New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
Instruments not raising human rights concerns
1.2
The committee has examined the legislative instruments registered in the
period identified above, as listed on the Federal Register of Legislation. Instruments
raising human rights concerns are identified in this chapter.
1.3
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.
Response required
1.4
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Australian Federal Police Regulations 2018 [F2018L01121]
Purpose |
Prescribes a number of
matters relating to the operation of the Australian Federal Police (AFP),
including relating to disposal of property |
Portfolio |
Home Affairs |
Authorising legislation |
Australian Federal
Police Act 1979 |
Last day to disallow |
15 sitting days after
tabling (tabled House of Representatives and Senate 20 August 2018) |
Rights |
Freedom of expression (see Appendix
2) |
Status |
Seeking additional
information |
Immediate disposal of 'offensive' property
1.5
Section 76(1)(b) of the regulations provides that the AFP Commissioner
(commissioner) may direct immediate disposal (except by sale or gift) of
property that the commissioner is reasonably satisfied is property that is
offensive in nature.
Compatibility of the measure with
the right to freedom of expression
1.6
Article 19(2) of the International Covenant on Civil and Political
Rights (ICCPR) requires the state not to arbitrarily interfere with freedom of
expression, including restrictions on political debate.[3] The right protects all forms of expression and the means of their
dissemination, including spoken, written and sign language and non-verbal
expression, such as images and
objects of art.[4] This right embraces expression that may be regarded as deeply offensive,
subject to the provisions of article 19(3) and article 20 of the ICCPR.[5]
1.7
The explanatory memorandum explains that property that is 'offensive' in
nature is not defined in the regulations but may include, for example, 'racist
materials, pornography in various formats, or material that depicts violent or
sexual activity'.[6] By allowing the commissioner to direct the immediate disposal of property that
the commissioner is satisfied is 'offensive' in nature, the measure may engage
and limit this right.
1.8
The statement of compatibility does not acknowledge that the right to
freedom of expression may be engaged and limited by the regulations and so does
not provide an assessment as to whether any limitation is justifiable under
international human rights law.
1.9
The right to freedom of expression may be subject to limitations that
are necessary to protect the rights or reputations of others, national
security, public order, or public health or morals. In order for a limitation
to be permissible under international human rights law, limitations must be
prescribed by law, pursue a legitimate objective, be rationally connected to
the achievement of that objective and be a proportionate means of achieving
that objective.
1.10
Based on the information provided in the explanatory memorandum as to
the type of information that may be considered 'offensive', the measure would
appear to pursue the objective of protecting public morals which is likely to
be legitimate for the purposes of international human rights law. To that extent
the measure also appears to be rationally connected to that objective.
1.11
However, the statement of compatibility has not provided sufficient
information to determine whether the measure is a proportionate limitation on
the right to freedom of expression. For example, it is not clear the basis on
which the commissioner may be 'reasonably satisfied' that property is offensive
(for example, whether this is subject to guidelines or other, legislative,
safeguards), and the safeguards in place to protect a person's freedom of
expression. Further information from the minister would assist in determining
whether any limitation on the right to freedom of expression is proportionate.
Committee comment
1.12
The preceding analysis indicates that the commissioner's power to
direct immediate disposal of property that is 'offensive' may engage and limit
the right to freedom of expression.
1.13
The committee therefore seeks the advice of the minister on the
compatibility of the measure with this right. In particular, the committee seeks
the advice of the minister as to whether the measure is a proportionate
limitation (including information as to relevant safeguards to protect freedom
of expression).
Social Security Legislation Amendment (Community Development Program) Bill
2018
Purpose |
Seeks to extend the
targeted compliance framework in the Social Security Administration Act to Community Development Programme regions |
Portfolio |
Indigenous Affairs |
Introduced |
Senate, 23 August 2018 |
Rights |
Social security and an
adequate standard of living; work; equality and non-discrimination (see Appendix
2) |
Status |
Seeking additional
information |
Background
1.14
The Social Security Legislation Amendment (Welfare Reform) Act 2018 (Welfare Reform Act) amended the Social Security (Administration) Act 1999 (Social
Security Administration Act) to create a new compliance framework, the targeted
compliance framework (TCF). The TCF applies to income support recipients
subject to participation requirements,[7] except for declared program participants.[8] Participants in the Community Development Programme (CDP) are not currently
subject to the TCF,[9] as the CDP is a declared program.[10] CDP participants are currently subject to compliance arrangements under
Division 3A of Part 3 of the Social Security Administration Act.[11]
1.15
The CDP is the Australian Government's employment and community
development service for remote Australia. The CDP seeks to support job seekers
in remote Australia to build skills, address barriers and contribute to their
communities through a range of activities. It is 'designed around the unique
social and labour market conditions in remote Australia' with the objective of
'increasing employment and breaking the cycle of welfare dependency'.[12] Under the current CDP, job seekers with activity requirements are expected to
complete up to 25 hours per week of work-like activities that benefit their
community.
1.16
The committee previously considered the TCF in its human rights
assessment of the bill that became the Welfare Reform Act.[13] Under the TCF, a job seeker can have their payments suspended for
non-compliance with a mutual obligation, such as failing to attend a job
interview or appointment (mutual obligation failure),[14] or for refusing suitable employment (work refusal failure).[15] Payments may be cancelled if a job seeker commits persistent mutual obligation
failures without reasonable excuse, or commits a work refusal failure without a
reasonable excuse, or voluntarily leaves a job or is terminated for misconduct
(unemployment failure).[16]
Payment cancellation for work refusal failure without a reasonable excuse,
and unemployment failure
1.17
The bill seeks to extend the TCF to CDP participants. Currently, a CDP
participant is subject to a non-payment period of eight weeks for refusing or
failing to accept suitable work without a reasonable excuse,[17] or for an unemployment failure resulting from a voluntary act or misconduct.[18]
The secretary has discretion to waive this non-payment period if it would cause
'severe financial hardship'.[19]
As a result of the TCF applying to CDP participants, the non-payment period is
reduced to four weeks (six weeks if the person has received a relocation
assistance to take up a job).[20] However, the measure would also remove the discretion for the secretary to
waive the non-payment penalty on the basis of severe financial hardship.[21]
1.18
The bill also provides that a designated program participant (being a
CDP participant) does not commit a work refusal failure if the person refuses
or fails to accept an offer of subsidised employment,[22] nor does a person commit an unemployment failure for voluntarily leaving or
being dismissed for misconduct from subsidised employment.[23]
As these exceptions only apply in relation to subsidised jobs, these safeguards
do not apply to persons who refuse or fail to accept an offer for unsubsidised
employment or who voluntarily leave or are dismissed from unsubsidised jobs.
Compatibility of the measure with
the right to social security and an adequate standard of living
1.19
Article 9 of the International Covenant on Economic and Social Rights
(ICESCR) recognises the right of everyone to social security. The right to
social security 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. [24]
The right to an adequate standard of living, enshrined in article 11, requires Australia
to take steps to ensure the availability, adequacy and accessibility of food,
clothing, water and housing for all people in Australia.[25]
1.20
The committee has considered measures similar to the TCF on a number of
occasions.[26] The committee's previous analysis in relation to the Welfare Reform Bill (now
Act) stated that while the TCF reduces the non-payment penalty from eight weeks
to four weeks for a work refusal failure or dismissal due to misconduct, the eight
week non-payment penalty was subject to a waiver in situations of severe
financial hardship. By contrast no waiver from the four week non-payment
penalty would be available under the TCF. Accordingly, the committee concluded
that the financial penalty is likely to be incompatible with the right to
social security insofar as there may be circumstances where a person is unable
to meet basic necessities during the four week non-payment period. As such, the
extension of the TCF to a new class of vulnerable persons raises similar
concerns.
1.21
The statement of compatibility does not provide an assessment of whether
these measures are compatible with the right to social security and an adequate
standard of living.
1.22
Limitations on the right to social security and an adequate standard of
living are permissible where the limitation is in pursuit of a legitimate
objective, and is rationally connected and proportionate to that objective. The
statement of compatibility does not specifically identify the objective of
imposing penalties for refusing unsubsidised work, or for leaving or being
dismissed for misconduct from unsubsidised work, but states generally that:
...the measures will... ensure compliance action applies to CDP
participants who continue to be wilfully non-compliant... [t]his counters the
risk of long-term unemployment and welfare dependency to the individual,
communities and Australian society general.[27]
1.23
While reducing long-term unemployment and welfare dependency may be
capable of constituting a legitimate objective, no evidence is provided in the statement of
compatibility as to whether the existing compliance arrangements for CDP
participants are ineffective to achieve this objective. It is
especially unclear in circumstances where the statement of compatibility notes,
'participants [in remote areas] face higher barriers, fewer opportunities,
higher level of dependence on welfare and lower levels of literacy and
numeracy',[28] and the statement of compatibility to the Welfare Reform Bill (now Act)
explained that the rationale for not applying the TCF to CDP participants was
to 'reflect the unique labour market conditions that job seekers face in remote
Australia'.[29]
1.24
In relation to whether the measure is rationally connected to its stated
objective, it is unclear how limiting the availability of a waiver on the
grounds of severe financial hardship would achieve the stated objective of the
measures. The statement of compatibility does not specifically address how
suspending and cancelling welfare payments without the ability of the secretary
to grant a waiver for severe financial hardship is effective to reduce welfare
dependency and long-term unemployment in remote Australia, noting in particular
the earlier rationale for applying a different compliance framework in this
context.
1.25
As to the proportionality of the measure, it is relevant whether the
measure provides sufficient flexibility to treat different cases differently or
whether it imposes a blanket policy without regard to the merits of an
individual case. Removing the ability for the secretary to waive the
non-payment period on the grounds of financial hardship in effect removes the
ability to consider the merits of an individual case such as, for example,
whether a person may be unable to afford basic necessities during the four week
non-payment period.[30]
This may be of particular concern in CDP regions noting the statement of
compatibility states that participants in remote Australia face higher levels
of dependency on welfare than in non-remote Australia.[31]
As noted above, while the four week period is a reduction from the eight week
non-payment penalty that can be imposed under the current compliance framework,
four weeks is still a considerable period of time for a person dependent on
welfare to be without welfare payments. It is unclear how a person will afford
basic necessities during this period.[32]
In such a case, the committee has previously concluded that this type of
measure would likely be incompatible with the right to social security.[33]
1.26
Also relevant to proportionality is the extent of any interference with
rights in practice. The above analysis proceeds on the assumption that
subsidised jobs do not represent the only jobs available to CDP participants in
remote Australia. However, if the only jobs available to CDP participants in
remote areas are subsidised jobs, then this measure may be less likely, in
practice, to interfere with the right to social security, given the exception
from penalty for failures in relation to subsidised jobs. Further information
from the minister as to whether the labour market in CDP regions will be
comprised mostly or entirely by subsidised jobs would be useful for the
purposes of this analysis.
Committee comment
1.27
The preceding analysis raises questions as to whether the measure
constitutes a permissible limitation on the rights to social security and an
adequate standard of living.
1.28
The committee seeks the advice of the minister as to the
compatibility of the measure with the rights to social security and an adequate
standard of living, in particular:
- whether the measure is aimed at achieving a legitimate
objective for the purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a proportionate means of achieving
the stated objective (including whether there are other, less rights
restrictive, measures reasonably available, such as retaining the discretion of
the secretary to waive a non-payment period on the grounds of severe financial
hardship under section 42NC of the Social Security Administration Act; and the
extent to which, in practice, subsidised jobs represent the only jobs which may
be offered to CDP participants in particular areas of remote Australia).
Penalties for persistent non-compliance with mutual obligations
1.29
The application of the TCF to CDP participants means that income support
recipients, other than holders of subsidised jobs,[34] will be subject to escalating reductions in their income support payments for
persistent non-compliance with mutual obligations.[35]
1.30
The Social Security (Administration) (Persistent Non-compliance)
(Employment) Determination 2015 (No 1) (persistent non-compliance
determination) outlines the matters to be taken into account when determining
if a person has committed persistent mutual obligation failures.[36]
Relevantly, among the matters the secretary must take into account are the
findings of the most recent comprehensive compliance assessment in respect of
the person, and whether, during the assessment period (6 months) the person has
committed three or more mutual obligation failures.[37]
The secretary must not take into account failures outside the person's control,
but only failures that occurred intentionally, recklessly or negligently.[38]
The secretary also retains discretion to take into account other matters in
determining whether a person failed to comply with his or her obligations.[39]
1.31
For the first failure constituting persistent non-compliance, the rate
of participation payment for the instalment period in which the failure is
committed or determined will be halved.[40] For a second failure, the job seeker will lose their entire participation
payment and any add-on payments or supplements for that instalment period.[41]
For a third failure, the job seeker's payment will be cancelled from the start
of the instalment period and a four week non-payment period, starting from the
date of cancellation, will apply if the job seeker reapplies for payment.[42] As noted above, there will be no waivers for non-payment periods.
Compatibility of the measure with the right to social
security and right to an adequate standard of living
1.32
As the measure operates to cancel income support payments, it engages
the right to social security and an adequate standard of living. As noted
above, while the objective of 'reducing long-term unemployment and welfare
dependency' may be capable of constituting a legitimate objective, the
statement of compatibility does not explain how reducing and ultimately
cancelling welfare payments alone, without possibility of waiver for severe
financial hardship, is effective in achieving this objective. Nor does it
explain why the current compliance framework, which includes the possibility of
waiver in circumstances of severe financial hardship, is ineffective.
1.33
In relation to the proportionality of the measure, it is relevant that
the Social Security (Administration Act) 1999 and the persistent
non-compliance determination indicate that the secretary must not take into
account failures that are outside the person's control, that only failures that
occurred intentionally, recklessly or negligently are to be taken into account,
and that the secretary has latitude to take into account other matters when
determining whether mutual obligation failures are 'persistent'. This provides
some degree of safeguard for participants who were unable to comply with
requirements for reasons outside their control. However, there are still
questions as to whether it is proportionate to impose a non-payment penalty for
'reckless' or 'negligent' behaviour in meeting mutual obligations (such as
attending an appointment or a job interview) in circumstances where compliance
with mutual obligations is made more difficult by the conditions of remote
Australia, such as issues regarding transportation and communication, drug and
alcohol dependency, and lower levels of literacy and numeracy.[43]
1.34
In relation to the removal of the possibility of waiver of the four week
non-payment penalty in cases of financial hardship this is, as noted above,
likely to render the measure incompatible with the rights to social security
and an adequate standard of living where it renders persons unable to afford
basic necessities. Further information from the minister as to why it is not
possible to retain the secretary's discretion to waive non-payment periods in
cases of severe financial hardship and how it is expected persons will meet
basic necessities during a non-payment period would assist with this analysis.
Committee comment
1.35
The preceding analysis raises questions as to whether the measure
constitutes a permissible limitation on the rights to social security and an
adequate standard of living.
1.36
The committee seeks the advice of the minister as to the
compatibility of the measure with the rights to social security and an adequate
standard of living, in particular:
- whether the measure is aimed at achieving a legitimate
objective for the purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a proportionate means of achieving
the stated objective (including whether there are other, less rights
restrictive, measures reasonably available, such as retaining the discretion of
the secretary to waive a non-payment period on the grounds of severe financial
hardship under section 42NC of the Social Security Administration Act).
Payment suspension for a mutual obligation failure
1.37
Applying the TCF to CDP participants means that CDP participants who are
not engaged in subsidised employment are liable to payment suspension for a
mutual obligation failure unless they have a reasonable excuse.[44] The suspension period may last up to four weeks but ends when the person
complies with the reconnection requirement (such as reconnecting with an
employment provider) unless the secretary determines an earlier day.[45] If the job seeker fails to comply with the reconnection requirement within four
weeks, their social security participation payment will be cancelled.[46]
Compatibility of the measure with
the right to social security and an adequate standard of living
1.38
The suspension of social security payments for mutual obligation
failures may limit the right to social security and the right to an adequate
standard of living.[47]
As noted above, this right may be subject to permissible limitations where the
limitation pursues a legitimate objective, is rationally connected to (that is,
effective to achieve) that objective and is a proportionate way of achieving
that objective.
1.39
Assuming the objective of the measure is 'reducing welfare dependency
and long-term unemployment' (identified above at [1.10]), the concerns
discussed above as to whether this constitutes a legitimate objective and whether
the measures are rationally connected to that objective, are equally relevant
in relation to this measure.
1.40
As to proportionality, the existence of safeguards is relevant to the
proportionality of the measure. A relevant safeguard in the TCF includes that
suspension does not apply if the person has a 'reasonable excuse'. The
committee has previously concluded that, apart from certain measures in the
Welfare Reform Bill (now Act) which narrowed circumstances in which a person could
rely on drug and alcohol dependency as a 'reasonable excuse',[48] the range of circumstances which were identified by the minister as
constituting a 'reasonable excuse' meant that the measure may be compatible
with the right to social security.[49]
1.41
However, at the time of the committee's previous conclusion, the TCF did
not apply to participants in designated programs, such as the CDP.[50] Given the bill seeks to extend the TCF to CDP participants, the circumstances
constituting 'reasonable excuse' require re-examination to determine if they
function as adequate safeguards. Currently, the matters that the secretary must
take into account in deciding whether a person has a reasonable excuse for
committing a failure are:
- the person did not have access to
safe, secure and adequate housing, or was using emergency accommodation or a
refuge, at the time of the failure;
- the literacy and language skills
of the person;
- an illness, injury, impairment or
disability of the person;
- a cognitive, neurological,
psychiatric or psychological impairment or mental illness of the person;
- a drug or alcohol dependency of
the person;
-
unforeseen family or caring
responsibilities of the person;
- the person was subjected to
criminal violence (including domestic violence and sexual assault);
-
the person was adversely affected
by the death of an immediate family member or close relative;
- the person was undertaking paid
work at the time of the failure;
-
the person was attending a job
interview at the time of the failure.[51]
1.42
It is acknowledged that several of these requirements would operate as
important safeguards to protect the rights to social security and adequate
standard of living. However, it is not clear whether or not the matters
required to be taken into account by the secretary provide a sufficient
safeguard in relation to the unique conditions of remote Australia, for
example, challenges involved in covering long distances and limited transport
options.[52] While the instrument does not limit the discretion of a decision-maker to take
into account any factor that may provide a reasonable excuse, discretion in and
of itself may not constitute a sufficient safeguard under international law, as
it falls short of statutory protection. Further information from the minister
as to whether and how the reasonable excuse provisions will take into account
the unique conditions of remote Australia would therefore assist in determining
the proportionality of the measure.
1.43
It is noted that the statement of compatibility states that 'some...
mutual obligations requirements will be different to participants in non-remote
areas as these obligations have been designed to take into account the unique
nature of remote labour markets'.[53] No further detail is provided in the statement of compatibility, explanatory
memorandum or second reading speech as to how mutual obligation requirements
for CDP areas will differ from non-remote areas. In any case, these
differences appear to concern the content of the mutual obligations
requirements, rather than what constitutes a 'reasonable excuse' under the
legislation. Mutual obligation requirements are made by way of administrative
arrangement between the employment services provider and the job seeker,
potentially subject to change at any time. It is not clear whether adapting
mutual obligation requirements to the 'unique nature of remote labour markets' will
function as a sufficient safeguard given it is not enshrined in legislation. Further
information from the minister as to how mutual obligation requirements will
differ in remote Australia would assist in determining whether the measure has
adequate safeguards.
Committee comment
1.44
The preceding analysis raises questions as to whether the measure
constitutes a permissible limitation on the rights to social security and an
adequate standard of living.
1.45
The Committee therefore seeks the advice of the minister as to:
- whether the measure is aimed at achieving a legitimate
objective for the purposes of international human rights law;
- how the measure is rationally connected to (that is, effective
to achieve) the stated objective of reducing welfare dependence and long-term
unemployment in remote Australia; and
- whether the limitation is a reasonable and proportionate
measure for the achievement of the stated objective (including how mutual
obligation requirements will differ in remote Australia from non-remote
Australia and whether appropriate safeguards exist in relation to what
constitutes a reasonable excuse in the context of remote Australia).
Compatibility of the measure with
the right to equality and non-discrimination
1.46
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights (ICCPR).
Under article 26 of the ICCPR, if a state adopts social security legislation,
it must do so in a non-discriminatory manner.[54]
1.47
Under the ICCPR, a measure will amount to discrimination where it has either
the purpose ('direct' discrimination) or effect ('indirect' discrimination) of
treating individuals differently on the basis of a personal attribute (such as
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status).[55] The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral at face value or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute or other status.[56] 'Place of residence' within a country has been held to qualify as a prohibited
ground of discrimination under 'other status'.[57]
1.48
In relation to this measure, there is a concern that it will have a
disproportionate impact on Aboriginal and Torres Strait Islander people and
those living in remote Australia. It therefore raises concerns from the
perspective of discrimination on the basis of race or place of residence. The
statement of compatibility notes that 'more than 80 per cent of CDP
participants identify as Aboriginal and Torres Strait Islander people.'[58] Accordingly, by extending the TCF to CDP participants, the suspension and
cancellation of welfare payments that may occur as a result is likely to have a
disproportionate impact on Aboriginal and Torres Strait Islander people and job
seekers living in remote Australia.
1.49
The statement of compatibility acknowledges that the right to equality
and non-discrimination is potentially engaged by the bill, but its analysis is
limited to justifying why exceptions from some the aspects of the TCF in
relation to subsidised employment[59] constitute 'legitimate differential treatment'.[60]
The statement of compatibility does not appear to consider the possible
differential impact of ensuring 'all activity tested job seekers across
Australia will be subject to the same compliance framework, no matter where
they live'[61] on remote jobseekers and Aboriginal and Torres Strait Islander people in the
CDP (other than those offered or employed in subsidised jobs).
1.50
Where a measure impacts on particular group disproportionately it
establishes prima facie that there may be indirect discrimination.
However, differential treatment (including the differential effect of a measure
that is neutral on its face) will not constitute unlawful discrimination if the
differential treatment is based on reasonable and objective criteria such that
it serves a legitimate objective, is effective to achieve that legitimate
objective and is a proportionate means of achieving that objective.[62]
1.51
As noted above, no
evidence is provided in the statement of compatibility as to whether the
existing compliance arrangements for CDP participants are ineffective to
address the stated objective of the bill of reducing welfare dependence and
long-term unemployment in remote Australia. This raises questions as to whether the differential
treatment, being the disproportionate impact this measure may have on
Aboriginal and Torres Strait Islander people and jobseekers living in remote
Australia, is based on reasonable and objective criteria. Further information
from the minister to justify the rationale for the differential effect on
Aboriginal and Torres Strait Islander people and job seekers living in remote
Australia will assist in determining whether the measure is compatible with the
right to equality and non-discrimination.
Committee comment
1.52
The preceding analysis raises questions as to whether the measure
is compatible with the right to equality and non-discrimination.
1.53
The committee seeks the advice of the minister as to the
compatibility of the measure with the right to equality and non-discrimination,
in particular:
- whether the disproportionate impact the measure may have on
Aboriginal and Torres Strait Islander people and jobseekers living in remote
Australia constitutes differential treatment for the purposes of international
human rights law;
- whether the differential treatment is aimed at achieving a
legitimate objective for the purposes of international human rights law;
- how the differential treatment is effective to achieve (that
is, rationally connected to) that objective; and
- whether the differential treatment is a proportionate means of
achieving the stated objective.
Inability to access subsidised jobs for six months
1.54
Section 25 of the bill provides that a CDP participant who voluntarily
leaves subsidised employment or is dismissed for misconduct will not be subject
to an unemployment failure for the purposes of the TCF. However, the
explanatory memorandum states in relation to section 25 that where a
participant voluntarily leaves a subsidised job or is dismissed due to
misconduct, the job seeker will be prevented from taking up a place in
subsidised employment for six months.[63] This is not reflected in section 25 or elsewhere in the text of the bill.
Compatibility of the measure with
the right to work
1.55
The right to work is enshrined in article 6 of the ICESCR and includes
the right of 'everyone to the opportunity to gain his [or her] living by work
which he [or she] freely chooses or accepts'. It provides that, for full
realisation of that right, steps should be taken by a state including
'technical and vocational guidance and training programs, policies and
techniques to achieve steady economic, social and cultural development and
productive employment'.[64]
An aspect of the right is not to be unfairly deprived of employment.[65] The right to work may be subject to permissible limitations which are provided
by law and not arbitrary. In order for a limitation not to be arbitrary, it
must be prescribed by law, pursue a legitimate objective, and be rationally
connected to and proportionate to achieving that objective.
1.56
The statement of compatibility states that this right is engaged and
promoted by the bill, as it provides that CDP participants may choose to
decline an offer of subsidised employment, without penalty.[66]
1.57
However, it is not clear which provision of the bill gives effect to the
statement in the explanatory memorandum that if a participant voluntarily
leaves a job or is dismissed due to misconduct, the job seeker will be
prevented from taking up a place in subsidised employment for six months.
1.58
If the bill is proposed to have this effect, this could limit the right
to work if the labour market in CDP regions is comprised mostly or entirely of
subsidised jobs, as a CDP participant may be effectively excluded from the
opportunity to gain their living through work for six months. Further
information from the minister as to the proposed operation of the provision would
assist in determining the extent to which this proposed effect of the measure
limits the right to work.
Committee comment
1.59
The preceding analysis raises questions as to whether the
proposed exclusion on participants that have left or been dismissed from
subsidised employment from accessing further subsidised employment for six
months constitutes a permissible limitation on the right to work.
1.60
The committee seeks the advice of the minister as to the
compatibility of the measure with the right to work. In particular, the
committee seeks the advice of the minister as to:
- whether the proposed exclusion on participants that have left
or been dismissed from subsidised employment from accessing further subsidised
employment for six months is prescribed by law;
- an evidence-based explanation of the legitimate objective
being pursued (including how it addresses a pressing or substantial concern);
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a proportionate means of achieving
the stated objective (including whether there are other, less rights
restrictive, measures reasonably available and the existence of any safeguards).
Bills not raising human rights
concerns
1.61
Of the bills introduced into the Parliament between 10 and 13 September,
the following did not raise human rights concerns (this may be because the bill
does not engage or promotes human rights, and/or permissibly limits human
rights):
- Aged Care Quality and Safety Commission (Consequential Amendments
and Transitional Provisions) Bill 2018;
- Fair Work Amendment (Family and Domestic Violence Leave) Bill
2018;
- Shipping Registration Amendment Bill 2018;
- Social Services Legislation Amendment (Ending the Poverty Trap)
Bill 2018; and
- Treasury Laws Amendment (Supporting Australian Farmers) Bill 2018.
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