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Social
Security Legislation Amendment (Green Army Programme) Bill 2014
Portfolio:
Environment
Introduced: House
of Representatives, 26 February 2014
Summary of committee concerns
1.1
The committee seeks further information on how the measures in the bill
are compatible with the right to social security and the right to just and
favourable conditions of employment.
Overview
1.2
This bill proposes to amend the Social Security Act 1991 and the Social
Security (Administration) Act 1999 to implement changes necessary to
support the commencement of the Green Army. The Green Army will be a voluntary
initiative for young people aged 17-24 to participate in projects protecting
the environment, while gaining practical skills, training and experience.
1.3
The bill proposes to amend the above-mentioned Acts to specify:
-
that persons receiving a green army allowance under the Green
Army Programme cannot also receive a social security benefit or social security
pension and that a determination made in this regard may be backdated;
-
that participants of the Green Army Programme will not be
considered workers or employees for the purposes of various Commonwealth laws;
and
-
the income testing arrangements that will apply to a person
receiving a social security pension if their partner is receiving a green army
allowance.
Compatibility with human rights
Statement of compatibility
1.4
The bill is accompanied by a statement of compatibility that states that
the bill does not engage any of the applicable rights and freedoms.
Committee view on compatibility
1.5
The committee considers that the bill engages a number of rights which
were not addressed in the statement of compatibility. These concerns are set
out below.
Right to social security
1.6
The committee considers that the measures specifying that persons
receiving a green army allowance cannot also receive a social security benefit
or pension and specifying the income test arrangements applying to partners of
green army allowance recipients engage the right to social security.
1.7
The UN Committee on Economic, Social and Cultural Rights has stated that
social security should be available, adequate and accessible. In relation to
adequacy:
benefits must be adequate in amount and duration in order
that everyone may realise his or her rights to family protection and
assistance, an adequate standard of living and adequate access to health care,
as contained in articles 10, 11 and 12 of the [International Covenant on
Economic, Social and Cultural Rights].[1]
1.8
In particular, states have an immediate obligation to ensure minimum
essential levels of social security so as to enable persons to acquire at least
essential health care, basic shelter and housing, water and sanitation,
foodstuffs and the most basic forms of education.[2]
1.9
These measures may limit the right to social security. For example,
under the bill, a person receiving a green army allowance is barred from
receiving any other social security benefit or pension. Economic, social and
cultural rights, including the right to social security, may be subject to such
limitations 'as are determined by law only in so far as this may be compatible
with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society'.[3]
It is necessary for the government to demonstrate that the measure pursues a
legitimate objective and has a reasonable relationship of proportionality
between the means employed and the objective sought to be realised.
1.10
It is unclear to the committee whether the effect of the measures will
be to reduce a person's income support where they are barred from receiving
social security payments by virtue of receiving the green army allowance. It is
also unclear whether the green army allowance will be sufficient to meet
minimum essential levels of social security.
1.11
The committee intends to write to the Minister to seek further
information as to what impact the measures in the bill will have on the right to
social security and how the measures are compatible with that right.
Right to work
1.12
The bill proposes to amend the Social Security Act to specify that
people participating in the Green Army Programme are not taken to be workers or
employees under certain Commonwealth laws, including the Work Health and
Safety Act 2011, the Safety Rehabilitation and Compensation Act 1988,
and the Fair Work Act 2009.[4]
This includes participants on a full-time or a part-time basis who are
receiving the green army allowance and participants on a part-time basis who
are not receiving green army allowance.
1.13
The right to work includes a right to just and favourable conditions of
employment.[5]
This includes, for example, remuneration which provides workers with a fair
wage and a decent living and safe and healthy working conditions with policies
in place designed to minimise workplace health hazards and mechanisms to
investigate workplace accidents.
1.14
The committee notes that the Green Army Programme is a voluntary
initiative. However, it is intended that participants may participate in the
Programme on a full-time basis and as such, participation may be their sole
means of earning a living. The committee also notes that part-time Green Army
Team supervisors who are not receiving the green army allowance because they
are receiving a wage from their Service Provider employer will also be excluded
from the operation of the above-mentioned Commonwealth laws under the bill.[6]
1.15
The committee considers that the exclusion of participants from such
laws may constitute a limitation on the right to just and favourable conditions
of employment. The statement of compatibility has not addressed why it is
necessary to exclude participants from such laws, in particular workplace
health and safety protections, and how the exclusion is proportionate (for
example, whether such persons may be protected through other means should they
suffer an injury while undertaking voluntary work under the Programme).
1.16
The committee intends to write to the Minister to seek further
information on how the bill is compatible with the right to just and favourable
conditions of employment, including why it is not possible for the bill itself
to exclude part-time supervisors from the scope of the proposed exclusion from
Commonwealth laws.
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