Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
Budget Savings (Omnibus) Bill 2016
Purpose
|
Introduces a range of
budget-related savings measures
|
Portfolio
|
Treasury
|
Introduced
|
House of Representatives,
31 August 2016
|
Rights
|
Social security; adequate
standard of living; freedom of
movement (see Appendix 2)
|
Previous report
|
7 of 2016
|
Background
2.3
The committee first reported on the Budget Savings (Omnibus)
Bill 2016 (the bill) in its Report 7 of 2016, and
requested further information from the Treasurer.[1]
2.4
The bill passed both Houses of Parliament with amendments on
15 September 2016, and received Royal Assent on 16 September 2016.
2.5
A response to the committee's inquiries was received from the
Minister for Social Services (the minister) on behalf of the Treasurer on 27 October
2016. The response is discussed below and is reproduced in full at Appendix 3.
Schedule 10—Newly arrived residents waiting period
2.6
Schedule 10 of the bill removed the exemption from the 104-week waiting
period for new migrants who are family members of Australian citizens or
long-term residents. The legislation now stipulates that such migrants are
prevented from accessing social security payments for the first 104 weeks of
their initial settlement period in Australia, unless the migrant is a permanent
humanitarian entrant.
2.7
The committee therefore sought the advice of the Treasurer on whether
this measure was compatible with the right to social security and right to an
adequate standard of living.
Minister's response
2.8
The minister noted that this amendment aligns this cohort of migrants
(relatives of Australian citizens or long-term residents) with newly arrived
residents who are also subject to a 104-week waiting period. The minister also
noted that permanent humanitarian entrants will continue to be exempt from this
waiting period. The minister concluded that, to the extent that this is a
limitation on human rights, this limitation is reasonable and proportionate.
2.9
However, the minister did not address the committee's specific
questions, namely, whether the removal of the waiting period is aimed at
achieving a legitimate objective, whether there is a rational connection
between the limitation and the objective, and whether the limitation is
reasonable and proportionate for the achievement of that objective.
2.10
The right to social security encompasses the right to access and
maintain benefits in order to alleviate and reduce poverty; and the right to an
adequate standard of living requires the government to ensure the availability,
adequacy and accessibility of food, clothing, water and housing for all people
in Australia.
2.11
While noting that the response states that the measure is to ensure that
all newly arrived migrants will be required to serve the same 104-week newly
arrived residents waiting period, no reasoning or evidence is provided as to
why this is a pressing or substantial concern or constitutes a legitimate
objective for human rights purposes. Managing limited budgetary resources may
be capable of being a legitimate objective for the purposes of international
human rights law, although this is not expressly identified in the minister's
response.
2.12
In order to be a justifiable limitation on the rights to social security
and an adequate standard of living, such a limitation must also be rationally
connected and proportionate to the achievement of that objective.
2.13
The measure would appear to be rationally connected to the objective of
managing limited budgetary resources as it will lead to a reduction of public
money spent on such payments.
2.14
However, there are serious questions as to whether the measure is
proportionate. Even recognising that permanent humanitarian entrants will
continue to be exempt from all social security payment waiting
periods, there remain broader questions in relation to the proportionality of
the measures.
2.15
More generally, the minister's response provides no information on how
the family members of Australian citizens or long-term residents will be able
to meet basic living expenses during the 104-week waiting period and what
specific arrangements, if any, will be open to them in situations of crisis.
Committee response
2.16
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.17
The measure engages and limits the rights to social security and
an adequate standard of living.
2.18
Noting the preceding legal analysis and the insufficient
information provided by the minister, the measure cannot be assessed as a proportionate
limitation on the rights to social security and an adequate standard of living.
Schedule 16—Carer allowance
2.19
Schedule 16 of the bill removed provisions that apply to backdate a
person's start day in relation to payment of carer allowance in certain
circumstances, and in so doing, aligned carer allowance and carer payment start
day provisions. Prior to the passage of the bill, a carer's allowance could be
backdated up to 12 weeks before the date of the claim where a person was caring
for a child with a disability, or an adult with a disability as a result of
acute onset.
2.20
The committee therefore sought the advice of the Treasurer on whether
this measure was compatible with the right to social security.
Minister's response
2.21
In justifying the limitation on the right to social security, the
minister's response identifies the objective of the measure as ensuring that
the social security system remains sustainable and targeted to those recipients
with the greatest need.
2.22
The minister also noted that carer allowance is not an income support
payment, and may be paid in addition to an income support payment, such as
carer payment. Accordingly, a carer would not be excluded from accessing other
social security benefits.
2.23
The minister's response concludes that the measure is compatible with
human rights because it does not affect a person's entitlement to income
support payments; the reduction in the period from when a carer allowance is
payable is reasonable, necessary and proportionate in achieving a legitimate
aim; and does not limit or preclude eligible persons from the benefits under
the Social Security Act 1991.
2.24
It is noted that ensuring the social security system remains sustainable
and targeted to those with the greatest need is a legitimate objective for the
purposes of international human rights law. The measures in Schedule 16 appear
rationally connected to achieving that objective and in light of the minister's
explanation regarding eligibility for the allowance, and continued access to
other social security payments, the measure appears proportionate to achieving
that objective.
2.25
Therefore, the measure is likely to constitute a justifiable limit on
the right to social security.
Committee response
2.26
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.27
Noting the preceding legal analysis, the committee considers that
the measure is likely to be compatible with the right to social security.
Schedule 18—Pension means testing for aged care residents
2.28
Schedule 18 removed the social security income and assets test
exemptions that were available to aged care residents who were renting their
former home and paying their aged care accommodation costs by periodic
payments. The changes were prospective, and align the pension income test with
the aged care means test, such that net rental income earned on the former
principal residence of new entrants into residential aged care is treated the
same way under both tests, regardless of how the resident chooses to pay their
aged care accommodation costs.
2.29
The committee therefore sought the advice of the Treasurer on whether
this measure was rationally connected and proportionate to the stated
objectives of the limitation on the right to social security, and whether it
will affect a person's ability to access an aged care facility.
Minister's response
2.30
The minister's response noted that the measure was consistent with the
right to social security, as it pursues a number of objectives, such as being
sustainable by reducing pension outlays; targeted to those in need; and fair,
by ensuring equality between individuals with similar income and assets. The
human rights analysis in the previous report accepted that these may be
legitimate objectives for the purposes of international human rights law.[2]
2.31
The minister also explained that those who are likely to be affected by
this measure 'will hold substantial levels of private income and assets' and
'have the capacity to be more self-reliant'.
2.32
Noting in particular the minister's advice that the measure will affect
those people who have substantial levels of private income and assets and have
the capacity to be more self-reliant, it appears that the measure is likely to
be a proportionate limitation on the right to social security.
Committee response
2.33
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.34
Noting the preceding legal analysis, the committee considers that
the measure is likely to be compatible with the right to social security.
Schedule 19—Employment income (nil rate periods)
2.35
Schedule 19 of the bill removed two income test exemptions for parents
in 'employment nil rate periods', the Family Tax Benefit Part A income test and
the parental income test that applies to dependent children receiving youth
allowance and ABSTUDY living allowance. The effect of the changes is that an
income support recipient is no longer able to retain entitlement to their
income support payment (which was available for up to 12 weeks) if their income
support payment is not payable due to employment income, either wholly or in
part.
2.36
The committee therefore sought the advice of the Treasurer on whether
this measure was compatible with the right to social security.
Minister's response
2.37
In justifying the measure, the minister stated that the current
exemption causes an inequality between families, where families subject to the
exemptions can receive greater financial assistance than families not subject
to the exemptions, even though both families may have the same income. The
minister also advised that the measure will encourage greater self-sufficiency
'by reducing perverse incentives for families to maintain contact with the
income support system rather than move to higher labour force attachment'.
2.38
The objective of these amendments, particularly in reducing incentives
to remain connected to the social income support system rather than the
workforce, is likely to be considered a legitimate objective for the purposes
of international human rights law. Although the minister's reply could have set
out further detail in relation to the proportionality of the measures, as the
families affected appear to have higher financial means, this measure appears
likely to be a proportionate limitation to achieve the stated objective.
Committee response
2.39
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.40
Noting the preceding legal analysis, the committee considers that
the measure is likely to be compatible with the right to social security.
Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016
Purpose
|
Amends the Fair Work Act
2009 in relation to enterprise agreements or workplace determinations
that cover emergency management bodies
|
Portfolio
|
Employment
|
Introduced
|
House of Representatives,
31 August 2016
|
Rights
|
Freedom of association;
collectively bargain; just and favourable conditions of work (see Appendix
2)
|
Previous report
|
7 of 2016
|
Background
2.41
The committee reported on the Fair Work Amendment (Respect for Emergency
Services Volunteers) Bill 2016 (the bill) in Report 7 of 2016, and
requested further information from the Minister for Employment in relation to
the human rights issues identified in that report.[3]
2.42
No response was received to the committee's request before the bill
passed both Houses of Parliament and received Royal Assent.[4]
2.43
Accordingly, the committee's concluding remarks on the bill are based on
the information available at the time of finalising this report.[5]
Prohibition of terms affecting emergency services volunteers in enterprise
agreements
2.44
The bill amended the Fair Work Act 2009 (Fair Work Act) to
provide that an enterprise agreement covering 'designated emergency management
bodies' must not include terms that adversely affect a body that manages
emergency services volunteers (volunteer body). 'Designated emergency
management bodies' include fire-fighting bodies, State Emergency Services,
bodies prescribed by the regulations, and bodies established for a public
purpose by or under a Commonwealth, state or territory law. As noted in the
initial human rights analysis, the prohibited terms as defined by the bill
could restrict the scope of negotiation and bargaining outcomes for numerous
matters in enterprise agreements, including matters relating to staffing levels
or occupational health and safety. The amendments in the bill would also have
the effect of invalidating certain terms in existing enterprise agreements.
2.45
As stated in the committee's initial report on the measure, prohibiting
the inclusion of particular terms in an enterprise agreement engages and limits
the right to just and favourable conditions of work, the right to freedom of
association and the right to collectively bargain.[6]
2.46
The interpretation of these rights is informed by International Labour
Organization (ILO) treaties, including the ILO Convention of 1948 concerning
Freedom of Association and Protection of the Right to Organize (ILO Convention
No. 87) and the ILO Convention of 1949 concerning the Right to Organise
and Collective Bargaining (ILO Convention No. 98), which protects the right of
employees to collectively bargain for terms and conditions of employment.[7]
2.47
The principle of 'autonomy of bargaining' in the negotiation of
collective agreements is an 'essential element' of Article 4 of ILO Convention
98 which envisages that parties will be free to reach their own settlement of a
collective agreement.[8] Where matters are excluded from the scope of bargaining, the outcomes that may
be reached between the parties are restricted.
2.48
The ILO's Freedom of Association Committee (FOA Committee) has stated
that 'measures taken unilaterally by the authorities to restrict the scope of
negotiable issues are often incompatible with Convention No. 98'.[9] However, the FOA Committee has noted that there are circumstances in which it
might be legitimate for a government to limit the outcomes of a bargaining
process, stating that:
any limitation on collective bargaining on the part of the
authorities should be preceded by consultations with the workers' and
employers' organizations in an effort to obtain their agreement.[10]
2.49
The statement of compatibility recognised that the bill engaged
collective bargaining rights and the right to freedom of association, but did
not provide a substantive assessment as to whether the restriction on the
freedom to collectively bargain was justifiable for the purposes of international
human rights law.
2.50
Accordingly, the committee sought further advice from the Minister for
Employment as to:
- whether the measure was aimed at achieving a legitimate objective
for the purposes of human rights law;
- whether the measure was rationally connected to the achievement
of that objective;
- whether the limitation was a reasonable and proportionate measure
to achieve the stated objective; and
- whether consultation had occurred with the relevant workers' and
employers' organisations in relation to the measure.
2.51
In the absence of this information, it is not possible to conclude that
the measure is compatible with the right to freedom of association, the right
to collectively bargain, and the right to just and favourable conditions of
work.
Committee response
2.52
The committee has concluded its examination of this issue.
2.53
The committee observes that the prohibition of terms in
enterprise agreements engages and limits the right to freedom of association,
the right to collectively bargain, and the right to just and favourable
conditions of work. While there are circumstances in which it may be legitimate
for the government to limit the outcomes of a bargaining process, the statement
of compatibility has not justified this limitation.
2.54
Noting in particular that a response was not received from the
minister regarding human rights issues identified in the committee's initial
assessment of the bill, the committee is unable to conclude on the information
before it that the measure is compatible with the right to freedom of
association, the right to collectively bargain, and the right to just and
favourable conditions of work.[11]
Plebiscite (Same-Sex Marriage) Bill 2016
Purpose
|
Seeks to establish the
legislative framework for, and
authorise federal
spending on, a compulsory vote in a national
plebiscite to ask
Australians whether the law should be changed
to allow same-sex
couples to marry
|
Portfolio
|
Attorney-General
|
Introduced
|
House of Representatives,
14 September 2016
|
Right
|
Equality and
non-discrimination (see Appendix 2)
|
Previous report
|
7 of 2016
|
Background
2.55
The committee reported on the Plebiscite (Same-Sex Marriage)
Bill 2016 (the bill) in its Report 7 of 2016, and
requested further information from the Attorney‑General in relation to
the human rights issues identified in that report.[12]
2.56
In order to conclude its assessment of the bill while it
is still before the Parliament, the committee requested that the
Attorney-General's response be provided by 26 October 2016. However, a
response was not received by this date.
2.57
Accordingly, the committee's concluding remarks on the bill are based on
the information available at the time of finalising this report.[13]
Public funding of the campaigns regarding the plebiscite proposal
2.58
The bill sets up a framework for a national plebiscite to ask registered
voters whether the law should be changed to allow for same-sex marriage. As
part of this framework, section 11A of the bill provides for up to
$15 million in public funding to be made equally available to two
committees established to conduct public campaigns either not in favour of the
proposal (the No Case) or in favour of the proposal (the Yes Case). The committee
previously noted its concerns to arise in relation to the funding of both the
Yes Case and the No Case.
2.59
Under the right to equality and non-discrimination in article 26 of the
International Covenant on Civil and Political Rights, states are required to prohibit
any discrimination and guarantee to all people equal and effective protection
against discrimination on any ground. Article 26 lists a number of grounds as
examples as to when discrimination is prohibited, which includes sex, religion
and 'any other status'. While sexual orientation is not specifically listed as
a protected ground, the treaty otherwise prohibits discrimination on 'any
ground', and the United Nations Human Rights Committee has specifically
recognised that the treaty includes an obligation to prevent discrimination on
the basis of sexual orientation.[14] On this basis, by restricting marriage to being between a man and a woman the
existing law[15] appears to directly discriminate against same-sex couples on the basis of
sexual orientation.[16]
2.60
The previous analysis stated that while the plebiscite relates to
possible amendments to the Marriage Act 1961 and the framework proposed
by the bill engages the right to equality and non-discrimination, the statement
of compatibility makes no reference to it.
2.61
Australia's obligations under international human rights law in relation
to the right to equality and non-discrimination are threefold:
- to respect—which requires the government not to interfere with or
limit the right to equality and non-discrimination;
- to protect—which requires the government to take measures to
prevent others from interfering with the right to equality and non‑discrimination;
and
- to fulfil—which requires the government to take positive measures
to fully realise the right to equality and non-discrimination.
2.62
The previous analysis noted that in relation to a number of other
grounds of discrimination the federal Parliament has adopted a significantly
different approach to that taken in this bill. In particular, federal
legislation directly prohibits discrimination on the basis of race, sex,
disability and age.[17] In contrast, this bill establishes, and provides substantial public funding to,
a 'Committee for the No Case' whose sole function is to publicly campaign
against changing the law to promote the right to equality and non‑discrimination
for same-sex couples. Were the campaign conducted by the 'Committee for the No
Case' to lead to vilification against persons on the basis of their sexual
orientation, this would not further respect for the principles of equality and
non-discrimination.
2.63
The committee further noted its concern that the funding of the Yes Case
may lead to vilification against persons on the basis of their religious
belief.
2.64
In this regard, the right to equality and non-discrimination also
applies in relation to religion. Further, article 18 of the ICCPR protects the
rights of all persons to think freely, and to entertain ideas and hold
positions based on conscientious or religious or other beliefs. Subject to
certain limitations, persons also have the right to demonstrate or manifest
religious or other beliefs, by way of worship, observance, practice and
teaching. The right includes the right to have no religion or to have non‑religious
beliefs protected.
2.65
The right to freedom of religion requires that the state should not,
through legislative or other measures, impair a person's freedom of religion.
While the right to hold a religious or other belief or opinion is an absolute
right, the right to exercise one's belief can be limited given its potential
impact on others. The right can be limited as long as it can be demonstrated
that the limitation is reasonable and proportionate and is necessary to protect
public safety, order, health or morals or the rights of others. The right to
non-discrimination often intersects with the right to freedom of religion and
each right must be balanced against one another.
2.66
Arguments made against same-sex marriage may be based on religious
beliefs. Additionally, one potential issue in the debate regarding the
inclusion of same-sex marriage in the Marriage Act is the scope for marriage
celebrants to refuse to officiate same-sex weddings on conscience grounds (this
issue is considered in detail in relation to the proposed Marriage Legislation
Amendment bills at [1.137] to [1.146] of this report). While criticism of
religious ideas in good faith is likely to be protected by freedom of
expression, speech which espouses hatred for persons of a particular religion
may amount to vilification.
2.67
As noted above, the statement of compatibility did not identify or
address the engagement of the right to equality and non-discrimination.
Accordingly, the committee sought the advice of the Attorney-General as to
whether the measure is compatible with the right and whether any guidelines in
relation to the expenditure of funding or other safeguards will apply.
Committee response
2.68
The committee has concluded its examination of this issue.
2.69
The committee observes that public funding of the campaigns
regarding the plebiscite proposal engages the right to equality and
non-discrimination, and that the statement of compatibility has not addressed
this issue.
2.70
The committee considers that there is potential for international
human rights concerns to arise in relation to the funding of both the Yes Case
and the No Case. In this respect, the committee considers that there may be
risks in relation to vilification on the basis of sexual orientation or
religious belief.
2.71
The committee further notes that article 18 of the ICCPR protects
the rights of all persons to think freely, and to entertain ideas and hold
positions based on conscientious or religious or other beliefs.
2.72
Noting that a response was not received from the Attorney-General
regarding the human rights issues identified in the committee's initial
assessment of the bill, the committee is unable to conclude on the information
before it that the measure would further respect for the principles of equality
and non‑discrimination.
2.73
Noting the human rights concerns raised above, the committee
draws the human rights implications of the public funding of the campaigns in
respect of the plebiscite proposal to the attention of the Parliament.
Obligations on broadcasters
2.74
The bill proposes to impose a requirement on broadcasters that for a
month before the plebiscite vote they must give a reasonable opportunity to a
representative of an organisation that is not in favour, or is in favour, of
the plebiscite proposal to broadcast 'plebiscite matter' during that period.[18] This would apply to commercial television and radio broadcasters, community
broadcasters, subscription television and persons providing broadcasting
services under a class licence. It also applies to the Special Broadcasting
Service (SBS) if, during the plebiscite period, SBS broadcasts plebiscite
matter in favour or not in favour of the plebiscite.
2.75
'Plebiscite matter' is broadly defined to include matter commenting on
the plebiscite itself, and also includes any matter commenting on same-sex
marriage (not necessarily connected to the plebiscite).[19]
2.76
The previous analysis noted that the statement of compatibility states
that the bill would promote the right to freedom of expression by ensuring that
broadcasters cannot selectively broadcast only one side of the debate. It also
states that it would promote the right to participate in public affairs by
ensuring that the free press and other media are able to comment on public
issues and inform public opinion.[20] The statement of compatibility goes on to say:
While this requirement may affect the editorial independence
of broadcasters, the requirement would be time limited. The impact on
broadcasters would be balanced with the promotion of the rights to freedom of
expression by to [sic] participate in public affairs. The requirement to give
reasonable opportunities is consistent with the approach taken to federal
elections and referendums in the Broadcasting Services Act 1992.[21]
2.77
The statement of compatibility makes no reference to the right to
equality and non-discrimination.
2.78
The previous analysis noted that under the Broadcasting Services
Act 1992 (Broadcasting Act), broadcasters are currently required
to give reasonable opportunities for the broadcasting of election matter to all
political parties contesting the election during the election period. However,
this is limited to political parties that were represented in either House of
Parliament immediately before the election.[22] It is also confined to 'election matters' which relates to soliciting votes for
a candidate, supporting a political party or commenting on policies of the
party or matters being put to the electors.
2.79
In contrast, the bill would require broadcasters to give an opportunity
to representatives of any organisation opposed to or in favour of the
plebiscite. It would also apply to the broadcasting of material relating not
only to the plebiscite, but also to same-sex marriage more broadly (not
restricted to the question of whether the law should be amended).
2.80
The right to freedom of expression requires states to ensure that public
broadcasting services operate in an independent manner and should guarantee
their editorial freedom.[23] The previous human rights assessment considered that while enabling both sides
of a debate in a national plebiscite to air their views may be a legitimate
objective in promoting freedom of expression and the right to participate in
public affairs, it is a limitation on editorial freedom and must be
proportionate to the legitimate aim sought to be achieved.
2.81
The only safeguard cited in the statement of compatibility is that the
requirement relating to the plebiscite is time limited. By contrast, the
corresponding requirement in the Broadcasting Act for election matter restricts
broadcasting opportunities to existing political parties already represented in
the Parliament. This provides a safeguard towards helping to ensure that
broadcasters are not required to broadcast the advertisements of organisations
unlikely to be elected. The current provisions in the bill provide no
equivalent safeguard. In addition, the proposed definition of 'plebiscite
matter' is not equivalent to that in relation to 'election matters' because it
is not restricted to the question of whether the law should be amended, but
includes any matter commenting on same-sex marriage more broadly.
2.82
The previous analysis further noted that Australia's international human
rights law obligation is to respect, protect and fulfil the right to equality
and non‑discrimination.
2.83
Requiring broadcasters to give a reasonable opportunity to the representative
of any organisation opposed to the plebiscite proposal to discuss same-sex
marriage generally could lead to vilification of persons on the basis of their
sexual orientation, which would not further respect for the principles of
equality and non-discrimination.
2.84
The committee also noted its concern as to whether the proposed access
to broadcasting could lead to vilification against persons on the basis of
their religious belief. The right to equality and non-discrimination also
applies in relation to religion.
2.85
The committee therefore stated that requiring broadcasters to give a
reasonable opportunity to the representatives of any organisation in
relation to 'plebiscite matters' engages the right to equality and
non-discrimination. The statement of compatibility has not identified or
addressed the engagement of this right.
2.86
In view of these concerns, the committee sought the advice of the
Attorney‑General as to whether the measure is compatible with the right
to equality and non-discrimination and whether any guidelines or other
safeguards will apply.
2.87
The committee further considered the concerns regarding limitations on
the editorial freedom of broadcasters and whether appropriate safeguards are in
place. The committee therefore sought the advice of the Attorney-General as to
whether the limitation is a reasonable and proportionate measure for the
achievement of its stated objective, and in particular, whether there are
sufficient safeguards in place with respect to the right to freedom of
expression.
Committee response
2.88
The committee has concluded its examination of this issue.
2.89
The committee observes that certain obligations on broadcasters
engage the right to freedom of expression and the right to equality and
non-discrimination, and that the statement of compatibility has not addressed
this issue.
2.90
A response was not received from the Attorney-General regarding
the human rights issues identified in the committee's initial assessment of the
bill. The committee is thereby unable to conclude on the information before it
that the measure is compatible with the right to freedom of expression and the
right to equality and non-discrimination.
Australian Crime Commission Amendment (National Policing Information)
Regulation 2016 [F2016L00712][24]
Purpose
|
Supports the merger of
CrimTrac and the Australian Crime Commission
|
Portfolio
|
Attorney-General
|
Authorising legislation
|
Australian
Crime Commission Act 2002
|
Last day to disallow
|
21 November 2016
|
Right
|
Privacy (see Appendix
2)
|
Previous report
|
7 of 2016
|
Background
2.91
The committee first reported on the instrument in its Report 7 of
2016, and requested further information from the Attorney-General.[25]
2.92
The Minister for Justice's response to the committee's inquiries was
received on 27 October 2016. The response is discussed below and is reproduced
in full at Appendix 3.
Collection and use of 'national policing information'
2.93
The Australian Crime Commission Amendment (National Policing
Information) Regulation 2016 (the regulation) prescribes a list of 210 bodies
that collect 'national policing information', and provides that the kind of
information prescribed is information that is held by or used to administer
twenty listed systems. The prescription of these bodies and systems was
intended to allow the Australian Crime Commission (ACC) to carry out CrimTrac's
former functions following the merger of the two agencies. As national policing
information is likely to include private, confidential and personal
information, the collection, use and disclosure of such information by the ACC
engages and limits the right to privacy.
2.94
The statement of compatibility for the regulation provides limited
assessment of its impact on the right to privacy; it does not explain why it is
necessary that the collection and use of the prescribed information is not subject
to the Privacy Act 1988 (Privacy Act), the protections for personal
information contained in the Australian Privacy Principles or oversight by the
Australian Information Commissioner, and provides no information on what other
safeguards will apply to the collection and use of national policing
information by the ACC (including whether any such safeguards are comparable to
those contained in the Privacy Act and Australian Privacy Principles).
2.95
The committee therefore sought advice as to whether the limitation is a
reasonable and proportionate measure for the achievement of its stated
objective, and in particular, whether there are sufficient safeguards in place
to protect the right to privacy (including safeguards that are comparable to
those contained in the Privacy Act).
Minister's response
2.96
The minister acknowledges that the collection and disclosure of
national policing information engages and limits the right to privacy, but
states that the limitation is reasonable and proportionate to achieve the
objective of enabling the ACC to fulfil its national policing information
functions, and that the Australian Crime Commission Act 2002 (ACC Act)
provides sufficient safeguards to protect the right to privacy. The minister
also states that the ACC has technical and administrative mechanisms in place
to ensure that national policing information is collected, used and stored
securely.
2.97
The minister advises that the majority of bodies prescribed as 'national
policing information bodies' by the regulation are included solely because they
are 'accredited bodies' to submit applications for police history checks for
employment and other vetting purposes. The minister states that the prescription
of these bodies as national policing information bodies is necessary to ensure
that information submitted in support of a person's application for a police
record check is protected against inappropriate disclosure, and does not have
the effect of authorising disclosure information to the ACC in circumstances
where they could not otherwise have lawfully done so. The minister also advises
that non-government bodies who wish to be accredited for this purpose must
undergo police checks to ensure they are suitable bodies to deal with sensitive
personal information, and must agree to comply with the requirements of the
Privacy Act in dealing with personal information collected or received as a
result of the police history checking process.
2.98
The minister also advises that each prescribed national policing
information system was originally established to meet a particular information
need of Australian police agencies and that the information held on each system
does not go beyond what is reasonably necessary for the purposes of that
system.
2.99
The minister notes that while the ACC is not subject to the Privacy Act,
the agency is experienced in ensuring sensitive information is appropriately
handled and secured and that its safeguards and accountability mechanisms are
specifically designed for the sensitive nature of its operations. Further, the
minister notes that the ACC is subject to the Freedom of Information Act
1982 (Cth) and that individuals may seek access to and correct their
personal information held by the ACC.
2.100
Finally, the minister notes that the Privacy Impact Assessment prepared
as part of the proposal to merge the ACC and CrimTrac recommended that the ACC
develop and publish, in consultation with the Office of the Australian
Information Commissioner, an information handling protocol that addresses the
way in which the agency will treat personal information. The minister advises
that preparation of this information handling protocol is currently underway.
2.101
The safeguards outlined in the minister's response are likely to improve
the proportionality of the limitation on the right to privacy resulting from
the collection, use and disclosure of national policing information. In
particular, it is noted that contractual arrangements with non-government
bodies seeking to be accredited for the purposes of conducting police history
checks require these bodies to comply with the Privacy Act when dealing with
personal information through the police check process. It is also noted that
guidance in the form of an information handling protocol is being prepared in
consultation with the Office of the Australian Information Commissioner, who
generally oversees the operation of the Privacy Act and Australian Privacy
Principles.
2.102
The legislative and administrative safeguards identified in the
minister's response may ensure that the regulation will only impose
proportionate limitations on the right to privacy. Nonetheless, a conclusion
that the regulation is compatible with human rights is difficult to reach
without the detail of the information handling protocol being available.
Committee response
2.103
The committee thanks the Minister for Justice for his response and
has concluded its examination of the regulation.
2.104
The preceding legal analysis indicates that there are a range of
measures that may assist to ensure that the regulation is a proportionate limit
on the right to privacy including relevant safeguards.
2.105
Noting the minister's advice that an information handling
protocol that addresses the way in which the ACC will treat personal information
is currently being prepared, the committee requests that a copy of this
document be provided to the committee once it is finalised.
Biosecurity (Human Health) Regulation 2016 [F2016L00719]
Purpose
|
Sets out the requirements
for human biosecurity measures to be taken under the Biosecurity Act 2015
|
Portfolio
|
Health
|
Authorising legislation
|
Biosecurity Act 2015
|
Last day to disallow
|
21 November 2016
|
Right
|
Privacy (see Appendix 2)
|
Previous report
|
7 of 2016
|
Background
2.106
The committee reported on the Biosecurity (Human Health)
Regulation 2016 (the regulation) in its Report 7 of 2016, and
requested further information from the Minister for Health.[26]
2.107
The minister's response to the committee's inquiries was received on
27 October 2016. The response is discussed below and is reproduced in full
at Appendix 3.
Requirements for taking, storing and using body samples
2.108
Section 10 of the regulation sets requirements for taking, storing,
transporting, labelling and using body samples obtained from an individual who
has undergone a specified kind of examination to determine the presence of a
human disease as a requirement of a human biosecurity control order. A human
biosecurity control order may require an individual to undergo medical
examination and have body samples taken including without consent in certain
circumstances.
2.109
Requirements for taking, storing, transporting, labelling and using body
samples engage and limit the right to privacy. However, the previous human
rights analysis noted that the right to privacy is not addressed in the
statement of compatibility for the regulation.
2.110
The previous analysis considered that the measure pursues a legitimate objective,
being to determine the presence of human diseases entering Australia, and was
rationally connected to that objective. However, the previous analysis also raised
questions in relation to the proportionality of the proposed measures. In
particular, it expressed concerns regarding the lack of adequate safeguards
including in relation to medical procedures that may be intrusive and how long
records of testing will be retained.
2.111
Accordingly, the committee sought the advice of the minister as to
whether the limitation on the right to privacy is a reasonable and
proportionate measure for the achievement of its stated objective, in
particular whether there are adequate safeguards in place in relation to the
taking, storing, transporting, labelling and use of body samples under the
regulation.
Minister's response
2.112
The minister's response advises that individuals operating under
section 10 of the regulation will always be qualified medical
professionals. The minister also notes that the included reference to appropriate
professional standards captures all standards and requirements that apply to
medical professionals in their care and treatment of patients, as well as
standards for laboratories in the storage, transportation and labelling of body
samples.
2.113
The minister states that she considers that adherence to existing
professional medical standards and requirements appropriately manage human
rights concerns, including privacy and respect for personal rights and
liberties.
2.114
Adherence to existing medical professional standards and requirements
may ensure that the measure operates in a manner that respects the right to privacy.
However, neither the regulation, the explanatory statement nor the minister's
response specify which medical and professional standards will apply. In order
to be compatible with human rights, the professional standard or requirement
would need to include explicit requirements that body samples be taken in the
least personally intrusive way and include proportionate requirements about the
retention and destruction of body samples. It is not possible to assess the
human rights compatibility of the provisions without knowing the content of the
relevant medical or professional standard, when the regulation itself is silent
on how body samples are to be taken, used, stored and destroyed.
2.115
Body samples can contain very personal information. Without specific
information from the minster as to the safeguards in place in relation to the
taking, storing, transporting, labelling and use of body samples under the
regulation, it is not possible to conclude that the measure is a permissible
limitation on the right to privacy.
Committee response
2.116
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.117
The committee observes that the taking, storing, transporting,
labelling and use of body samples, engages and limits the right to privacy; and
that the minister has not provided sufficient information so as to enable a
conclusion that the regulation is compatible with this right.
2.118
The committee recommends that consideration be given to amending
the measures to include effective safeguards in relation to the taking,
storing, transporting, labelling and use of body samples to protect the privacy
of individuals, for example, explicit requirements that samples be taken in the
least personally intrusive way and requirements about the length of time
samples may be retained.
Census and Statistics Regulation 2016 [F2016L00706]
Purpose
|
Prescribes the statistical
information to be collected for the census
|
Portfolio
|
Treasury
|
Authorising legislation
|
Census and Statistics
Act 1905
|
Last day to disallow
|
21 November 2016
|
Right
|
Privacy (see Appendix 2)
|
Previous report
|
7 of 2016
|
Background
2.119
The committee reported on the Census and Statistics
Regulation 2016 [F2016L00706] (the regulation) in its Report 7 of
2016, and requested a response from the Treasurer by 26 October 2016.[27]
2.120
The Treasurer's response to the committee's inquiries was received on
27 October 2016. The response is discussed below and is reproduced in full
at Appendix 3.
Statistical information to be collected from persons for the census
2.121
Sections 9–12 of the regulation set what 'statistical information' is to
be collected from persons for the census. This includes a person's name,
address, sex, age, marital status, relationship to the other persons at the
residence, level of educational attainment, employment, income, rent or loan
repayments, citizenship, religion, ancestry, languages spoken at home and
country of birth. Failing to provide this statistical information may result in
an offence.[28]
2.122
The right to privacy encompasses respect for informational privacy,
including the right to respect for private information and private life,
particularly the storing, use and sharing of such information.
2.123
However, this right may be subject to permissible limitations in a range
of circumstances.
2.124
The compulsory collection, use and retention of personal information by
government through an official census engages and limits the right to privacy.[29] The statistical information that is to be collected, used and retained under the
regulation reveals very significant information about an individual and their
personal life, including matters such as country of birth, ancestry, marital
status, living arrangements and income. This information provides a very
detailed picture of an individual's life.
2.125
Additionally, the information collected may be used on its own or with
other information to identify, contact or locate a person.
2.126
The Census and Statistics Act 1905 (the Act) provides for
penalties of up to $180 per day for failure to comply with a direction to
provide the prescribed statistical information.[30]
2.127
While the right to privacy may be subject to reasonable limits, the
previous human rights analysis noted that the statement of compatibility
provides no assessment of whether the limitation arising from sections 9–12 of
the regulation is a permissible limit on the right to privacy. The committee's
usual expectation is that, where a measure limits a human right, the
accompanying statement of compatibility provide a reasoned and evidence-based
explanation of how the measure supports a legitimate objective, is rationally
connected to that objective and is a proportionate way to achieve that
objective.
2.128
In relation to the apparent objective of the measures, the initial human
rights analysis noted that the regulation is likely to be considered as
pursuing a legitimate objective for the purposes of international human rights
law. Collecting detailed information on the population and the socio‑economic
status of households in Australia is an important mechanism for governments to
make informed decisions on resource distribution, including the implementation
of housing, healthcare, education and infrastructure programs. Further, the
availability of accurate statistical data is a particularly important tool for
governments to fulfil a range of human rights obligations, including in
relation to economic, social and cultural rights and rights to equality and
non-discrimination.
2.129
The initial human rights analysis also observed that the measures appear
to be rationally connected to their objective, in that the categories of
information collected by the census, such as a person's age, income and
educational attainment, may provide a valuable evidence base for policy
development and government decision-making.
2.130
However, it is unclear whether the measures are a proportionate means of
achieving their apparent objective. To be proportionate limitations of the
right to privacy, the measures must be accompanied by appropriate safeguards
and be sufficiently circumscribed with respect to the collection, use,
retention and disclosure of personal information. A measure that lacks these
elements may not be the least rights restrictive way of achieving the objective
of the measure, in which case it would be incompatible with the right to
privacy.
2.131
The initial human right analysis noted that the regulation itself makes
no provision for how the statistical information collected under it may be used,
retained, stored and disclosed; and that the regulation is also silent as to
how long the information, including identifying information such as names and
address, will be retained.
2.132
The Act does make provision in relation to when statistical information
may or may not be disclosed. For example, it permits the minister, with the
written approval of the Australian Statistician, to make legislative
instruments providing for the disclosure of information provided in the census.[31] The Act also provides that information of a personal or domestic nature
relating to a person shall not be disclosed in a manner that is likely to
enable the identification of that person,[32] and makes provision for the non-disclosure of census information to agencies or
to a court or a tribunal.[33] Recognising these provisions, the initial human rights analysis nonetheless
identified concerns regarding whether effective safeguards are in place to
ensure limits placed on the right to privacy are proportionate.
2.133
Accordingly, the committee sought the advice of the Treasurer as to
whether the limitation on the right to privacy is a reasonable and
proportionate measure for the achievement of its stated objective, in
particular whether there are sufficient safeguards in place in relation to the
collection, use, storage, disclosure and retention of personal information
under the regulation.
Treasurer's response
2.134
The Treasurer's response advises that the regulation does not make any
substantive changes to the matters previously prescribed in the Census and
Statistics Regulation 2015; that he does not consider that human rights have
been engaged or affected by the inclusion of these matters in this regulation;
and that the compulsory collection, use and retention of personal information
through the census is authorised by the Act. However, the Treasurer also states
that he considers the statistical information to be collected from persons for
the census is a reasonable, necessary and proportionate method in pursuit of a
legitimate objective, given the privacy safeguards in place.
2.135
Consistent with the approach set out in the guidance materials developed
by the Attorney-General's department, where an instrument limits a human right,
the committee requires that the statement of compatibility provide a detailed
and evidence-based assessment of the limitation. The fact that a new regulation
does not make substantive changes to what may previously have been provided for
through regulation does not mean that the new regulation does not engage and
limit human rights. Indeed, the committee's mandate involves examining regulations
that come before the Parliament for compatibility with human rights.[34] As noted in the initial human rights analysis of the current regulation, the
compulsory collection, use and retention of personal information by government
through an official census engages and limits the right to privacy. As such,
the statement of compatibility for this regulation should provide an assessment
of this limitation.
2.136
The Treasurer's response states that the ABS maintain significant
safeguards to protect census data and complies with its obligations under the Privacy
Act 1988 (the Privacy Act), and manage personal information in
accordance with the Australian Privacy Principles (APPs). However, the
Treasurer's response does not provide specific information on the operation of
the Privacy Act and the APPs in the context of information collected under the
census. It is noted, for instance, that an agency may collect or disclose
personal information where authorised to do so under another Australian law.[35] In this case, the other Australian law would be the regulation and its enabling
legislation, the Census Act. This means that the Privacy Act and the APPs in
and of themselves do not provide a sufficient answer in relation to the issue
of effective safeguards.
2.137
The Treasurer draws the committee's attention to the ABS Privacy policy
and a Census Privacy policy that are available online. However, as noted in the
initial human rights analysis of the regulation with reference to these
materials, administrative and discretionary safeguards are less stringent than
the protection of safeguards that are placed on a statutory footing.[36]
2.138
In relation to those concerns, the Treasurer's response argues that in
addition to these administrative safeguards, sections 13 and 19 of the Act also
protect information that was collected under the census. Section 19 of the Act
provides it is an offence for a person who is or has been a Statistician or an
officer to, either directly or indirectly, divulge or communicate to another
person (other than the person from whom the information was obtained) any
information in the census. These provisions are undoubtedly important
safeguards. Exceptions apply where the person divulges or communicates the
information for the purposes of the Act or the minister makes a legislative
instrument providing for disclosure under
section 13(1)-(2) of the Act. Section 13(3) provides that information of a
personal or domestic nature relating to a person shall not be disclosed in
accordance with a determination in a manner that is likely to enable the
identification of that person. Sections 13(3) and 19 are undoubtedly important
safeguards. However, as noted in the initial human rights analysis of the
regulation, despite these sections, there remain questions about how the
statistical information collected under the regulation will be used (including
within the ABS) and retained, including for what period of time.
2.139
As was acknowledged in the initial human rights analysis, the Treasurer
noted that the continued collection of information through the census has a
range of potential benefits for human rights, including enabling governments to
make more informed decisions on how to distribute resources, including
government funds.
2.140
The Treasurer also noted that the collection of personal information,
including names and addresses, is critical to ensuring the quality and value of
the census, and have been collected in every census conducted by the ABS, and
their collection is consistent with international practice. There is no information
provided about what international practices are being referred to. With respect
to the retention of statistical information, the Treasurer advised that the
retention of names and addresses is consistent with the Archives Act 1988 and that this information is destroyed when no longer required in accordance
with the Administrative Disposal Authority and the ABS' Records Disposal.
However, the response does not explain how these details represent effective
safeguards.
2.141
The Treasurer's response does not specifically and directly address
issues raised regarding the collection and retention of statistical
information, other than names and addresses, including matters such as country
of birth, ancestry, marital status, living arrangements and income. The Treasurer's
response also does not address concerns raised in the initial human rights
analysis about prolonged linking and retention of names and addresses with
other statistical information and whether this represents the least rights
restrictive approach. Noting the sensitive information that is required to be
disclosed through the census, the initial human rights analysis stated that
such linking may increase the risk of misuse of information and adverse impacts
on an individual. The analysis noted that all names and addresses collected in
the 2011, 2006 and all previous censuses were destroyed approximately
18 months after the conduct of the censuses.[37]
2.142
In this respect, the prolonged retention of names and addresses
collected in the 2016 census as a matter of ABS policy[38] may point to the need to have more specific standards in the Act or regulation
about how statistical data may be used, stored and retained. Under
international human rights law, permissible limits on human rights must be
prescribed by law. This means that a measure limiting a right must be set out
in legislation (or be permitted under an established rule of the common law).
It must also be accessible and precise enough so that people know the
circumstances under which government agencies may restrict their rights.[39] The Treasurer
has not addressed these specific concerns in his response.
2.143
Therefore, while the administrative and legislative safeguards noted in
the initial human rights analysis, and explained by the Treasurer, may ensure
that the measure operates in a manner that is proportionate and compatible with
human rights, there is a risk that in some cases statistical information
obtained by the 2016 census may be used, disclosed or retained in
circumstances where they are not the least rights restrictive way to achieve
the objective of informing decisions on how to distribute resources.
Accordingly, based on the information provided, the Act or the regulation would
need to include a wider range of safeguards to ensure compatibility with the
right to privacy.
Committee response
2.144
The committee thanks the Treasurer for his response and has
concluded its examination of this issue.
2.145
The committee observes that the compulsory collection, use and
retention of personal information by government through an official census
engages and limits the right to privacy; and that the Treasurer has not
provided sufficient justification so as to enable a conclusion that the
regulation is compatible with this right.
2.146
The committee therefore recommends that consideration be given to
amending the measure to include effective safeguards in relation to the
collection, use, storage, disclosure and retention of personal information
under the regulation, for example, explicit standards in the Act or regulation
about how statistical data may be used, stored and retained and placing the
current administrative safeguards on a statutory footing.
Federal Financial Relations (National Partnership payments) Determinations
No. 104—8 (March 2016)—(July 2016)
Purpose
|
Specifies the amounts to be
paid to the states and territories to support the delivery of specified
outputs or projects, facilitate reforms by the states or reward the states
for nationally significant reforms
|
Portfolio
|
Treasury
|
Authorising legislation
|
Federal Financial
Relations Act 2009
|
Last day to disallow
|
Exempt
|
Rights
|
Health; social security;
adequate standard of living; children; education (see Appendix 2)
|
Previous report
|
7 of 2016
|
Background
2.147
The committee has previously examined a number of related Federal
Financial Relations (National Partnership payments) Determinations made under
the Federal Financial Relations Act 2009 and requested and received further
information from the Treasurer as to whether they were compatible with
Australia's human rights obligations.[40]
2.148
The committee then reported on a number of new Federal Financial
Relations (National Partnership payments) Determinations (the determinations)
in its Report 7 of 2016 (previous report), and requested a response from
the Treasurer by 26 October 2016.[41]
2.149
The Treasurer's response to the committee's inquiries was received on
27 October 2016. The response is discussed below and is reproduced in full
at Appendix 3.
2.150
This report entry also includes the consideration of two new related
Federal Financial Relations (National Partnership payments) Determinations that
have been received since the committee's initial examination in its previous
report.[42]
Payments to the states and territories for the provision of health,
education, employment, housing and disability services
2.151
The Intergovernmental Agreement on Federal Financial
Relations (the IGA) is an agreement providing for a
range of payments from the Commonwealth government to the states and territories.
These include National Partnership payments (NPPs), which are financial contributions to support the delivery of specified projects,
facilitate reforms or provide incentives to jurisdictions that deliver on
nationally significant reforms. These NPPs are set out in National Partnership agreements made under the
IGA, which specify mutually agreed objectives, outcomes, outputs and
performance benchmarks.
2.152
The Federal Financial Relations
Act 2009 provides
for the Treasurer, by legislative instrument, to determine the total amounts payable in respect
of each NPP in line with the parameters established by the
relevant National Partnership agreements.
Schedule 1 to the determinations sets out the amount payable under the NPPs, contingent
upon the attainment of specified benchmarks or outcomes relating to such things
as healthcare, employment, disability, education, community services and
affordable housing.
2.153
Setting benchmarks for achieving certain standards, which may
consequently result in fluctuations in funding allocations, has the capacity to
both promote rights and, in some cases, limit rights. As such, the previous
analysis noted that the determinations could engage a number of rights, including
the right to health; the right to social security; the right to an adequate
standard of living including housing; the rights of children; and the right to
education.
2.154
Under international human rights law, Australia has obligations to
respect, protect and fulfil human rights. This includes specific obligations to progressively realise economic, social
and cultural (ESC) rights using the maximum of resources
available, and a corresponding duty to refrain from taking retrogressive
measures, or backwards steps, in relation to the realisation of these rights.
2.155
Because realisation of these rights
is reliant on government allocation of expenditure, a reduction in funding for
services such as health and education may be considered a retrogressive measure
in the attainment of ESC rights.[43] Any backward step in the level of attainment of such rights therefore needs to
be justified for the purposes of international human rights law.
2.156
The previous analysis noted that NPPs may be regarded as pursuing the
legitimate objective of providing tied funding in accordance with
mutually-agreed performance benchmarks and outcomes. However, the explanatory
statements to the determinations do not provide any particular or general
assessment of the extent to which fluctuations in funding, with reference to
the achievement or failure to achieve specific benchmarks or outcomes, may
promote human rights (where funding is increased) or be regarded as
retrogressive (where funding is reduced).
2.157
Accordingly, the committee requested further advice from the Treasurer
as to whether the setting of benchmarks for the provision of funds under the
NPPs is compatible with human rights (for example, how the benchmarks may or
may not support the progressive realisation of human rights such as the rights
to health and education); whether there are any retrogressive trends over time
indicating reductions in payments which may impact on human rights (such as,
health, education or housing); and whether any retrogressive measures or trends
pursue a legitimate objective; are rationally connected to their stated
objective; and are a reasonable and proportionate measure for the achievement
of that objective.
Treasurer's response
2.158
The Treasurer acknowledges the concern set out in the previous analysis
regarding whether setting benchmarks for the provision of funds under the NPPs
is compatible with human rights. The response states that the setting of
performance requirements promotes the progressive realisation of human rights
by creating an incentive for the efficient delivery of services, projects and
reforms where NPPs support human rights in sectors such as health, education,
housing and community services. As noted above at [2.154], the progressive
realisation of ESC rights is a fundamental aspect of Australia's obligations
under international human rights law.
2.159
The previous human rights assessment of the determinations also raised
concerns regarding whether there have been any retrogressive trends over time
in relation to the allocation of NPPs. The Treasurer advises that there has
been a general increase in funding since the IGA was signed in 2008 and the
payment of NPPs commenced. Specifically, total Commonwealth payments to the
states and territories have increased from $84.0 billion in 2008-09 to $106.2
billion in 2015-16. The response also notes that the total payments to the
states and territories are estimated to be at $116.5 billion in 2016-17.
Further, the Treasurer advises that the states and territories meet the
overwhelming majority of performance requirements in National Partnership
agreements. This indicates that setting mutually-agreed benchmarks for the
provision of payments under the NPPs is likely to be positively impacting a
number of service areas that affect the progressive realisation of ESC rights.
2.160
In relation to potential issues of decreases in funding and the impact
this may have on the capacity of states and territories to deliver essential
services, the Treasurer states that there is no evidence to suggest that the
setting of performance requirements would lead to a situation where states and
territories frequently become ineligible for NPPs due to a failure to meet
those requirements. He states that where payments do cease, this is usually
because the agreed project or reform is completed and no further funding is
required. As such, decreases in payments are usually a direct result of the
achievement of the agreement's stated objective. This in itself could indicate
potential steps towards the progressive realisation of ESC rights in that state
or territory.
2.161
The Treasurer also sets out other reasons for fluctuations in payments
that do not necessarily reflect retrogressive trends (for example, structural
changes to funding mechanisms as a result of the full implementation of the
National Disability Insurance Scheme).
2.162
The Treasurer's response demonstrates that while it is possible that
there may be fluctuations from month to month in the funding amounts
distributed to states and territories under the NPPs, generally trends show an
increase in funding over time. Further, the provision of such funding for the
achievement of objectives that would promote human rights in areas such as healthcare,
employment, disability, education, community services and affordable housing,
would assist the progressive realisation of a number of ESC rights.
Committee response
2.163
The committee thanks the Treasurer for his response and has concluded
its examination of the determinations.
2.164
The committee welcomes the useful information in relation to the
operation and impact of NPPs set out in this response.
2.165
The preceding legal analysis indicates that, based on the
information provided, the NPPs are unlikely to constitute a retrogressive
measure for the purposes of international human rights law.
2.166
Based on the information provided, NPPs are likely to assist and
provide a mechanism for the progressive realisation of a number of economic,
social and cultural rights.
2.167
The committee recommends that the above information provided by
the Treasurer be included in future statements of compatibility for related NPP
determinations to assist the committee to fully assess the continued
compatibility of NPPs with human rights.
Social Security (Administration) (Vulnerable Welfare Payment Recipient)
Amendment Principles 2016 [F2016L00770]
Purpose
|
Amends the Social Security
(Administration) (Vulnerable Welfare Payment Recipient) Principles 2013 to
insert additional decision-making principles that are relevant to making a
determination that a person is a 'vulnerable welfare payment recipient' for the
purposes of the Social Security (Administration) Act 1999
|
Portfolio
|
Social Services
|
Authorising legislation
|
Social Security
(Administration) Act 1999
|
Last day to disallow
|
21 November 2016
|
Rights
|
Equality and
non-discrimination; social security; adequate standard of living; private
life (see Appendix 2)
|
Previous report
|
7 of 2016
|
Background
2.168
The committee first reported on the Social Security (Administration)
(Vulnerable Welfare Payment Recipient) Amendment Principles 2016 [F2016L00770]
(the instrument) in its Report 7 of 2016, and requested further
information from the Minister for Social Services.[44]
2.169
The minister's response to the committee's inquiries was received on
27 October 2016. The response is discussed below and is reproduced in full
at Appendix 3.
Time limits on 'vulnerable welfare recipient' determinations
2.170
The instrument amends the Social Security (Administration) (Vulnerable
Welfare Payment Recipient) Principles 2013 [F2013L01078] (the 2013 principles)
to place a 12‑month limit on certain determinations made by the Secretary
of the Department of Social Services (the secretary) that result in vulnerable
young people being automatically subject to compulsory income management. The
committee examined the income management regime in its Eleventh Report of
2013: Stronger Futures in the Northern Territory Act 2012 and related
legislation (2013 review) and 2016 Review of the Stronger Futures
measures (2016 review).[45] In its 2016 review, the committee noted that the income management measures
engage and limit the right to equality and non‑discrimination, the right
to social security and the right to privacy and family.[46]
2.171
The statement of compatibility for the instrument recognised that the
rights to social security and privacy were limited by the measure. However, no
information was provided as to why a 12-month period of automatic compulsory income
management is more appropriate than a shorter period, or why a period of
automatic compulsory income management prior to individual assessment is
necessary at all. Additionally, the statement of compatibility provided no
information as to why young people who are automatically subject to income
management because they have been recently released from gaol or psychiatric
confinement will continue to be subject to open-ended determinations.
2.172
The committee therefore sought the advice of the Minister for Social
Services as to whether the limitation is a reasonable and proportionate measure
for the achievement of its stated objective; why a shorter period of operation
for a determination, or the removal of the automatic trigger for vulnerable
income management for young people, is not more appropriate; and why the
12-month limit on a determination does not apply to young people who have
recently been released from gaol or psychiatric confinement.
Minister's response
2.173
The minister advises that the time limits on 'vulnerable welfare
recipient' determinations were introduced in response to findings of the
Consolidated Place‑Based Income Management Evaluation 2015 (the PBIM
evaluation).[47] The minister states that the findings of this report show that the effectiveness
of income management in improving financial stability for vulnerable people is
maximised in the short-term, that 12 months is at the lower limit of the time
that the program has been shown to be most effective, and that a shorter
determination, or the elimination of the trigger, would not be appropriate
considering the balance of this evidence. The minister further states that by
improving financial stability the measure promotes, or is a proportionate
limitation on, the right to equality and non‑discrimination, the right to
social security, and the right to privacy.
2.174
The minister also states that the 12-month limit on a determination
still applies to young people who have recently been released from gaol or
psychiatric confinement, but that subsequent determinations based on this
trigger may still be made. The minister states that compulsory income
management is necessary to achieve the policy objective of short term financial
stability for young people in receipt of these crisis payments, regardless of whether
the person has been subject to a previous determination based on any of the
triggers.
2.175
However, while the minister's response relies on evidence from the PBIM
evaluation, the response does not appear to take into account specific findings
from the PBIM evaluation in relation to young people who are automatically
subject to income management, as opposed to people who volunteer for income
management, or are placed on income management as a result of being assessed by
a social worker.
2.176
In particular, the PBIM evaluation report states that longitudinal
survey results indicated that income management did not have a significant
impact on financial stability for people subject to the vulnerable measure of
income management.[48] The PBIM evaluation ultimately suggests the removal of automatic triggering
arrangements, as the measure has achieved relatively few positive outcomes
compared to voluntary income management, or income management for people who
are individually assessed by a social worker, and because the trigger mechanism
'is not sufficiently targeted to distinguish between consumers who stand to
benefit from the program and those who do not.'[49]
2.177
The PBIM evaluation, which was referred to by the minister, indicates
that the automatic trigger provisions for income management do not appear to be
effective in achieving, or are a proportionate means of achieving, the stated
objective of improving financial stability for vulnerable people.
2.178
As noted in the committee's initial report on the measure, restricting
the time that a vulnerable welfare recipient determination can operate will
allow a young person's suitability for income management to be individually
assessed after the 12-month period has expired. The initial human rights
analysis therefore considered that the instrument is an improvement to
continuing automatic compulsory income management as it allows for
consideration of a young person's individual suitability for the program once
the 12-month period has expired.
2.179
However, subjecting a person to compulsory income management for any
length of time engages and limits human rights. Additionally, automatic
triggering arrangements mean that there is not a requirement to make an
individual assessment of whether income management is appropriate for a young
person who receives these payments, unlike the process for making other
vulnerable welfare recipient determinations under the 2013 principles.[50] As this committee observed in its 2016 review, the absence of individual
assessment is relevant to the proportionality of the income management measure:
In assessing whether a measure is proportionate some of the
relevant factors to consider include 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, whether
affected groups are particularly vulnerable, and whether there are other less
restrictive ways to achieve the same aim...[51]
2.180
The committee's 2016 review found that the compulsory income management
regime does not operate in a flexible manner. Evidence also indicates that the
blanket application of the regime disproportionately affects Indigenous
Australians and the exemption process is not conducive to allowing Indigenous
Australians to apply for an exemption and to succeed in that application. On
this basis, the committee's 2016 review concluded that the income management
regime may be a disproportionate measure and therefore incompatible with
Australia's international human rights law obligations.[52]
2.181
On the basis of the evidence, the automatic imposition of income
management, even where time limited to 12 months, continues to raise the human
rights concerns set out in the committee's previous reports. In light of the
specific findings of the PBIM evaluation in relation to young people who are
automatically subject to income management, the minster's response does not
provide sufficient justification as to why a 12-month period of automatic
compulsory income management is more appropriate than a shorter period, or why
a period of automatic compulsory income management prior to individual
assessment is necessary at all.
Committee response
2.182
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.183
Subjecting a person to compulsory income management for any
length of time engages and limits the right to equality and non-discrimination,
the right to social security and the right to privacy and family. The
imposition of the limit on automatic compulsory income management for
'vulnerable welfare payment recipients' is preferable to the preceding
open-ended arrangements. Notwithstanding this, the minister has not provided
sufficient justification so as to enable a conclusion that the 12-month limit
on the automatic imposition of compulsory income management is sufficient to
ensure that compulsory income management is a proportionate limitation of these
rights.
2.184
The committee recommends that, in order for the measure to be
compatible with the right to equality and non-discrimination, the right to
social security and the right to privacy and family, consideration be given to
amending the income management regime to remove the automatic triggering
arrangements for vulnerable young people.
Mr Ian Goodenough MP
Chair
Navigation: Previous Page | Contents | Next Page