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Introduced into the House of
Representatives on 11 October 2012
Portfolio: Education, Employment and Workplace Relations
Committee view
1.2
The committee considers that the eligibility criteria in subsection
10(1)(g) of the bill is unlikely to raise issues of incompatibility with
article 26 of International Covenant on Civil and Political Rights (ICCPR).
1.3
The committee considers that the information-sharing provisions in the
bill would appear to be broadly consistent with the right to privacy in article
17 of ICCPR but seeks further information on particular aspects of the
provisions to assist it to form a final view on their compatibility with the
right to privacy.
1.4
Before forming a view on the compatibility of the bill with human
rights, the committee seeks clarification from the Minister for Employment and
Workplace Relations with regard to the compatibility of sections 11, 12 and 13
of the bill with the right to social security in article 9 of International
Covenant on Economic, Social and Cultural Rights (ICESCR) and the right to
non-discrimination in article 26 of International Covenant on Civil and
Political Rights (ICCPR).
Purpose of the bill
1.5
This bill will replace the administrative General Employee Entitlements
and Redundancy Scheme (GEERS) which currently assists employees who have lost
their employment due to the liquidation or bankruptcy of their employer and who
are owed certain employee entitlements.
1.6
The bill provides a scheme for the provision of financial assistance (an
‘advance’) to former employees whose employment has ended as the result of the
winding up or bankruptcy of their employer. After making an advance, the
Commonwealth assumes the individual’s right to recover these amounts through
the winding up or bankruptcy process of their employer.
Compatibility with human rights
Right to non-discrimination
1.7
The statement of compatibility states that the bill engages the right to
non-discrimination in article 26 of the International Covenant on Civil and
Political Rights (ICCPR) because a person must be an Australian citizen or the
holder of a permanent visa or a special category visa under the Migration
Act 1958 to be eligible for an advance (new subsection 10(1)(g)).
1.8
Differential treatment on prohibited grounds will not be contrary to
article 26 of ICCPR where it is reasonable, necessary and proportionate to
achieving a legitimate aim. The statement explains that:
The Bill establishes an
assistance scheme, which is intended to operate as a safety net for eligible
persons. In this way it is analogous to social security legislation, and care
has been taken to maintain some consistency with conditions of eligibility in
analogous social security legislation. This is a legitimate objective.
The limitation is also
reasonable in the context of the Bill’s purpose to provide a safety net for persons
whose employment has ended due to the insolvency of their employer.
Importantly, the restriction on eligibility in clause 10(1)(g) will not in any
way affect an excluded person’s right to recover any unpaid entitlements from
their former employer.
It is considered that the
limitations on the right to equality and non-discrimination which are contained
in clause 10(1)(g) of the Bill are not incompatible with the rights. The Bill
pursues a legitimate objective and making citizenship, residency, or visa
status a condition of eligibility for financial assistance under the Bill is
reasonable, necessary and proportionate to that objective.
1.9
The committee considers that the eligibility criteria in subsection
10(1)(g) of the bill, which effectively restricts the payment of advances to
individuals with established links to Australia, is unlikely to raise issues of
incompatibility with article 26 of ICCPR as it appears to have a reasonable relationship of proportionality
between the means employed and the objective sought to be realised.
Right to privacy
1.10
The statement of compatibility identifies that the information-sharing
provisions in division 3 of the bill engages the right to privacy in article 17
of ICCPR because it enables personal information about an employer or employee
to be disclosed ‘between the department and other parties who have a need for
the information in relation to the administration of the bill’.
1.11
Article 17 of the ICCPR provides that no one shall be subjected to
arbitrary or unlawful interference with their privacy. Collecting, using,
storing, disclosing or publishing personal information amounts to an
interference with privacy. In order for the interference not to be
‘arbitrary’, the interference must be for a legitimate objective and be
reasonable, necessary and proportionate to that objective.
1.12
The statement helpfully sets out the justification for each of the
relevant clauses and why the disclosure of personal information is considered necessary
in each particular circumstance.
1.13
The committee considers that the information-sharing provisions in
the bill would appear to be broadly consistent with article 17 of ICCPR as the
interference with the right to privacy is likely to be necessary to achieve the
aim of administering the scheme and the provisions appear to be drafted with
sufficient precision to ensure that the degree of interference is proportionate
to that objective.
1.14
The committee however notes that persons to whom information may be
disclosed include persons who are contracted by the Commonwealth for the
purpose of passing an advance on to a recipient. The statement claims that
these persons will be bound by relevant privacy clauses in their contract but
this requirement does not appear to be prescribed in the bill. Also, there is
no offence for the unauthorised disclosure of personal information, which is a
common feature in legislation which permits information to be disclosed for certain
purposes.
1.15
The committee proposes to write to the Minister for Employment and
Workplace Relations to seek his advice on the following matters before forming
a final view on the compatibility of these provisions with article 17 of ICCPR:
- Whether consideration should be given to including express privacy
obligations for contractors in the legislation.
- The reasons why the bill does not explicitly prohibit the
unauthorised disclosure of personal information.
Right to social security
1.16
The statement of compatibility states that the bill engages and promotes
the right to social security in article 9 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR):
The
bill establishes an assistance scheme, which is intended to operate as a safety
net for persons whose employment has ended due to the insolvency or bankruptcy
of their employer. This safety net could be characterised as ‘social insurance’
because it ensures that employees’ unpaid entitlements are met when their
employer becomes insolvent. It thus seeks to protect individuals from lack of
work-related income due to unemployment, and in this way, promotes the right to
social security.
1.17
In addition to the condition that a person must be an Australian
citizen, or the holder of a permanent visa or a special category visa under the
Migration Act 1958 to be eligible for an advance (new subsection
10(1)(g)), the bill also sets out various categories of persons who are
expressly excluded from eligibility. These comprise:
- individuals who have a personal connection with the employer (new
section 11);
- individuals who are newly employed after working as a contractor (new
section 12); or
-
individuals who fall within the scope of the Special Employee
Entitlements Scheme for Ansett Group Employees (new section 13).
1.18
The statement of compatibility does not address whether excluding these
particular categories of persons from the scheme is a reasonable limit on their
right to social security or whether it may amount to discrimination contrary to
article 26 of ICCPR.
1.19
The committee proposes to ask the Minister for Employment and
Workplace Relations to provide an assessment of the compatibility of sections
11, 12 and 13 of the bill with the right to social security in article 9 of
ICESCR and the right to non-discrimination in article 26 of ICCPR. The
assessment should address whether the measures seek to achieve a legitimate
objective and have a reasonable relationship of proportionality between the
means employed and the objective sought to be realised.
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