.
2.265
In terms of proportionality, much of the response is focused on general
information about the importance of an employee's engagement with their own
rehabilitation and that only a small proportion of employees are not
appropriately engaged. While this information may be relevant to the
application of the broader mutual obligation arrangements, the specific issue
is whether or not barring an employee from instituting or continuing any
proceedings in relation to compensation under Act for the injury or associated
injury while they are subject to the suspension and cancellation regime
(whether at stage 1, 2 or 3), is a proportionate limitation on fair hearing
rights.
2.266
The response states that allowing employees to institute or pursue
proceedings in relation to compensation while they are subject to the sanctions
regime would defeat the purpose of the regime and contribute to unnecessary costs
and delay being incurred by parties to the proceedings. However, the response
does not address that for an employee the pursuit of compensation (and delays
in resolving a claim) and the mutual obligation regime may be closely linked
and frustration with the process of a compensation claim may legitimately
affect their willingness and ability to meet requirements of mutual obligation.
Moreover, the response does not explain why it is necessary and proportionate
to impose the bar on compensation proceedings where the employee is only
subject to a stage 1 or 2 breach. Accordingly, it has not been demonstrated
that this is a proportionate limitation on the right to a fair hearing.
2.267 The committee considers that the power to suspend and cancel the
right to institute or continue proceedings limits the right to a fair hearing
as provided for by article 14 of the International Covenant on Civil and
Political Rights.
2.268 For the reasons set out above, the minister's response does not
justify this limitation the purpose of international human rights law.
Accordingly, the committee considers that the measures may be incompatible with
the right to a fair hearing.
2.269 The committee has concluded its examination of the bill.
Seafarers Rehabilitation and
Compensation and Other Legislation Amendment Bill 2015
Portfolio: Employment
Introduced: House of Representatives, 2 October
2014
Purpose
2.270
The Seafarers Rehabilitation and Compensation and Other Legislation Amendment
Bill 2015 (the bill) amends the Seafarers Rehabilitation and Compensation
Act 1992 (the Seafarers Act) and the Occupational Health and Safety
(Maritime Industry) Act 1993 (the OHS(MI) Act) to clarify coverage of those
Acts.
2.271
The Seafarers Act provides workers compensation and rehabilitation
arrangements for seafarers in a defined part of the Australian maritime
industry. The OHS(MI) Act regulates work, health and safety for a defined part
of the maritime industry. Together, these Acts are referred to as the 'Seacare
scheme'.
2.272
The amendments:
-
repeal provisions that apply the Seacare scheme to any employees
employed by a trading, financial or foreign corporation;
-
provide that the Seacare scheme applies to the employment of
employees on a prescribed ship that is 'directly and substantially' engaged in
interstate or international trade or commerce; and
-
make technical amendments to ensure that, where an employee's
employment is not covered by the Seacare scheme, their employer will not be
liable for a levy in respect of that employee.
2.273
Amendments were made to the bill during its passage to ensure that the
bill only applied to incidents occurring between 24 June 1993 and
26 May 2015 (the date of Royal Assent), and not prospective
incidents. Instruments were made to deal with any prospective claims.[89]
Amendments were also made to ensure that claims under the Seacare scheme that
had been finalised or had been made before the bill received Royal Assent,
would not be affected.
2.274
Measures raising human rights concerns or issues are set out below.
Background
2.275
The committee previously considered the bill in its Twentieth Report
of the 44th Parliament (previous report) and requested further
information from the Minister for Employment as to whether a number of measures
in the bill were compatible with human rights.[90]
2.276
The bill passed both Houses of Parliament on 14 May 2015 and achieved
Royal Assent on 26 May 2015.
Alteration of coverage of persons eligible for workers compensation
2.277
The bill initially amended the existing legislation to ensure that
workers on ships engaged in intra-state voyages were not covered by the Seacare
scheme, both historically and prospectively. This would result in such workers
no longer having an entitlement to compensation under the Seafarers Act, as
from 1993. Instead, such workers would be covered by the relevant workers'
compensation and work health and safety legislation of the state in which they
work.
2.278
The amendments to the bill mean that workers injured on ships engaged in
intra-state voyages between 1993 and May 2015 will not be covered by the
Seacare scheme (though if any claims had already been made or finalised these
will not be affected). For those injured on such ships after 26 May 2015 the
bill will not apply to them (although instruments made in March[91]
provide that the Seacare scheme will not apply to any prospective injuries).
2.279
The committee considered in its previous report that amending the
Seacare scheme to remove an entitlement to compensation engages and may limit
the right to social security.
Right to social security
2.280
The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right recognises the importance of adequate social benefits in reducing the effects
of poverty and plays an important role in realising many other economic, social
and cultural rights, particularly the right to an adequate standard of living
and the right to health.
2.281 Specific
situations and statuses which are recognised as engaging a person's right to
social security, include health care and sickness; old age; unemployment and
workplace injury; family and child support; paid maternity leave; and
disability support. It also includes the protection of workers injured in the
course of employment.
Compatibility of the measure with the right to social security
2.282
The statement of compatibility states that the bill is intended
to align the coverage of the Seafarers Act with the understanding of the scheme
prior to the Full Court of the Federal Court's decision in Samson Maritime
Pty Ltd v Aucote [2014] FCAFC 182 (the Aucote decision), and that as
a consequence some workers will no longer have an entitlement to compensation
under the Seafarers Act. While this is acknowledged to be a potential
limitation of the right to social security, the statement of compatibility assesses
the measure as compatible with the right.
2.283
The committee noted previously that, to the extent that the state
schemes are less generous than the Seacare scheme, the measure may be regarded
as a retrogressive measure. Under article 2(1) of the ICESCR, Australia has
certain obligations in relation to economic and social rights. These include an
obligation not to unjustifiably take any backwards steps (retrogressive
measures) that might affect the right to social security.
2.284
While ensuring the long-term viability of maritime industry employers
and sustainability of the Seacare scheme is likely to be a legitimate objective
for the purposes of international human rights law, the committee considered
that it is unclear, on the basis of the information provided in the statement
of compatibility, whether the measure may be regarded as proportionate to this
objective.
2.285
The committee therefore sought the advice of the Minister for
Employment as to the extent of differences in levels of coverage and
compensation between the Seacare scheme and state and territory workers'
compensation schemes.
Minister's response
The Committee has raised concerns regarding the potential
impact of the Bill on a purported right to social security. This Bill simply
sought to address a Federal Court decision which fundamentally changed the
historic application of the Act and would have left thousands of formerly
injured workers in a state of limbo.
But for the Government's swift action, the Federal Court
decision meant there was the potential for workers who had been compensated
under the Seacare scheme to repay all monies paid and to have those claims
reassessed under the relevant state scheme that applied at the time of injury
in the state where the injury occurred. It is disappointing that the
Committee's report failed to reflect this fact.
Following the introduction of the Government amendments, the
Bill was passed in the Senate on 13 May 2015 with the support of Government,
Opposition and Greens Senators. The Bill was passed in the House on 14 May
2015.
The Government amendments to the Bill adequately address the
concerns of the Committee that the Bill may limit access to compensation under
the Seafarer Act for some seafarers who have historically been considered to be
covered by the Act. To any extent that the Bill limits the rights of seafarers
who have been injured and received compensation under state workers'
compensation legislation to claim additional compensation under the Seafarers
Act, this is proportionate and appropriate since the Bill also protects the
sustainability of the Seacare scheme, limits the exposure of maritime industry
employers to compensation claims for which they are not likely to be insured
and will assist with protecting the validity of compensation payments already
paid to seafarers under state workers' compensation legislation.[92]
Committee response
2.286 The committee
thanks the Minister for Employment for his response.
2.287 The committee
notes that it had requested specific advice from the Minister for Employment as
to the extent of differences in levels of coverage and compensation between the
Seacare scheme and state and territory workers' compensation schemes. The
minister's response did not address this specific question. This makes it
difficult for the committee to assess whether workers will be adversely
affected by these changes and the extent of any limitation on the right to
social security.
2.288 The committee
notes the minister's comments that the government amendments made to the bill
'adequately address the concerns of the Committee that the Bill may limit
access to compensation under the Seafarer Act for some seafarers who have
historically been considered to be covered by the Act'. However, the minister's
response fails to explain the nature of the amendments made and how these have
addressed the committee's concerns.
2.289 The amendments
made to the bill are highly technical (and interact with instruments that have
also been made) and it would have been helpful if the minister's response had
explained the effect of these amendments. The committee understands that the
effect of the amendments are that the bill has no prospective coverage, but it
does remove the entitlement to the federal Seacare scheme for workers injured
on intra-state ships between 1993 and May 2015.
2.290 As such, the
right to social security (which includes a right to workers' compensation) for
these workers appears to still be limited (if indeed the federal Seacare scheme
provides greater coverage than the state schemes).
2.291 The minister's
response provides some analysis of whether any such limitation is
proportionate, stating that to the extent that the bill limits the rights of
workers to claim additional compensation under the Seacare scheme, this is
proportionate for three reasons:
-
it protects the sustainability of the Seacare scheme;
-
it limits the exposure of maritime industry employers to
compensation claims for which they are not likely to be insured; and
-
it will assist with protecting the validity of compensation
payments already paid to seafarers under state workers' compensation
legislation.
2.292 The committee
notes that these reasons would seem to more appropriately go towards
establishing the legitimate objective of the bill, rather than whether the
limitation on the right to social security is proportionate to the objective
being sought.
2.293 The committee
has previously accepted that ensuring the long-term viability for maritime
industry employers and the sustainability of the Seacare scheme is likely to be
a legitimate objective for the purposes of international human rights law.
2.294 No information
is given to the committee to understand whether any compensation payments
already paid under state legislation would be affected (as it is not clear to
the committee that being entitled to additional compensation would render any
compensation already paid null and void). Therefore, the committee is unable to
assess the impact of these measures.
2.295 No reasoning is
provided to explain whether any limitation on the workers' right to
compensation is proportionate to the objective being sought, in that no
analysis is provided as to the impact of the changes on affected workers and
whether there were any less restrictive ways to achieve the same aim.
2.296 As the
minister's response did not answer the committee's question as to the extent of
differences in levels of coverage and compensation between the Seacare scheme
and state and territory schemes, the committee is unable to assess the extent
of the limitation on the right to social security for workers affected between
1993 and 2015. The minister's response also failed to explain whether any
limitation on this right was proportionate to the objective being sought. As
such, the committee is unable to conclude that the amendments to restrict the
application of the Seacare scheme to injuries that occurred between 1993 and
May 2015 is compatible with the right to social security. The committee has
concluded its examination of the bill.
Social Services Legislation Amendment
Bill 2015
Portfolio: Social Services
Introduced: House of Representatives, 25 March 2015
Purpose
2.297
The Social Services Legislation Amendment Bill 2015 (the bill) seeks to amend
the Social Security Act 1991 to cease social security payments to
certain people who are in psychiatric confinement. This will apply to new and
existing psychiatric patients, including:
-
those unfit to plead;
-
those on limiting terms (which is a cap on the period that a
person can be confined, applied to certain psychiatric patients);
-
those found 'not guilty' by reason of mental illness.
2.298
Measures raising human rights concerns or issues are set out below.
Background
2.299
The committee previously considered the bill in its Twenty-second
Report of the 44th Parliament (previous report), and requested
further information from the Minister for Social Services as to whether the
bill was compatible with Australia's international human rights obligations.[93]
Ceasing social security payments to certain people who are in psychiatric
confinement
2.300
The measures in the bill would result in certain individuals who are in
psychiatric confinement because they have been charged with a serious offence
losing existing entitlements to social security payments. The bill engages and
limits the right to social security.
Right to social security
2.301
The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right recognises the importance of adequate social benefits in reducing the
effects of poverty and plays an important role in realising many other
economic, social and cultural rights, particularly the right to an adequate
standard of living and the right to health.
2.302
Access to social security is required when a person has no other income
and has insufficient means to support themselves and their dependents.
Enjoyment of the right requires that sustainable social support schemes are:
-
available to people in need;
-
adequate to support an adequate standard of living and health
care; and
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent; and
-
affordable (where contributions are required).
2.303
Under article 2(1) of ICESCR, Australia has certain obligations in
relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.304
Specific situations which are recognised as engaging a person's right to
social security, include health care and sickness; old age; unemployment and
workplace injury; family and child support; paid maternity leave; and
disability support.
Compatibility of the bill with the
right to social security
2.305
The statement of compatibility states that the bill engages the right
to social security together with rights to social protection and the right to
an adequate standard of living. However, it states that whilst individuals are
in psychiatric care, they are receiving benefits in kind and do not require
social security. The analysis in the statement of compatibility appears to
assume that the 'in kind' benefits provided are of equal or equivalent value to
the social security payments an individual would be entitled to if they were
not under psychiatric care. No analysis or evidence is provided to substantiate
this assumption. No information is provided in the statement of compatibility
as to what is the legitimate objective being sought or how the limitation on
the right is proportionate to achieving that objective.
2.306
The committee considered in its previous report that the amendments,
which would result in certain individuals who are in psychiatric confinement
because they have been charged with a serious offence losing existing
entitlements to social security, engages and limits the right to social
security. The committee considered that the statement of compatibility has not
explained the legitimate objective for the measure. The committee therefore
sought the advice of the Minister for Social Services as to whether the
proposed changes are aimed at achieving a legitimate objective, whether there
is a rational connection between the limitation and that objective, and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective.
Minister's response
The Committee seeks advice whether the proposed changes
are aimed at achieving a legitimate objective.
This policy is intended to ensure the integrity and
sustainability of the income support system. The purpose of social security
payments such as the Disability Support Pension is to provide a safety net for
those most in need to help meet their daily living needs in the community. It
is the responsibility of states and territories to provide for a person who is
in prison or psychiatric confinement in accordance with a state or territory
law. Part of this responsibility is to provide for a person's basic needs such
as sustenance, health care and shelter. The Australian Government considers
that a person who is undergoing psychiatric confinement because they have been
charged with a serious offence will have their basic needs met by the state or
territory, in the same way as a person who is on remand or convicted and held
in prisons. It is therefore a legitimate objective to provide that a person is
not eligible to receive a social security payment while they are undergoing
that confinement.
The Committee seeks advice whether there is a rational
connection between the limitation and that objective.
The amendments made by the Bill will ensure the same social
security treatment for people charged with a serious offence in the criminal
justice system, whether they are confined in a psychiatric institution or
prison. The amendment will support the original intent of section 1158 of the Social
Security Act 1991 (the Act), that income support payments are not payable
to a person who is in gaol or a person who is undergoing psychiatric
confinement because the person has been charged with an offence.
The Act currently provides that a person is not taken to be
undergoing psychiatric confinement while the person is undertaking a course of
rehabilitation. In Franks v Secretary, Department of Family & Community
Services [2002] FCAFC 436, the Federal Court considered that 'a course of
rehabilitation' should be interpreted broadly. The effect of this decision is
that the vast majority of people who are undergoing psychiatric confinement
will be taken to be undertaking a course of rehabilitation. This means that a
social security payment will be payable to almost everyone who is undergoing
psychiatric confinement because the person has been charged with an offence.
This broad interpretation of when a person is undertaking a
course of rehabilitation is not however consistent with the original policy intent
that most people who are undergoing psychiatric confinement as a result of
being charged with an offence are not eligible to receive social security
payments.
Providing that a social security payment is not payable to a
person who is undergoing psychiatric confinement because the person has been
charged with a serious offence, seeks to support the original policy intent and
will assist albeit in a small way, in ensuring the sustainability of the social
security system by ensuring that payments are appropriately targeted to those
in need.
The Committee seeks advice whether the limitation is a
reasonable and proportionate measure for the achievement of that objective.
This policy is proportionate and will not have an
unreasonable impact on persons in psychiatric confinement because they are
already receiving in-kind benefits in the form of accommodation and other
services in the relevant institution where they are confined.
This policy does not have a punitive intent, rather it is a
recognition that people in these circumstances, like those in gaols, have a
reduced need for social security payments as their basic needs are met by the
states and territories that confine them.
This measure will not apply to a person who is undergoing
psychiatric confinement because they have been charged with an offence that is
not a serious offence, or for reasons unrelated to the commission of an
offence. The Government recognises that people can be caught up in criminal
proceedings, and then psychiatric confinement, by being charged with minor
offences that in some cases would not result in them being confined if they did
not have a disability.
With regards to the impact of this measure on the families of
patients, the current arrangements for social security payments make provisions
for the partners of people in psychiatric confinement. While a social security
payment recipient's partner is imprisoned or undergoing psychiatric confinement
because the partner has been charged with an offence, the recipient can be paid
a higher partnered rate of their social security payment which is equal to the
single rate of the payment. Where a social security recipient was a carer for a
child (or other person) prior to undergoing psychiatric confinement, and that
caring responsibility has passed to another person, that other person is able
to claim social security payments in respect of the child (or person), subject
to all standard eligibility criteria. This may include Parenting Payment,
Family Tax Benefit, Carer Payment and Carer Allowance.
The Government recognises that the transition of these
vulnerable people from psychiatric confinement back into the community is not
as straightforward as for those who have been imprisoned. It is for this reason
that the Bill allows for a Legislative Instrument to be made to set out
circumstances in which a person can be taken to be in a period of integration
back into the community. During this period, the person will not be taken to be
undergoing psychiatric confinement and as a result, they may be eligible to
receive social security payments, particularly where the person has a degree of
autonomy. The Government believes that this goes some way to support the
original intent of the psychiatric confinement provisions in the Act, and is a
reasonable and proportionate way to address this issue.[94]
Committee response
2.307
The committee thanks the Minister for Social Services for his
response. The response states, in terms of the bill's legitimate objective
and the proportionality of the measure, that 'a person who is undergoing
psychiatric confinement because they have been charged with a serious offence
will have their basic needs met by the state or territory, in the same way as a
person who is on remand or convicted and held in prisons.'
2.308
However this statement assumes direct equivalence between the needs of
persons held in psychiatric confinement and those in prison. It also assumes
that the services provided by the state and territories for those in
psychiatric care fully meet their needs for social security.
2.309
However, no evidence is provided to support this statement. Forensic
patients often have significant mental health conditions and their recovery and
rehabilitation can be a gradual process and one that is not necessarily linear.
Recovery and rehabilitation programs run by the states and territories
typically provide for graduated periods of return to the community and during
such periods individuals are reliant on their social security payments to meet
their expenses whilst in the community. It is not clear how the states and
territories would meet these costs.
2.310
Moreover persons in psychiatric confinement are often confined for
indefinite periods of time, the length of which will be determined by the
extent to which they are able to recover sufficiently to return to the
community. For some patients, this may be a relatively short period and in such
cases it would be reasonable that such individuals may have ongoing expenses
which they meet from their social security payments including rent and other
periodic payments. How such payments would be made in the absence of social
security payments is not set out in the response.
2.311
The minister's response notes that a legislative instrument will be made
to set out circumstances in which a person will be considered to be undertaking
integration back to the community and, as such, eligible for social security
payments. While this is a welcome measure, it does not completely address the
limitation on the right social security imposed by the bill.
2.312
In the absence of the terms of the instrument, it is not possible to
determine whether the instrument will fully address the needs of those undertaking
graduated return to the community or whether such an instrument fits within the
broad range of programs and procedures of each state and territory.
2.313
Given the important distinction between prisoners and those in
psychiatric confinement, particularly in terms of the way in which they return
to the community, it would be a more robust safeguard if the information
proposed to be included in the legislative instrument was included in the bill.
2.314
While it may be proportionate to remove the social security benefits of
those patients for whom there is no likelihood of undertaking a graduated
return into the community (as it may be said in such circumstances that all
their needs would be met while in confinement) this does not apply to those who
may have graduated periods of return to the community.
2.315
Accordingly, the committee considers that the bill, which would
result in certain individuals in psychiatric confinement losing existing
entitlements to social security, may be incompatible with the right to social
security. The committee recommends that the bill be amended to set out the
circumstances in which a person will be considered to be undertaking
integration back to the community and, as such, eligible for social security.
Migration Legislation Amendment (2014 Measures
No. 2) Regulation 2014 [F2014L01461]
Portfolio:
Immigration and Border Protection
Authorising
legislation: Migration Act 1958 and Australian Citizenship Act 2007
Last day to
disallow: 25 March 2015
Purpose
2.316
The Migration Legislation Amendment (2014 Measures No. 2)
Regulation 2014 (the regulation) amends the Migration Regulations 1994 to:
-
extend the entry period (the period between the grant of the visa
and entry into Australia) and maximum period of stay (the period between entry
into Australia and exit out of Australia) from three months to six months for a
Subclass 400 (Temporary Work (Short Stay Activity);
-
enable automated processing of persons departing Australia;
-
enable the Minister for Immigration and Border Protection to
authorise the disclosure of certain information (including personal
identifiers) about visa holders to the CrimTrac Agency (CrimTrac);
-
expand the scope of personal information that can be disclosed to
the police to include certain identification reference numbers, and to allow
those identifiers and certain information currently disclosable to the police
to be disclosed to the CrimTrac Agency;
-
allow applicants for student visas who are enrolled in Advanced
Diploma courses with an approved education provider to access streamlined visa
processing arrangements;
-
amend the definition of 'financial institution' applicable to all
student visas to clarify that both the financial institution and the regime
under which that institute operates must meet effective prudential assurance
criteria; and
-
exempt persons who were minors at the time of application from
the exclusion periods applied by public interest criterion (PIC) 4020 regarding
grant of a visa.
2.317
The Regulation also amends the Australian
Citizenship Regulations 2007 (Citizenship Regulations) to:
-
allow children adopted by Australian citizens in accordance with
a bilateral arrangement to be registered as Australian citizens; and
-
update references to instruments made by the minister that enable
a person to pay fees at the correct exchange rate for an application made under
the Australian Citizenship Act 2007 (Citizenship Act) in a foreign
country and using a foreign currency.
2.318
Measures raising human rights concerns or issues are set out below.
Background
2.319
The committee previously considered the regulation in its Twenty-Second
Report of the 44th Parliament (previous report) and requested
further information from the Minister for Immigration and Border Protection as
to whether a number of measures in the regulation were compatible with human
rights.[95]
Registration of children adopted from countries that are not party to the
Hague Convention as citizens
2.320
As noted at [2.317] above the regulation amends the Citizenship
Regulations to allow children adopted by Australian citizens in accordance with
a bilateral arrangement to be registered as Australian citizens. Previously
section 6 of the Citizenship Regulations provided only for children adopted by
an Australian citizen in accordance with the Hague Convention on Protection of
Children and Co-operation in respect of Intercountry Adoption to be registered
as Australian Citizens (Hague Convention).[96]
2.321
This aspect of the regulation reflects the amendments in the Australian
Citizenship Amendment (Intercountry Adoption) Act 2015 (the Act) which allowed
for the acquisition of Australian citizenship by a person adopted outside
Australia by an Australian citizen in accordance with a bilateral arrangement
between Australia and another country. Specifically, the Act amended the
Citizenship Act to create an entitlement to citizenship for persons adopted in
accordance with a bilateral arrangement.[97]
The entitlement is equivalent to that provided to persons adopted in accordance
with the Hague Convention.[98]
2.322
The Act received Royal Assent on 25 February 2015 after passing both Houses
of Parliament. The committee first reported on the Australian Citizenship
Amendment (Intercountry Adoption) Bill 2014 (the bill) in its Eighth Report
of the 44th Parliament and raised concerns in relation to
the compatibility of the bill with the rights of the child.[99]
The committee reported on the minister's response in its Tenth Report of the
44th Parliament and concluded that the bill was likely to be
incompatible with the rights of the child.[100]
2.323
The committee considers that the regulation engages and limits the
obligation to consider the best interests of the child as set out below.
Rights of the child
2.324
Children have special rights under human rights law taking into account
their particular vulnerabilities. Children's rights are protected under a
number of treaties, particularly the Convention on the Rights of the Child
(CRC). All children under the age of 18 years are guaranteed these rights. The
rights of children include:
-
the right to develop to the fullest;
-
the right to protection from harmful influences, abuse and
exploitation;
-
family rights; and
-
the right to access health care, education and services that meet
their needs.
2.325
State parties to the CRC are required to ensure to children the
enjoyment of fundamental human rights and freedoms and are required to provide
for special protection for children in their laws and practices. In
interpreting all rights that apply to children, the following core principles
apply:
-
rights are to be applied without discrimination;
-
the best interests of the child are to be a primary
consideration;
-
there must be a focus on the child's right to life, survival and
development, including their physical, mental, spiritual, moral, psychological
and social development; and
-
there must be respect for the child's right to express his or her
views in all matters affecting them.
Compatibility of the measure with
the obligation to consider the best interest of the child
2.326
Article 21 of the CRC provides special protection in relation to
inter-country adoption, seeking to ensure that it is performed in the best
interests of the child. Specific protections include that inter-country
adoption:
-
is authorised only by competent authorities;
-
is subject to the same safeguards and standards equivalent to
which apply to national adoption; and
-
does not result in improper financial gain for those involved.
2.327
The Hague Convention establishes a common regime, including minimum
standards and appropriate safeguards, for ensuring that inter-country adoptions
are performed in the best interests of the child and with respect for the
fundamental rights guaranteed by the CRC. The Hague Convention also assists in
combatting the sale of children and human trafficking.
2.328
As noted in the committee's previous analysis of the bill, compliance
with the Hague Convention is a critical component of ensuring the protections
required by article 21 of the CRC are maintained in any inter-country adoption.[101]
The minister has previously acknowledged that whether Australian inter-country
adoption arrangements meet Hague Convention standards is relevant to compliance
with article 21 of the CRC.[102]
2.329
The committee previously considered that providing for the registration
of children adopted through inter-country adoption proceedings engages and may
limit the rights of the child, and in particular the obligation to ensure that
inter-country adoption is performed in the best interests of the child.
2.330
As the committee noted in its consideration of the bill (now Act), the
limitation potentially arises as it specifies no standards or safeguards that
will apply to inter-country adoptions under a bilateral agreement, and it is
therefore not clear whether lower standards, or fewer safeguards, may apply to
inter-country adoptions under a bilateral agreement than those that apply under
the Hague Convention and the framework it sets out to ensure the best interests
of the child. Neither are such standards or safeguards contained in this or
other regulations.[103]
2.331
The Australian government previously advised that it only establishes
international adoption arrangements with countries which can apply the standards
required by the Hague Convention. However, this response did not provide
information on how Australia establishes that a country that is not a party to
the Hague Convention can nevertheless apply the standards required by that
convention.[104]
2.332
On the basis of this information and the committee's analysis, the
committee was of the view that the information provided by the minister was
insufficient to support a conclusion that the bill (now Act) is compatible with
article 21 of the CRC. The committee therefore concluded that the bill (now
Act) is likely to be incompatible with Australia's international human rights
obligations under the CRC.[105]
2.333
The committee previously noted the statement of compatibility provides
no further information in respect of these matters in response to this
conclusion. Rather, the statement of compatibility asserts that the measure
does not engage the rights of the child. It is the committee's usual
expectation that where a regulation relates to a bill with which the committee
has previously raised concerns, that the regulation is accompanied by a
statement of compatibility addressing the issues previously identified by the
committee.
2.334
The committee therefore sought the views of the Minister for Immigration
and Border Protection as to the compatibility
of the measure with the obligation to ensure that inter-country adoption is
performed in the child's best interests.
Minister's response
The Government has provided its response to the Committee
regarding the Australian Citizenship Amendment (lntercountry Adoption) Act
2015 and its compatibility with Article 21 of the Convention on the Rights
of the Child. This response was provided by former Minister the Hon Scott
Morrison MP on 5 August 2014. I note the contents of this response to the
Committee and the Committee's findings in the 10th Report. I note the following
excerpts from the response to the Committee by the former Minister:
'Given
that all of the country programmes which the Australian Government has
established must meet the standards of the Hague Convention, the government is
of the view that Australia's intercountry adoption programme as a whole is
consistent with Article 21 of the CRC.
The guiding principle of all
intercountry adoptions undertaken by Australia, including through the bilateral
arrangements with non-Hague countries, is that the best interests of the child
shall be the paramount consideration. An application for Australian citizenship
is simpler and quicker than an application for a subclass 102 Adoption visa and
is certainly less expensive. A more efficacious means of an adopted child's
entry into Australia where supported by a Hague Convention compliant programme
is in the child's best interests because it means the child can begin their
life with their adoptive family in Australia more quickly without compromise to
their safety and well-being.
Therefore, the bill is
consistent with Article 21 of the CRC.
The proposal is a/so in keeping
with Articles 9 and 18 of the Hague Convention, which respectively encourage
expediting adoption processes and taking the necessary steps to ensure an
adopted child can reside permanently in Australia.'
I concur with the former Minister's response and rely on its
contents in respect to Schedule 6 of the Migration Legislation Amendment (2014
Measures No. 2) Regulation 2014. As such, I have no further advice to the
Committee.[106]
Committee response
2.335 The committee thanks the minister for his response, which confirms
the advice provided by the previous minister.
2.336 Some committee members noted the minister's advice that all of the
country programs which the Australian government has established must meet the
standards of the Hague Convention, and consider the measure is justified.
2.337 Other committee members supported the committee's previous conclusion
that the Australian Citizenship Amendment (lntercountry Adoption) Act 2014
is likely to be incompatible with the Australia’s obligations under the
Convention on the Rights of the Child. Accordingly, as the instrument
implements aspects of that Act, those committee members consider that the
regulation is also likely to be incompatible with Australia’s obligations under
the Convention on the Rights of the Child.
Disclosure of information
2.338
Section 5.34F of the Migration Regulations permits the Department of
Immigration and Border Protection (the department) to disclose certain
information to the Australian Federal Police (AFP) and to state and territory
police for the purpose of supporting existing powers to cancel a Bridging Visa
E. This includes names, addresses, dates of birth, sex and immigration status
of Bridging E visa (Class WE) visa (BVE) holders and people subject to a
residence determination (community detainees).[107]
2.339
The committee initially examined the regulation implementing these
measures in its Second Report of the 44th Parliament and
requested the further advice of the Minister for Immigration and Border
Protection as to the compatibility of the measures with the right to privacy.[108]
The committee reported on the minister's response in the Fourth Report of
the 44th Parliament and sought further advice noting that many of the key
safeguards and procedures for implementing the new disclosure powers were to be
contained in a Memoranda of Understanding which was to be negotiated with the federal,
state and territory police.[109]
The committee reported on the minister's response in its Seventh Report of
the 44th Parliament and noted the minister's commitment to
provide the committee with a copy of the Memoranda of Understanding once
finalised.[110]
On this basis the committee noted it would conclude its examination of the
instruments once it had received and considered a copy of the final Memoranda
of Understanding.[111]
2.340
Schedule 3 to this current regulation further amends section 5.34F to
authorise the disclosure of personal information of BVE visa holders and
community detainees to the CrimTrac Agency.
2.341
This regulation also amends section 5.34F of the Migration Regulations
to allow the disclosure of a unique identifier to prevent misidentification
(the Central Names Index (CNI) Number, an identifier used by the National
Automated Fingerprint Identification System) and the disclosure of the
departmental Client ID reference number.
Right to privacy
2.342
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interferences with an individual's
privacy, family, correspondence or home. The right to privacy encompasses
respect for informational privacy, including:
-
the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and
-
the right to control the dissemination of information about one's
private life.
2.343
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measure with
the right to privacy
2.344
The committee previously considered that the further amendments to the
disclosure requirements in section 5.34F of the Migration Regulations engage
and may limit the right to privacy. The statement of compatibility relies on
the terms of a yet to be finalised memorandum of understanding to justify the
proportionality of this limitation.
2.345
In accordance with previous conclusions, the committee noted that as
many of the key safeguards and procedures for implementing the disclosure
powers are to be contained in the relevant memorandum of understanding being
negotiated with the federal, state and territory police and CrimTrac, the
committee was unable to complete its assessment of whether the amendments to
section 5.34F are compatible with human rights until it can consider the
specific content of the memorandum of understanding.
Minister's response
2.346
The minister's response did not address this issue.
Committee response
2.347 The committee reiterates its previous comments in relation to its
assessment of the regulation with the right to privacy. The committee
previously noted the minister's commitment to provide the committee with a copy
of the memorandum of understanding. The committee will conclude its examination
of the disclosure powers and the further amendments to those powers in section
5.34F once it has received and considered a copy of this memorandum of
understanding. The committee looks forward to receiving a copy of the
memorandum of understanding as soon as it is finalised.
The Hon Philip Ruddock MP
Chair
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