Chapter 1
New and continuing matters
1.1
This report provides the Parliamentary Joint Committee on Human Rights'
view on the compatibility with human rights of bills introduced into the
Parliament from 17 to 20 August 2015, legislative instruments received from 7
to 13 August 2015, and legislation previously deferred by the committee.
1.2
The report also includes the committee's consideration of responses
arising from previous reports.
1.3 The committee generally takes an exceptions based approach to its
examination of legislation. The committee therefore comments on legislation
where it considers the legislation raises human rights concerns, having regard
to the information provided by the legislation proponent in the explanatory
memorandum (EM) and statement of compatibility.
1.4
In such cases, the committee usually seeks further information from the
proponent of the legislation. In other cases, the committee may draw matters to
the attention of the relevant legislation proponent on an advice-only basis.
Such matters do not generally require a formal response from the legislation
proponent.
1.5
This chapter includes the committee's examination of new legislation,
and continuing matters in relation to which the committee has received a
response to matters raised in previous reports.
Bills not raising human rights concerns
1.6
The committee has examined the following bills and concluded that they
do not raise human rights concerns. The following categorisation is indicative
of the committee's consideration of these bills.
1.7
The committee considers that the following bills do not require
additional comment as they either do not engage human rights or engage rights
(but do not promote or limit rights):
-
Tax and Superannuation Laws Amendment (2015 Measures No.4) Bill
2015; and
-
Tax and Superannuation Laws Amendment (Better Targeting the
Income Tax Transparency Laws) Bill 2015.
1.8
The committee considers that the following bills do not require
additional comment as they promote human rights or contain justifiable
limitations on human rights (and may include bills that contain both
justifiable limitations on rights and promotion of human rights):
-
Broadcasting Legislation Amendment (Primary Television
Broadcasting Service) Bill 2015;
-
Foreign Acquisitions and Takeovers Fees Impositions Bill 2015;
-
Foreign Acquisitions and Takeovers Legislation Amendment Bill
2015;
-
Marriage Equality Plebiscite Bill 2015; and
-
Register of Foreign Ownership of Agricultural Land Bill 2015.
Instruments not raising human rights concerns
1.9
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[1]
Instruments raising human rights concerns are identified in this chapter.
1.10
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Deferred bills and instruments
1.11
The committee has deferred its consideration of the Marriage Legislation
Amendment Bill 2015.
1.12
The committee continues to defer its consideration of the following legislation:
-
Federal Financial Relations (National Specific Purpose Payments)
Determination 2013-14 No. 1 [F2015L00877] (deferred 18 August 2015);
-
Federal Financial Relations (National Specific Purpose Payments)
Determination 2013-14 No. 2 [F2015L00878] (deferred 18 August 2015);
-
Federal Financial Relations (National Partnership payments)
Determination No. 87 (December 2014) [F2015L01093] (deferred 18 August 2015);
-
Federal Financial Relations (National Partnership payments)
Determination No. 88 (January 2015) [F2015L01094] (deferred 18 August 2015);
-
Federal Financial Relations (National Partnership payments)
Determination No. 89 (February 2015) [F2015L01095] (deferred 18 August 2015);
-
Federal Financial Relations (National Partnership payments)
Determination No. 90 (March 2015) [F2015L01096] (deferred 18 August 2015);
-
Federal Financial Relations (National Partnership payments)
Determination No. 91 (April 2015) [F2015L01097] (deferred 18 August 2015);
-
Federal Financial Relations (National Partnership payments)
Determination No. 92 (May 2015) [F2015L01098] (deferred 18 August 2015);
-
Federal Financial Relations (National Partnership payments)
Determination No. 93 (June 2015) [F2015L01099] (deferred 18 August 2015); and
-
Migration Amendment (Protection and Other Measures) Regulation
2015 [F2015L00542] (deferred 23 June 2015).
1.13
As previously noted, the committee continues to defer one bill and a
number of instruments in connection with the committee's current review of the Stronger
Futures in the Northern Territory Act 2012 and related legislation.[2]
1.14
The committee also continues to defer a number of instruments in
connection with its ongoing examination of the autonomous sanctions regime and
the Charter of the United Nations sanctions regime.[3]
Environment Protection and Biodiversity Conservation Amendment (Standing)
Bill 2015
Portfolio: Environment
Introduced: House
of Representatives, 20 August 2015
Purpose
1.15
The Environment Protection and Biodiversity Conservation Amendment
(Standing) Bill 2015 (the bill) seeks to amend the Environment Protection
and Biodiversity Conservation Act 1999 (the Environment Act) to remove
section 487 of the Environment Act. Currently, section 487 expands the meaning
of 'person aggrieved' in the Administrative Decisions (Judicial Review) Act
1977.
1.16
Measures raising human rights concerns or issues are set out below.
Removal of extended standing to seek judicial review of decisions or conduct
under the Environment Act
1.17
Currently, section 487 of the Environment Act gives standing rights (the
right to bring an action before the courts) to individuals and organisations
who, at any time in the preceding two years, have engaged in a series of activities
for the protection or conservation of, or research into, the Australian
environment. This means that currently those individuals and organisations can
bring an action to seek judicial review of actions taken, or not taken, under
the Environment Act. The bill would remove the right of these individuals and
organisations to bring judicial review in relation to decisions made (or failed
to be made) under the Environment Act or conduct engaged under that Act (or
regulations).
1.18
The objectives of the Environment Act include protecting the environment
and ecosystems and promoting ecologically sustainable development, which
includes principles of inter-generational equity; that the present generation
should ensure the health, diversity and productivity of the environment for the
benefit of future generations.[4]
1.19
The removal of the existing right of a person who, or organisation
which, is dedicated to protecting the environment from applying for judicial
review of decisions taken (or not taken) or conduct engaged in under the
Environment Act, could result in a failure to properly enforce the protections
under the Environment Act, and as a result may engage and limit the right to health
and a healthy environment.
Right to health and a healthy
environment
1.20
The right to health is guaranteed by article 12(1) of the International
Covenant on Economic, Social and Cultural Rights (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).
1.21
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to health. 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.
1.22
Under article 4 of the ICESCR, economic, social and cultural rights may
be subject only to such limitations as are determined by law and compatible
with the nature of those rights, and solely for the purpose of promoting the
general welfare in a democratic society. Such limitations must be proportionate
to the achievement of a legitimate objective, and must be the least restrictive
alternative where several types of limitations are available.
Compatibility of the measure with
the right to health and a healthy environment
1.23
The statement of compatibility does not explore whether the right to
health and a healthy environment is engaged by this measure.
1.24
While the text of the ICESCR does not explicitly recognise a
human right to a healthy environment, the UN Committee on Economic, Social and
Cultural Rights has recognised that the enjoyment of a broad range of economic,
social and cultural rights depends on a healthy environment.[5]
As the UN Committee emphasized in its recent statement in the context of the
Rio+20 Conference, 'the Committee in its dialogue with States parties has
regularly stressed the inter-linkages of specific economic, social and cultural
rights, as well as the right to development, with the sustainability of
environmental protection and development efforts.'[6]
The UN Committee has recognised that environmental degradation and resource
depletion can impede the full enjoyment of the right to health.[7]
1.25
The UN Committee has also drawn a direct connection between the
pollution of the environment and the resulting negative effects on the right to
health, explaining that the right to health is violated by 'the failure to
enact or enforce laws to prevent the pollution of water, air and soil by
extractive and manufacturing industries.'[8]
1.26
As such, the removal of a right of a person or bodies who are committed
to environmental protection from seeking to enforce the protections in the
Environment Act, may engage and limit the right to a healthy environment. This
was not addressed in the statement of compatibility.
1.27
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1,[9]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the 'existence of a legitimate
objective must be identified clearly with supporting reasons and, generally,
empirical data to demonstrate that [it is] important'.[10] To be capable of
justifying a proposed limitation of human rights, a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient. Additionally, a limitation must be
rationally connected to, and a proportionate way to achieve, its legitimate
objective in order to be justifiable in international human rights law.
1.28
The committee's assessment of the removal of extended standing
for judicial review of decisions or conduct under the Environment Protection
and Biodiversity Conservation Act 1999 against article 12 of the
International Covenant on Economic, Social and Cultural Rights (right to health
and a healthy environment) raises questions as to whether the measure limits
the right, and if so, whether that limitation is justifiable.
1.29
As set out above, the measure may engage and limit the right to health
and a healthy environment as the bill removes extended standing for judicial
review of decisions or conduct under the Environment Act. The statement of
compatibility does not justify that possible limitation for the purposes of
international human rights law. The committee therefore seeks the advice of the
Minister for the Environment as to whether the bill limits the right to a
healthy environment and, if so:
-
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.
Fair Work Amendment (Penalty Rates Exemption for Small Businesses) Bill
2015
Sponsors:
Senators Leyonhjelm and Day
Introduced:
Senate, 13 August 2015
Purpose
1.30
The Fair Work Amendment (Penalty Rates Exemption for Small Businesses)
Bill 2015 (the bill) seeks to amend the Fair Work Act 2009 to exclude
employers in the restaurant and catering, hotel, and retail industries which
employ fewer than 20 employees from being required to pay penalty rates under
an existing or future modern award unless:
-
the work is in addition to ten hours of work in a 24 hour period;
or
-
the work is on a public holiday; or
-
the work is on a weekend and in addition to 38 hours of work over
the relevant week.
1.31
Measures raising human rights concerns or issues are set out below.
Removal of penalty rates in certain circumstances
1.32
Most employees in Australia have their minimum wages and conditions set
by awards, though other instruments such as individual contracts or enterprise
agreements often provide additional wages and conditions above the minimum
conditions established in awards. Penalty rates generally apply to non-standard
hours of work (such as weekend and night work), overtime and work on public
holidays.
1.33
As set out above, this bill would exempt small business employers (with
fewer than 20 employees) in the restaurant and catering, hotel, and retail
industries from being required to pay penalty rates under an existing or future
modern award unless certain conditions are met. Awards will be allowed to
include penalty rates provisions for work: in addition to ten hours of work (in
a 24 hour period); on a weekend but only if the work is in addition to 38 hours
in the week; and on a public holiday.
1.34
The bill engages and may limit the right to just and favourable
conditions of work, as the changes to penalty rates for non-standard work hours
(such as weekend and night work) may reduce the take home pay of individuals in
those industries.
1.35
In reducing the income of some of the lowest paid employees in
Australia, the measure also engages and may limit the right to an adequate
standard of living.
1.36
In addition, the measure engages and may limit the right to equality and
non‑discrimination. In particular, the measure may constitute indirect
discrimination on the basis of gender and age, as women and young people are
disproportionately represented in the affected industries.
Right to just and favourable
conditions of work
1.37
The right to work and rights in work are protected by articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).[11]
1.38
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of state parties to the ICESCR in relation to the right to work
include the obligation to ensure individuals their right to freely chosen or
accepted work, including the right not to be deprived of work unfairly, allowing
them to live in dignity. The right to work is understood as the right to decent
work providing an income that allows the worker to support themselves and their
family, and which provides safe and healthy conditions of work.
1.39
Under article 2(1) of ICESCR, Australia has certain obligations in
relation to the right to work. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps
(retrogressive measures) 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.
1.40
The right to work may be subject only to such limitations as are
determined by law and compatible with the nature of the right, and solely for
the purpose of promoting the general welfare in a democratic society.
Compatibility of the measure with
the right to just and favourable conditions of work
1.41
The statement of compatibility for the bill acknowledges that the
measure engages the right to work and rights in work but states that the bill
does not limit the right of employees to earn either fair wages or equal
remuneration as the bill 'only affects the circumstances in which certain
employers will be required to pay penalties above the base wage'.[12]
The statement of compatibility further states that the bill does not affect
remuneration for public holidays and 'maintains the payment of penalty rates to
financially recognise work performed above and beyond the usual hours of
employment'.[13]
However, the statement of compatibility does not directly address the limitation
on the right to just and favourable conditions of work.
1.42
First, the statement of compatibility states that the bill is 'intended
to support and encourage greater employment within small businesses'. The
statement of compatibility does not outline how this measure pursues a
legitimate objective for the purposes of international human rights law. In
particular, the statement of compatibility does not provide evidence as to why
the employment outcomes of small businesses (with fewer than 20 employees) in
the restaurant and catering, hotel and retail industries are at particular risk
such that the stated objective addresses a pressing or substantial concern.
1.43
Second, the statement of compatibility has not demonstrated that the
measure is rationally connected to that objective. In particular, the statement
of compatibility has not addressed the likelihood of small businesses using the
savings made from not having to pay penalty rates in certain circumstances to
hire new employees, rather than for other purposes. Evidence of the impact of
changing penalty rates on employment outcomes is not discussed in the statement
of compatibility.
1.44
Third, the statement of compatibility has not demonstrated that the
measure is proportionate to its stated objective (that is, that it is the least
rights restrictive means of achieving that objective). In particular, the
statement of compatibility has not provided a reasoned and evidence-based
explanation of why the measure is necessary for the attainment of a legitimate
objective. The committee considers that there is likely to be a less rights
restrictive alternative to achieving the stated objective of the bill, such as
wage subsidies or incentive payments for hiring eligible job seekers. The statement
of compatibility does not assess the likely effect of the proposed measures on
workers and what effect this may have to the rates of pay of affected workers,
and how this is proportionate to the stated objective.
1.45
The committee's assessment of the changes to penalty rate
provisions for certain restaurant and catering, hotel and retail employees
against article 7 of the International Covenant on Economic, Social and
Cultural Rights (right to just and favourable conditions of work) raises
questions as to whether the changes to penalty rates for the affected employees
is justifiable.
1.46
As set out above, the bill engages and limits the right to just
and favourable conditions of work. The statement of compatibility does not
sufficiently justify that limitation for the purposes of international human
rights law. The committee therefore seeks the advice of the legislation
proponents as to whether:
-
there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
there is a rational connection between the limitation and that
objective; and
-
the limitation is a reasonable and proportionate measure for
the achievement of that objective.
Right to an adequate standard of
living
1.47
The right to an adequate standard of living requires that the state take
steps to ensure the availability, adequacy and accessibility of food, clothing,
water and housing for all people in Australia.
1.48
Australia has two types of obligations in relation to this right. It has
immediate obligations to satisfy certain minimum aspects of the right; not to
unjustifiably take any backwards steps that might affect living standards; and
to ensure the right is made available in a non-discriminatory way. It also has
an obligation to take reasonable measures within its available resources to
progressively secure broader enjoyment of the right to an adequate standard of
living.
Compatibility of the measure with
the right to an adequate standard of living
1.49
Employees in the restaurant and catering, hotel and retail industries
have the lowest average full time weekly earnings in Australia, and employees
in these industries are likely to be reliant on the conditions in awards.[14]
In addition, most employees in these industries are part time or casual
employees.[15]
Employees in these industries often have little bargaining power over the
conditions of their employment.
1.50
The changes in the payment of penalty rates proposed by the bill has the
potential to have a sizeable impact on the wages earnt by the affected low paid
employees, particularly existing employees who may have structured their work
patterns according to the available wages and penalty rates. It is also
possible that penalty rates have been part of the overall wage packages in such
industries, and average wage rates would have been higher if penalty rates were
lower (or zero).
1.51
As the statement of compatibility does not identify the measure as
limiting the right to an adequate standard of living in this way, no
justification for the limitation is provided.
1.52
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1,[16]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the 'existence of a legitimate
objective must be identified clearly with supporting reasons and, generally,
empirical data to demonstrate that [it is] important'.[17]
To be capable of justifying a proposed limitation of human rights, a legitimate
objective must address a pressing or substantial concern and not simply seek an
outcome regarded as desirable or convenient. Additionally, a limitation must be
rationally connected to, and a proportionate way to achieve, its legitimate objective
in order to be justifiable in international human rights law.
1.53
The committee's assessment of the changes to penalty rate
provisions in existing and future modern awards against article 11 of the
International Covenant on Economic, Social and Cultural Rights (right to an
adequate standard of living) raises questions as to whether the changes to
penalty rates for the low paid affected employees is justifiable.
1.54
As set out above, the changes to penalty rates engages and limits
the right to an adequate standard of living. The statement of compatibility
does not provide an assessment as to the compatibility of the measure with this
right. The committee therefore seeks the advice of the legislation proponent as
to whether:
-
there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
there is a rational connection between the limitation and that
objective; and
-
the limitation is a reasonable and proportionate measure for
the achievement of that objective.
Right to equality and
non-discrimination
1.55
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the International Covenant on Civil and Political Rights (ICCPR).
1.56
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides 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.
1.57
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[18]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[19]
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.[20]
1.58
In addition to the articles on non-discrimination in the ICCPR and
CEDAW, article 2(2) of the ICESCR guarantees the right to equality and non‑discrimination
in the exercise of economic, social and cultural rights, including the right to
earn fair wages or equal remuneration sufficient to earn a decent living in
article 7 of the ICESCR.
1.59
Articles 2, 3, 4 and 15 of the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) further describes the content of
these rights, describing the specific elements that state parties are required
to take into account to ensure the rights to equality for women.
Compatibility of the measure with
the right to equality and non‑discrimination
1.60
The measure engages and may limit the right to equality and non‑discrimination
because of the possibility of indirect discrimination on the basis of gender or
age.
1.61
International human rights law recognises that a measure may be neutral
on its face but in practice have a disproportionate impact on groups of people
with a particular attribute such as race, colour, sex, language, religion,
political or other status. Where this occurs without justification it is called
indirect discrimination.[21]
Indirect discrimination does not necessarily import any intention to
discriminate and can be an unintended consequence of a measure implemented for
a legitimate purpose. The concept of indirect discrimination in international
human rights law therefore looks beyond the form of a measure and focuses
instead on whether the measure could have a disproportionately negative effect
on particular groups in practice.
1.62
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. However,
under international human rights law such a disproportionate effect may be
justifiable.
1.63
The majority of employees in the restaurant and catering, hotel and
retail industries are female, and more women in these industries work part-time
than full‑time.[22]
Given the low base wage for these industries, women who work part-time are
possibly more reliant on penalty rates to supplement their base wage. Some
women may organise their work schedule around family responsibilities, and work
non‑standard hours where childcare can be supplied by their partner
or family. The changes to penalty rates may possibly have a disproportionate
impact on women.
1.64
Employees in the restaurant and catering, hotel and retail industries
are also likely to be younger on average and award reliant.[23]
Minimum wage jobs are often entry level, with a much higher reliance on minimum
wage jobs observed among employees aged less than 20 years (25 per cent of
employees) and between 21 to 24 years (14 per cent of employees) compared with
those aged 25 to 54 (roughly 5 per cent).[24]
Therefore the changes to penalty rates may possibly have a disproportionate impact
on young people.
1.65
As the statement of compatibility does not identify the measure as
limiting the right to equality and non-discrimination in this way, no
justification for the limitation is provided.
1.66
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law, as outlined at paragraph
[1.52] above.
1.67
The committee's assessment of the changes to penalty rate
provisions in existing and future modern awards against article 2(2) of the
International Covenant on Economic, Social and Cultural Rights, articles 2, 16
and 26 of the International Covenant on Civil and Political Rights and articles
2, 3, 4 and 15 of the Convention on the Elimination of All Forms of
Discrimination against Women (right to equality and non‑discrimination)
raises questions as to whether the indirect discrimination against women and
young people is justifiable.
1.68
As set out above, the changes to penalty rates engages and limits
the right to equality and non‑discrimination. The statement of
compatibility does not provide an assessment as to the compatibility of the
measure with this right. The committee therefore seeks the advice of the
legislation proponent as to whether:
-
there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
there is a rational connection between the limitation and that
objective; and
-
the limitation is a reasonable and proportionate measure for
the achievement of that objective.
Shipping Legislation Amendment Bill 2015
Portfolio: Infrastructure and
Regional Development
Introduced: House of Representatives, 25 June 2015
Purpose
1.69
The Shipping Legislation Amendment Bill 2015 (the bill) provides a new
framework for the regulation of coastal shipping in Australia, including:
-
replacing the existing three tiered licensing system with a
single permit system available to Australian and foreign vessels, which will
provide access to the Australian coast for a period of 12 months;
-
establishing a framework of entitlements
for seafarers on foreign vessels engaging or intending to engage in coastal
shipping for more than 183 days;
-
allowing for vessels to be registered on the Australian
International Register if they engage in international shipping for a period of
90 days or more; and
-
making consequential amendments and repealing the Coastal
Trading (Revitalising Australian Shipping) (Consequential Amendments and
Transitional Provisions) Act 2012.
1.70
Measures raising human rights concerns or issues are set out below.
12 month permit system for access to Australian coastal shipping
1.71
As set out above, the bill would replace the current three tiered
licensing system with a single permit system which will provide access to
Australian coastal shipping for 12 months. The permit system will be open to
applications from both Australian and foreign registered vessels.
1.72
Under the bill, vessels registered under the laws of a foreign country
will not be subject to Australian crew requirements unless they declare on
their permit that they intend to engage in coastal shipping for more than 183
days during the permit period, or if the vessel actually engages in coastal
shipping for more than 183 days during the permit period. Accordingly, under
the proposed permit system, foreign vessels will be able to operate in
Australian coastal waters and not pay their workers in accordance with
Australian laws provided that the vessel spends less than six months in
Australian waters in any given 12 month period.
1.73
Accordingly, the measure engages and may limit the right to just and
favourable conditions at work as the bill may permit individuals to be paid
less than Australian award wages whilst working in Australian coastal waters.
Right to just and favourable
conditions of work
1.74
The right to work and rights in work are protected by articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).[25]
1.75
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of state parties to the ICESCR in relation to the right to work
include the obligation to ensure individuals their right to freely chosen or
accepted work, including the right not to be deprived of work unfairly,
allowing them to live in dignity. The right to work is understood as the right
to decent work providing an income that allows the worker to support themselves
and their family, and which provides safe and healthy conditions of work.
1.76
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to work. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps
(retrogressive measures) 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.
1.77
The right to work may be subject only to such limitations as are
determined by law and are compatible with the nature of the right, and solely
for the purpose of promoting the general welfare in a democratic society.
Compatibility of the measure with
the right to just and favourable conditions of work
1.78
The statement of compatibility suggests that the measure engages the
right to just and favourable conditions of work but does not explicitly
consider whether the measure limits the right. The statement of compatibility discusses
the parts of the relevant award that apply to foreign vessels which currently
operate in Australia under the existing licencing system. However, no
information is provided as to whether the bill would expand the number of
individuals who work in Australian coastal waters on below award wages or the
proportion of individuals who are paid below award wages.
1.79
The statement of compatibility states that Australia is not required to
set wages and conditions for seafarers on foreign vessels under the ICESCR.
This appears to misunderstand the nature of Australia's obligations under
international law. Australia is obligated to apply international human rights
law to everyone subject to its jurisdiction. This includes people in Australian
coastal waters that form part of Australia's territory. As part of Australia's
sovereignty, Australia applies a number of domestic laws to foreign flagged vessels
in its coastal waters including the Navigation Act 2012.
1.80
Accordingly, to the extent that the bill may expand the number of
individuals working in Australian coastal waters on below Australian award
wages, the bill may limit the right to just and favourable conditions of work.
1.81
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1,[26]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the 'existence of a legitimate
objective must be identified clearly with supporting reasons and, generally,
empirical data to demonstrate that [it is] important'.[27] To be capable of
justifying a proposed limitation of human rights, a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient. Additionally, a limitation must be
rationally connected to, and a proportionate way to achieve, its legitimate
objective in order to be justifiable in international human rights law.
1.82
The committee's assessment of the 12 month permit system for
access to Australian coastal shipping by foreign flagged vessels against
articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social
and Cultural Rights (right to just and favourable conditions of work) raises
questions as to whether the measure limits the right, and if so, whether that
limitation is justifiable.
1.83
As set out above, the measure engages and may limit the right to
just and favourable conditions at work as the bill may permit individuals to be
paid less than Australian award wages whilst working in Australian coastal
waters. The statement of compatibility does not sufficiently justify that
limitation for the purposes of international human rights law. The committee
therefore seeks the advice of the Minister for Infrastructure and Regional
Development as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise 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.
Social Security Legislation Amendment (Debit Card Trial) Bill 2015
Portfolio:
Social Services
Introduced: House
of Representatives, 19 August 2015
Purpose
1.84
The Social Security Legislation Amendment (Debit Card Trial) Bill 2015
(the bill) seeks to amend the Social Security (Administration) Act 1999,
and make consequential amendments to a number of other Acts, to provide for the
trial of cashless welfare arrangements.
1.85
The bill would enable a legislative instrument to be made which would
prescribe locations, or locations and classes of persons, in three discrete
trial areas which would trial 'cashless welfare arrangements'. This would mean
that persons on working age welfare payments in the specified locations would
have 80 per cent of their income support restricted, so that the restricted
portion could not be used to purchase alcoholic beverages or to conduct
gambling.
1.86
Measures raising human rights concerns or issues are set out below.
Restrictions on how social security payments are spent
1.87
As set out above, the bill provides the legislative basis on which a
trial could be conducted whereby 80 per cent of a person's social security
would be placed in a restricted bank account. The trial would take place
between February 2016 and June 2018. A person subject to the trial would
not be able to access their social security payments in cash; rather their
social security payments would be provided on a debit card that could not be
used to purchase alcoholic beverages or gambling. This would be achieved by
ensuring the debit card could not be used at excluded businesses.
1.88
It is not clear what businesses will be excluded businesses, for which
any money linked to a welfare restricted bank account will not be able to be
spent. This is because the bill leaves much of the detail as to how the trial
will work to be dealt with in a future legislative instrument.[28]
Little detail is provided in the explanatory memorandum or the statement of
compatibility.
1.89
The statement of compatibility does explain that the trial is in
response to a recommendation from Mr Andrew Forrest's Review of Indigenous Jobs
and Training.[29]
In this review, Mr Forrest recommended that specific retailers would be
excluded, such as bottle shops. As for retailers that sell both alcohol and
other goods (such as Woolworths or Coles) the review states:
We will need to explore if the retailers who sell a mixed
range of goods (like vegetables and alcohol) can also classify and prohibit
certain purchases at point of sale.[30]
1.90
The bill also leaves to a legislative instrument the locations that will
be the subject of the trial and the class of person who would be subject to the
trial. For example, proposed section 124PG states that the trial could apply to
all persons who receive a trigger payment whose usual place of residence is in
a trial location; or it could apply in respect of a particular class of persons
whose usual place of residence is in a trial location. Neither the explanatory
memorandum nor the statement of compatibility explain the likely approach that
will be taken. A 'trigger payment' is defined as including all social security
benefits and most social security pensions (including Newstart Allowance, Youth
Allowance, disability pensions and carers' payments).
1.91
The restriction on how a person can spend their social security payments
engages and limits the right to a private life. It may also engage and limit
the right to equality and non-discrimination, as the measures may impact
disproportionately on particular persons. In relation to these two rights, it
also engages and may limit the right to social security.
Right to a private life
1.92
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.
1.93
Privacy is linked to notions of personal autonomy and human dignity: it
includes the idea that individuals should have an area of autonomous
development; a 'private sphere' free from government intervention and excessive
unsolicited intervention by others. The right to privacy requires that the
state does not arbitrarily interfere with a person's private and home life.
1.94
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 a private life
1.95
The statement of compatibility does not acknowledge that the bill
engages the right to a private life and therefore provides no justification as
to any limit on this right.
1.96
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1,[31]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the 'existence of a legitimate
objective must be identified clearly with supporting reasons and, generally,
empirical data to demonstrate that [it is] important'.[32] To be capable of
justifying a proposed limitation of human rights, a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient. Additionally, a limitation must be
rationally connected to, and a proportionate way to achieve, its legitimate
objective in order to be justifiable in international human rights law.
1.97
Restricting how a person can access, and where they can spend, their
social security benefits, interferes with the person's right to personal
autonomy and therefore their right to a private life. In addition, being able
to only access 20 per cent of welfare payments in cash could have serious
restrictions on what a person is able to do in their private life. There are
many instances where a person would only be able to use cash to purchase goods
or services, such as at markets, for public transport, to give to family
members, services which require cash payments, buying second-hand goods and at
stores that have minimum purchase requirements. For those on the single rate of
Newstart, restricting the cash availability of the allowance to 20 per cent
would mean that just over $50 is available per week to be spent in cash.[33]
This restriction undoubtedly impacts on how a person is able to conduct their
private life and represents the extension of government regulation into the
private and family lives of the persons affected by these trials.
1.98
As the UN Special Rapporteurs on Extreme Poverty and Human Rights and
Rights of Indigenous Peoples have said in relation to the provision of social
security benefits:
When States impose excessive requirements and conditions on
access to public services and social benefits, and severe sanctions for
non-compliance, such measures threaten welfare beneficiaries' enjoyment of a
number of human rights, including the right to...be free from arbitrary or
unlawful State interference in their privacy, family, home or correspondence.[34]
1.99
In this case, while not acknowledging that the right to a private life
is engaged, the statement of compatibility states that the objective of the
bill is to:
[achieve] the legitimate objective of reducing immediate
hardship and deprivation, reducing violence and harm, encouraging socially
responsible behaviour, and reducing the likelihood that welfare recipients will
be subject to harassment and abuse in relation to their welfare payments.[35]
1.100
The committee considers that this is likely to be a legitimate objective
for the purposes of human rights law. However, in addition to a measure having
a legitimate objective, it is necessary to demonstrate that the measure is
rationally connected to that objective. That is, that the measure is likely to
be effective in achieving the objective being sought. It is noted that the
measure, in quarantining a person's welfare payments and restricting where that
quarantined payment can be spent, is very similar to the existing program of
income management.
1.101
As the committee has previously noted in relation to income management, the
government has not clearly demonstrated that the measure has had the beneficial
effects that were hoped for.[36]
Indeed, the most recent government‑commissioned evaluation of income
management in the Northern Territory has concluded that income management has
been of mixed success. In particular, it found no evidence income management
has achieved its intended outcomes. Rather than promoting independence and
building skills and capabilities, it appears to have 'encouraged increasing
dependence upon the welfare system', and there is no evidence to indicate its
effectiveness at the community level or that it facilitates long-term behaviour
change.[37]
1.102
Given the similarities between income management and this proposed trial
of cashless welfare arrangements, it is incumbent on the legislation proponent
to explain how the measures are likely to be effective (that is, rationally
connected) to the stated objective.
1.103
In addition, it is necessary for the legislation proponent to explain
how the measure is proportionate to its stated objective. This includes
explaining whether there are effective safeguards or controls over the measure,
including the possibility of monitoring and access to review. There is nothing
in the statement of compatibility that explores whether there are any such
safeguards in place and whether the measures are proportionate to the stated
objective.
1.104
The committee's assessment of the restrictions on welfare
payments against article 17 of the International Covenant on Civil and
Political Rights (right to a private life) raises questions as to whether this
measure is justifiable.
1.105
As set out above, the restrictions on welfare payments engage and
limit the right to a private life. The statement of compatibility does not
sufficiently justify that limitation for the purposes of international human
rights law. The committee therefore seeks the advice of the Minister for Social
Services as to:
-
whether there is a rational connection between the limitation
and that objective, in particular, whether there is evidence to indicate that
restricting welfare payments in this way is likely to be effective in achieving
the stated aims of reducing hardship, deprivation, violence and harm,
encouraging socially responsible behaviour and reducing the likelihood of
harassment and abuse; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, including that there are
appropriate safeguards in place, including monitoring and access to review.
1.106
The committee also seeks the minister's advice on these questions
regarding the right to social security and the right to equality and
non-discrimination set out below (articles 2 and 9 of the International
Covenant on Economic, Social and Cultural Rights and articles 2 and 26 of the
International Covenant on Civil and Political Rights, the Convention on the
Elimination of All Forms of Racial Discrimination, the Convention on the
Elimination of All Forms of Discrimination against Women and the Convention on
the Rights of Persons with Disabilities).
Right to equality and
non-discrimination
1.107
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the ICCPR and article 2 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR).
1.108
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides 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.
1.109
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion), which has either the purpose
(called 'direct' discrimination), or the effect (called 'indirect'
discrimination), of adversely affecting human rights. 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.
1.110
Articles 1, 2, 4 and 5 of the Convention on the Elimination of All Forms
of Racial Discrimination (CERD) further describes the content of these rights
and the specific elements that state parties are required to take into account
to ensure the elimination of discrimination on the basis of race, colour,
descent, national or ethnic origin.
1.111
Articles 2, 3, 4 and 15 of the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) further describes the content of
these rights, describing the specific elements that state parties are required
to take into account to ensure the rights to equality for women.
1.112
The Convention on the Rights of Persons with Disabilities (CRPD) further
describes the content of these rights, describing the specific elements that state
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.
Right to social security
1.113
The right to social security is protected by article 9 of the 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.
1.114
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;
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent; and
-
affordable (where contributions are required).
1.115
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.
1.116
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 measure with
the right to equality and non-discrimination and the right to social security
1.117
The statement of compatibility states that the cashless welfare
arrangements trial will not be applied on the basis of race or cultural
factors. Rather, trial locations 'will be chosen based on objective criteria,
such as high levels of welfare dependence and community harm, as well as the outcomes
of comprehensive consultation with prospective communities.'[38]
As such, the statement of compatibility says that the trial is not targeted at
people of a particular race. It also states that the trial will not detract
from the eligibility of a person to receive welfare, nor will it reduce the
amount of a person's social security entitlement.[39]
The statement of compatibility makes no reference to whether the measure may
impact disproportionately on women or people with a disability.
1.118
However, international human rights law recognises that a measure may be
neutral on its face but in practice have a disproportionate impact on groups of
people with a particular attribute such as race, colour, sex, language,
religion, political or other status. Where this occurs without justification it
is called indirect discrimination. Indirect discrimination does not
necessarily import any intention to discriminate and can be an unintended
consequence of a measure implemented for a legitimate purpose. The concept of
indirect discrimination in international human rights law therefore looks
beyond the form of a measure and focuses instead on whether the measure could
have a disproportionately negative effect on particular groups in practice.
1.119
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. However,
under international human rights law such a disproportionate effect may be
justifiable.
1.120
It is difficult to say whether this measure will have a disproportionate
impact on people of a particular race as the locations for the trial are not
set out in the bill but are to be established by a legislative instrument.
However, as the statement of compatibility acknowledges, these amendments are
in response to a key recommendation made by Mr Andrew Forrest's Review of
Indigenous Jobs and Training. This review examined options to help 'end the
disparity between Indigenous Australians and other Australians'.[40]
1.121
In addition, the Parliamentary Secretary to the Prime Minister's Second
Reading speech stated that Ceduna in South Australia will be the first site
under the trial to commence, and that advanced discussions were under way with
leaders in the East Kimberly region to trial the arrangement.[41]
A high proportion of the population of Ceduna and the East Kimberley region are
Indigenous, many of whom are receiving social security benefits. It therefore
appears likely that the measures may disproportionately impact on Indigenous
persons, and as such may be indirectly discriminatory unless this
disproportionate effect is demonstrated to be justifiable. This has not been
explored in the statement of compatibility.
1.122
It is also difficult to know whether the measure will disproportionately
impact on women and people with a disability, though statistically overall,
women and persons with a disability are more likely to be receiving social
security payments.
1.123
In addition, the right to social security must be able to be enjoyed
without discrimination.[42]
The UN Committee on Economic, Social and Cultural Rights has stated that states
should take particular care that Indigenous peoples are not excluded from
social security systems through direct or indirect discrimination.[43]
1.124
Accordingly, the restrictions on welfare payments engage and may limit
the right to social security and the right to equality and non-discrimination,
and as such this limitation needs to be justified. The analysis at [1.100] to [1.103]
in relation to the rational connection and proportionality of the measures
applies equally in relation to the limitations on the right to social security
and the right to equality and non‑discrimination.
Disclosure of information
1.125
The bill also seeks to introduce two new provisions which would allow
the disclosure of information about a person involved in the trial if the
information is relevant to the operation of the trial.
1.126
Proposed new sections 124PN and 124PO would allow an officer or employee
of a financial institution, and a member, officer or employee of a community
body (as specified in a legislative instrument), to disclose such information
about a person to the Secretary of the relevant Commonwealth department. This
is stated to operate despite any law in force in a State or Territory.
1.127
In addition, if such information is disclosed, the bill would also
enable the Secretary to disclose any information about the person to a member,
officer or employee of a financial institution or community body for the
purposes of the performance of their functions or duties or the exercise of
their powers.
1.128
Disclosing personal information engages and limits the right to privacy.
Right to privacy
1.129
As noted above at paragraph [1.92] to [1.94], article 17 of the ICCPR
prohibits arbitrary or unlawful interferences with an individual's privacy,
family, correspondence or home. This includes 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.
Compatibility of the measure with
the right to privacy
1.130
The statement of compatibility does not acknowledge that the bill
engages the right to privacy and therefore provides no justification as to any
limit on this right. However, disclosing personal information clearly engages
and limits the right to privacy. Any such limitation must be justified in order
to be compatible with human rights.
1.131
Of particular concern is that these disclosure powers apply despite any
law in force in a State or Territory, which would include laws regulating
privacy. There is also no limit on the type of personal information that may be
disclosed, other than that the information 'is relevant to the operation of
this Part'.
1.132
As noted above at paragraph [1.95], the committee's usual expectation
where a measure may limit a human right is that the accompanying statement of
compatibility explain how the measure supports a legitimate objective and how
it is rationally connected to, and a proportionate way to achieve, its
legitimate objective.
1.133
The committee's assessment of the disclosure of information
provisions against article 17 of the International Covenant on Civil and
Political Rights (right to privacy) raises questions as to whether this measure
is justifiable.
1.134
As set out above, the disclosure of information engages and
limits the right to privacy. The statement of compatibility does not
sufficiently justify that limitation for the purposes of international human
rights law. The committee therefore seeks 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.
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