Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon. Josh Frydenberg MP)Chapter 23 Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Schedule 1 - Enhancing the instant asset write-off
23.1 Schedule 1 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.2 Schedule 1 to this Bill amends the income tax law to increase the cost threshold below which small business entities can access an immediate deduction for depreciating assets and certain related expenditure (instant asset write-off) from $30,000 to $150,000, from 12 March 2020 to 30 June 2020.
23.3 Schedule 1 to this Bill also amends the tax law to:
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- provide access to an instant asset write-off to entities with an aggregated turnover of $10 million or more but less than $500 million (up from the existing cap of $50 million); and
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- make the instant asset write-off available for depreciating assets and certain related expenditure costing less than $150,000, from 12 March 2020 to 30 June 2020.
23.4 These amendments complement the existing instant asset write-off for small and medium sized business entities.
23.5 The amendments are designed to support business investment over the period from the 2020 announcement time to 30 June 2020.
Human rights implications
23.6 Schedule 1 to this Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.7 Schedule 1 to this Bill is compatible with human rights as it does not raise any human rights issues.
Schedule 2 - Backing business investment
23.8 Schedule 2 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.9 The amendments in Schedule 2 to this Bill temporarily allow businesses with aggregated turnover of less than $500 million in an income year to deduct depreciation expenses at an accelerated rate in those income years that the asset was first used or installed and ready for use for a taxable purpose if it meets certain conditions.
23.10 Generally, to be eligible to apply the accelerated rate of deduction, the depreciating asset must satisfy a number of conditions including that the asset:
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- is new and has not previously been held (and used or installed ready for use) by another entity (other than as trading stock or for testing and trialling purposes);
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- is an asset for which an entity has not claimed depreciation deductions, including under the instant asset write-off rules; and
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- is first held, and first used or installed ready for use for a taxable purpose between 12 March 2020 and 30 June 2021 (inclusive).
23.11 Under the amendments, different rules apply depending on whether or not an entity is using the simplified rules for capital allowances for small businesses.
23.12 An entity with aggregated turnover of less than $500 million in the income year that does not use the simplified depreciation rules may deduct an amount at an accelerated rate for qualifying assets.
23.13 A small business entity (generally, an entity with an aggregated turnover less than $10 million in the income year) that uses the simplified depreciation rules may deduct an amount equal to 57.5 per cent (rather than 15 per cent) of the taxable purpose proportion of the adjusted value of a qualifying depreciating asset added to the general small business pool in an income year.
Human rights implications
23.14 Schedule 2 to this Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.15 Schedule 2 to this Bill is compatible with human rights as it does not raise any human rights issues.
Schedule 3 - Boosting Cash Flow for Employers (Coronavirus Economic Response Package) Bill 2020
23.16 The Cash Flow Boost Bill and Schedule 3 to this Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.17 The Cash Flow Boost Bill provides that the Commissioner must make cash flow boost payments to eligible entities comprising the first cash flow boost payments and the second cash flow boost payments. The first cash flow boost payments are required to be made by the Commissioner to an eligible entity for a period ending from March 2020 to June 2020 for which the entity notifies the Commissioner of an amount the entity has withheld if:
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- the entity makes a payment that is subject to withholding obligations under Subdivisions 12-B, 12-C or 12-D (broadly, a payment of wages or salary or similar remuneration), whether or not any amount is actually withheld, in the period;
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- either:
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- the entity was a small or medium business entity, or a charity or other not-for-profit entity of equivalent size, for the most recent income year of the entity for which an assessment of income tax has been made by the Commissioner; or
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- the Commissioner is reasonably satisfied that it is likely that the entity is a small or medium business entity, or a charity or other not-for-profit entity of equivalent size, for the income year that includes the period;
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- the entity has notified the Commissioner of their entitlement in the approved form;
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- the period is one of the following:
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- the quarters ending in March 2020 or June 2020; and
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- the months of March 2020, April 2020, May 2020 or June 2020;
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- if the entity is not an Australian Charities and Not-for-profits Commission registered charity, it both:
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- held an ABN on 12 March 2020; and
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- either derived assessable income from carrying on a business in the 2018-19 income year or made one or more supplies for consideration in the course of an enterprise it carried on within Australia in tax periods commencing after 1 July 2018 and ending before 12 March 2020 and notice of the income or supplies was held by the Commissioner on or before 12 March 2020 or within such further time as the Commissioner allows; and
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- the entity (or an associate or agent of an entity) has not engaged in a scheme for the sole or dominant purpose of seeking to make the entity entitled to the first cash flow boost or increase the entitlement of the entity to the first cash flow boost.
23.18 The payment will generally be made on lodgement of the activity statement notifying the Commissioner of their withholding liabilities for the period and can be provided as a credit against tax liabilities.
23.19 All eligible entities will receive a minimum cash flow boost payment of $10,000 in the first period for which they are eligible. Entities will receive further amounts, based on the amount withheld, up to a maximum total of $50,000 across all cash flow bonus payments to the entity.
23.20 The Commissioner must also make the second cash flow boost payments to an entity for a total amount equal to the amount of the first cash flow boost payments to which the entity is entitled.
23.21 These second cash flow boost payments are payable in equal instalments for either:
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- the months of June, July, August and September 2020; or
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- the June and September 2020 quarters.
23.22 The second cash flow boost payments will generally be made on lodgement of the activity statement containing the GST return of the entity for the period.
23.23 Schedule 3 to this Bill make consequential amendments to various Acts arising from the Cash Flow Boost Bill.
Human rights implications
23.24 The Cash Flow Boost Bill and Schedule 3 to this Bill do not engage any of the applicable rights or freedoms.
Conclusion
23.25 The Cash Flow Boost Bill and Schedule 3 to this Bill are compatible with human rights as they do not raise any human rights issues.
Schedule 4 - Stimulus payments to households to support growth
23.26 Schedule 4 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.27 Schedule 4 to this Bill provides for the payment of economic support payments of $750 to approximately 6.6 million Social Security and Veterans' income support and compensation recipients, Farm Household Allowance recipients, Family Tax Benefit recipients and holders of a Pensioner Concession Card, Commonwealth Seniors Health Card or Commonwealth Gold Card.
23.28 To be eligible for the first economic support payment, a person must be residing in Australia and be receiving one of the qualifying payments or hold one of the qualifying concession cards on a day during the period starting on 12 March 2020 and ending on 13 April 2020 (inclusive).
23.29 The second economic support payment is be available to Social Security and Veterans' income support recipients, , Family Tax Benefit recipients and holders of a of a Pensioner Concession Card, Commonwealth Seniors Health Card or Commonwealth Gold Card who receive their payment or hold their concession card on 10 July 2020.
Human rights implications
23.30 This Schedule engages the following human rights:
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- The right of everyone to social security in Article 9, and the right of everyone to an adequate standard of living for an individual and their family, including adequate food, clothing and housing, and the continuous improvement of living conditions in Article 11 of the International Covenant on Economic, Social and Cultural Rights; and
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- The rights of the child in Article 26 of the Convention on the Rights of the Child.
The right of everyone to social security and an adequate standard of living
23.31 The objective of creating a new Economic Support Payment promotes Article 9 and 11 by providing further payment to assist in achieving an adequate standard of living. The pursuit of this objective also promotes human rights by supporting the Convention on the Rights of Persons with Disabilities.
The rights of the child
23.32 This Economic Support Payment promotes Article 26 by enhancing the rights of the child to social security, as the payment will be made to a group of recipients with children, including recipients of Parenting Payment Single and FTB. The payment is targeted at vulnerable groups who receive Government assistance and has a flow on effect to the children of recipients by increasing the support for families.
Conclusion
23.33 Schedule 4 to this Bill is compatible with human rights because it promotes the protection of human rights for some of the most vulnerable groups in society.
Schedule 5 - Delegation power for the Director of Human Biosecurity
23.34 Schedule 5 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.35 Schedule 5 to this Bill provides for the Director of Human Biosecurity to delegate functions or powers under Part 3 of Chapter 2, in relation to human biosecurity control orders, to an SES employee or acting SES employee in the Department of Health who is a human biosecurity officer.
Human rights implications
23.36 Schedule 5 to this Bill engages the following list of rights:
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- Article 12 of the ICESCR - right to health;
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- Article 9 of the ICCPR - right to liberty and freedom from arbitrary detention / security of the person; and
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- Articles 9(4) and 14(5) of the ICCPR - right to seek review.
23.37 Article 12 of the International Covenant on Economic, Social and Cultural Rights protects the right of all individuals to enjoy the highest attainable standards of physical and mental health. This includes the application of measures for the prevention, treatment and control of epidemic, endemic, occupational and other diseases.
23.38 Schedule 5 to this Bill promotes the right to health by providing powers to control the spread of communicable diseases that may cause serious harm to human health, and ensures that any person developing signs or symptoms of these diseases are provided with prompt medical assessment and treatment.
23.39 The right to liberty and freedom from arbitrary detention under Article 9 of the International Covenant on Civil and Political Rights protects the right of all individuals to liberty and freedom from arbitrary detention. The right to personal liberty requires that persons not be subject to arrest and detention except as provided for by law and provided that neither the arrest nor the detention is arbitrary. The right applies to all forms of detention where people are deprived of their liberty.
23.40 In all decisions relating to the management of human biosecurity risk, the conflicting interests of the individual and the community must be considered. In some circumstances, the community risk is such that an individual's liberty must be restricted to ensure they do not endanger the health of others.
23.41 The provisions in Schedule 5 to this Bill may operate to restrict the right to liberty and freedom from arbitrary detention, through giving directions to individuals requiring compliance with biosecurity measures under a human biosecurity control order. Some of these biosecurity measures will restrict an individual's liberty and freedom from detention. These provisions operate to ensure that measures imposed under a human biosecurity control order are reasonable and proportionate to the objective of reducing or preventing the spread of listed human diseases.
23.42 If an individual does not consent to a biosecurity measure, then they may seek internal review by the Director of Human Biosecurity or their delegate. In conducting a review, the Director of Human Biosecurity or their delegate must give consideration to the factors affecting the health of the individual, and the reasons why they do not consent to the biosecurity measure. The Biosecurity Act 2015 prescribes timeframes for the Director or their delegate to complete the review to limit the time that the individual's liberty may be restricted.
Conclusion
23.43 Schedule 5 to this Bill is compatible with human rights as it does not raise any human rights issues.
Schedule 6 - Environmental Management Charge
23.44 Schedule 6 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.45 Schedule 6 to this Bill amends the Great Barrier Reef Marine Park Regulations 2019 to effectively waive the Environmental Management Charge for the period 1 April 2020 to 31 December 2020.
Human rights implications
23.46 Schedule 6 to this Bill engages the right to freedom of movement (International Covenant on Civil and Political Rights, article 12) and the prohibition on interference with privacy and attacks on reputation (International Covenant on Civil and Political Rights, article 17).
Freedom of movement
23.47 The funds received from the Environmental Management Charge are vitally important in the day-to-day management of the Great Barrier Reef Marine Park (Marine Park) and in improving its long-term resilience. The Environmental Management Charge is a charge associated with most commercial activities, including tourism operations, non-tourist charter operations, and construction and operation of facilities. For most standard tourism operations, Marine Park visitors participating in a tourist activity are liable to pay the charge to the permittee, who then remits the charge to the Great Barrier Reef Marine Park Authority. Other operations in the Marine Park such as those involving the hire of equipment, installation and operation of tourist facilities, underwater observatories, sewage outfalls and vending operations, attract quarterly Environmental Management Charge charges to the Great Barrier Reef Marine Park Authority. All funds received as Environmental Management Charge payments are applied directly to management of the Marine Park.
23.48 The Environmental Management Charge restricts the freedom of movement as without payment of the charge visitors to the Marine Park are not able to engage in activities that attract the charge in the Marine Park, and permit holders are not permitted to operate. This restriction is reasonable as it is consistent with the overall balancing of providing for entry and use to the Marine Park and protection and conservation of the environment. It is also a necessary and proportionate measure given that the funds are directed to the day-to-day management of the Marine Park and in improving its long-term resilience, and the funds are raised from the users of the Marine Park.
23.49 The amendments made by Schedule 6 to this Bill temporarily decrease the restriction on the freedom of movement by waiving the Environmental Management Charge from the period 1 April 2020 to 31 December 2020.
Prohibition on interference with privacy and attacks on reputation
23.50 Article 17 of the International Covenant on Civil and Political Rights prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.
23.51 The Great Barrier Reef Marine Park Regulations engage rights regarding personal information to the extent that quarterly Environmental Management Charge returns and logbook information containing personal information is required to be provided to the Great Barrier Reef Marine Park Authority and is used by the Authority to determine whether the correct amount of Environmental Management Charge is being collected (sections 229 to 231 of the Great Barrier Reef Marine Park Regulations).
23.52 The limitation on privacy imposed by the Great Barrier Reef Marine Park Regulations is necessary for attaining the objects of the Great Barrier Reef Marine Park Act 1975 , protecting the rights and freedoms of others, and in the interests of public order. Specifically, the provisions are necessary for law enforcement purposes.
23.53 Although article 17 of the International Covenant on Civil and Political Rights does not set out reasons for which the right to privacy may be limited, permissible limitations recognised in other articles, such as limitations which are necessary for the protection of public health, might be legitimate objectives by which the right to privacy may be limited. On that basis, it appears the aim of protecting the environment in the Marine Park (which promotes the protection of public health) may be a legitimate basis for limiting the right to privacy. Limitations on the right to privacy must be authorised by law and must not be arbitrary. The limitations are not arbitrary. They apply only in very specific circumstances and do not allow decision makers much discretion on authorising interferences with privacy. They do not go beyond what is reasonable to achieve their objectives and are subject to the protections in the Privacy Act 1988 (the Privacy Act) that apply to the collection and use of personal information by the Great Barrier Reef Marine Park Authority.
23.54 The amendments made by Schedule 6 to this Bill temporarily decrease the limitation on privacy by waiving Environmental Management Charge from the period 1 April 2020 to 31 December 2020, quarterly logbook returns and Environmental Management Charge logbook information would not be required under the Great Barrier Reef Marine Park Regulations for the period during which Environmental Management Charge is waived.
Conclusion
23.55 Schedule 6 to this Bill is compatible with human rights as it temporarily decreases existing limitations on human rights, and the existing restrictions are necessary, reasonable and proportionate.
Schedule 7 - Assistance for apprentices and trainees and the aviation sector
23.56 Schedule 7 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.57 Section 32B of the Financial Framework (Supplementary Powers) Act 1997 authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 and to make, vary and administer arrangements and grants for the purposes of programs specified in those regulations. Schedule 1AA and Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 specify the arrangements, grants and programs. The Financial Framework (Supplementary Powers) Act 1997 applies to Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the PGPA Act.
23.58 Schedule 7 to this Bill amends Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 to establish legislative authority for government spending for two new measures:
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- a new measure designed to assist employers retain apprentices and trainees, which will be administered by the Department of Education, Skills and Employment; and
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- a measure to provide financial assistance to participants in the Australian aviation sector to assist with the impact on the sector of the Coronavirus, which will be administered by the Department of Infrastructure, Transport, Regional Development and Communications.
23.59 New table item 408 establishes legislative authority for government spending on a measure that provides financial assistance to businesses impacted by the Coronavirus, to support them to retain their existing apprentices and trainees. It also aims to encourage employers and Group Training Organisations to re-employ apprentices and trainees displaced as a result of the impact of the Coronavirus on their employer.
23.60 Funding will be provided:
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- for wage subsidies as part of the existing Australian Apprenticeships Incentives Program to support small businesses (including those using a Group Training Organisation) to retain their existing apprentices and trainees, and businesses of any size and Group Training Organisations to re-engage apprentices and trainees displaced from small businesses;
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- to Australian Apprentice Support Network providers, under their existing contractual arrangements with the department, to support implementation of the initiative; and
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- to the National Apprentice Employment Network to co-ordinate reemployment of displaced apprentices throughout their network of host employers across Australia.
23.61 New table item 409 establishes legislative authority for government spending on a measure that provides financial assistance to aviation sector participants impacted by the Coronavirus. This measure includes funding for airlines and airports who are bearing the brunt of the impact of the dramatic reductions in international and domestic air travel due to the Coronavirus. The funding will include:
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- reimbursing airlines to give effect to a waiver of aviation fuel excise;
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- providing a rebate to airline operators for domestic aviation screening costs; and
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- providing additional funding for infrastructure implementation costs and operational costs associated with enhanced security requirements at regional airports.
Human rights implications
Assistance for Apprentices and Trainees
23.62 The measure promotes the following rights:
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- the right to education - Article 13 of the International Covenant on Economic, Social and Cultural Rights and Articles 4, 6 and 28 of the United Nations Convention on the Rights of the Child; and
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- the right to work - Article 6 of the International Covenant on Economic, Social and Cultural Rights.
Right to education
23.63 The measure engages:
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- the right to education in Article 13 of the International Covenant on Economic, Social and Cultural Rights. Article 13 recognises the right of everyone to education. Article 13 provides that vocational education is part of secondary education (Article 13(2)(b)), and secondary education must be available and accessible to all on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education (Article 13(2)(c)); and
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- the right of children to education in Articles 4, 6 and 28 of the United Nations Convention on the Rights of the Child. Article 28 encourages:
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- the development of different forms of secondary education, including general and vocational education;
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- making vocational education information and guidance available and accessible to all children; and
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- taking appropriate measures such as the introduction of free education and offering financial assistance in case of need.
23.64 The measure promotes the right of all people (including children) to education through the provision of financial assistance to assist employers retain apprentices and to, therefore, allow apprentices remain in an apprenticeship as part of their vocational education.
23.65 The measure is compatible with and promotes the right to education.
Right to work
23.66 The measure engages the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights. Article 6 recognises the right to work which includes the right of everyone to have the opportunity to gain their living by work which they freely choose or accept. Article 6(2) provides that the steps to be taken by States Parties to achieve the full realisation of this right include providing technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedom to the individual.
23.67 The measure promotes the right to work by financially supporting employers to retain, re-engage and support Australian Apprentices in the workplace while the Australian Apprentice undertakes vocational education and training, which is freely chosen by the Australian Apprentice, meets workplace needs, and improves the Australian Apprentice's employment opportunities and outcomes. This contributes to the development of a highly skilled and relevant Australian workforce that supports economic, social and cultural development.
23.68 The measure is compatible with and promotes the right to work.
Aviation Support Program
23.69 The measure promotes the following rights:
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- the right to security of person in Article 3 of the Universal Declaration of Human Rights.
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- Article 3 of the Universal Declaration of Human Rights recognises 'everyone has the right to life, liberty and the security of person.'
23.70 The measure includes funding that will enable aviation sector passengers and staff to travel and work in a secure environment.
Conclusion
23.71 Table item 408 is compatible with human rights because it promotes:
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- the right to education under the International Covenant on Economic, Social and Cultural Rights; and
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- the right to work under the International Covenant on Economic, Social and Cultural Rights.
23.72 Table item 409 is compatible with human rights because it promotes the right to security of person under Article 3 of the Universal Declaration of Human Rights.
Schedule 8 - Providing flexibility in the Corporations Act
23.73 Schedule 8 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.74 Schedule 8 to this Bill amends the Corporations Act to establish a temporary mechanism to provide short-term regulatory relief to classes of persons that, due to the Coronavirus, are unable to meet their obligations under the Corporations Act or the Corporations Regulations.
23.75 The new mechanism enables the Treasurer to determine that, due to the Coronavirus pandemic, specified classes of persons are exempt from specified obligations under the Corporations Act or the Corporations Regulations. The Treasurer may also determine that the specified obligations are modified to enable specified classes of persons to comply with their legal obligations during the Coronavirus crisis.
23.76 This mechanism is temporary and will be operative for six months only. The Treasurer's power to exempt specified classes of persons or modify the operation of specified provisions is temporary and is available for a period of up to six months. Relief would only be given where a class of companies is unable to comply with their obligations- because it would not be reasonable to expect them to comply with the provisions or because the exemption or modification is otherwise necessary or appropriate to facilitate the continuation of business or mitigate economic impacts due to the Coronavirus pandemic.
Human rights implications
23.77 Schedule 8 to this Bill is compatible with human rights and does not limit any of the applicable human rights and freedoms, as it implements an instrument making power that provides relief from obligations under the Corporations Act and the Corporations Regulations.
23.78 Schedule 8 to this Bill provides relief from requirements under the corporations legislation that would otherwise apply, thereby facilitating the continuation of business during the Coronavirus health crisis and mitigating its economic impact.
23.79 Each instrument made under the power provided for in Schedule 8 will be disallowable and will include a human rights compatibility statement assessing the impact of the instrument on human rights and freedoms.
Conclusion
23.80 Schedule 8 to this Bill is compatible with human rights as it does not limit any of the applicable human rights and freedoms.
Schedule 9 - Child Care
23.81 Schedule 9 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.82 Schedule 9 to this Bill amends the Family Assistance Act and Family Assistance Administration Act to provide the Government with limited flexibility to manage the impact of the Coronavirus, as well as future disasters, on families and on business continuity for child care services.
23.83 The amendments allocate extra allowable absence days, in addition to the current 42 days, for an event or circumstance specified in the Minister's rules. The allocation of extra allowable absence days is intended to help offset absence days taken as a result of the impact of the Coronavirus. This will help ensure continued subsidised fee relief for families with children enrolled in approved child care.
23.84 The amendments also allow the Minister's rules to prescribe where a service does not need to receive a certificate issued by a medical practitioner for an additional absence caused by an illness either to:
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- the child;
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- the individual;
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- the partner of the individual; or
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- an individual with whom the child lives.
23.85 Finally, the amendments waive the current obligation of services duty to enforce payment of gap fees for a particular event or circumstance and the period specified in the Minister's rules. This will enable services to provide fee relief to families, for example, in the circumstance where a service is forced to close on and for the period of public health advice. In this situation, services cannot charge more than the hourly session fee that was charged immediately before the period specified in the Minister's rules.
Human rights implications
The rights of parents and children
23.86 Article 3 of the Convention on the Rights of the Child recognises that in all actions concerning children, the best interests of the child shall be a primary consideration. Article 19 of the Convention requires that appropriate measures are taken to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.
23.87 Early childhood education and child care play a vital role in the development of Australian children. Their preparation for school and access to this care is also one of the most effective early intervention strategies to break the cycle of poverty. This Schedule supports families to access quality child care.
23.88 Schedule 9 to this Bill supports this objective by providing the Government with limited flexibility to manage the impact of the Coronavirus, as well as future disasters, on families and on business continuity for child care services.
23.89 The measures in Schedule 9 to this Bill continue to advance this right by:
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- permitting extra allowable absence days for an event or circumstance specified in the Minister's rules;
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- permitting a Minister's rules to prescribe circumstances in which a service does not need to receive a certificate issued by a medical practitioner for an absence caused by an illness; and
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- permitting waiver of an approved provider's current obligation in section 201B to 'take all reasonable steps' to ensure payment of the gap fee for a particular event or circumstance and the period specified in the Minister's rules; and requiring approved providers not to charge higher fees than the hourly session fee that was charged immediately before the period specified in the Minister's rules.
Right to adequate standard of living
23.90 Article 27 of the Convention on the Rights of the Child requires that State Parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. This Schedule advances this right through amendments that help ensure children have access to an adequate amount of child care to aid socialisation and development. For example, the amendments relating to increasing allowable absence days promote this right by reducing barriers to children accessing early childhood education and child care, such as exhausting allowable absences as a result of the Coronavirus, so families do not have to pay fees without subsidy.
23.91 This Schedule restricts services from charging higher fees than the hourly session fee that was charged immediately before the period specified in the Minister's rules.
Right to social security
23.92 Article 9 of the International Covenant on Economic, Social and Cultural Rights recognises the right of everyone to social security.
23.93 This Schedule promotes this right by:
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- extending social security entitlements in the form of extra allowable absence days in circumstances prescribed by the Minister's rules; and
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- addressing the risk that an inability to see a medical practitioner to obtain a medical certificate does not prevent an individual from having access to additional absence days.
Conclusion
Schedule 9 to this Bill is compatible with human rights for the reasons above.
Schedule 10 - Superannuation drawdowns
23.94 Schedule 10 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.95 Schedule 10 to this Bill amends the SIS Regulations and the RSA Regulations to give effect to the Government's announced measure to reduce the minimum payment amounts for account based pensions, allocated pensions and market linked pensions (and for the equivalent annuity product) by half for the 2019-20 and 2020-21 financial years.
23.96 The Regulations require that a minimum payment be made from a pension or annuity at least annually. Minimum payments are determined by age and the value of the account balance at 1 July of each year.
23.97 Minimum annual payment rules are designed so that retirees draw down on their superannuation capital over their retirement. This rule recognises that superannuation is a retirement savings vehicle, supported by substantial tax concessions, designed to provide income in retirement.
23.98 The measure is designed to assist pension and annuity account balances to recover from capital losses associated with economic shock from the Coronavirus health crisis by allowing retirees to adjust their drawdowns to their depreciated asset holdings and avoid being forced to sell assets in loss positions to fund income stream payments.
Human rights implications
23.99 Schedule 10 to this Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.100 Schedule 10 to this Bill is compatible with human rights as it does not raise any human rights issues.
Schedule 11 - Additional support for income support recipients
23.101 Schedule 11 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.102 Schedule 11 to this Bill creates a time-limited Coronavirus Supplement of $550 per fortnight for recipients of JobSeeker Payment; Youth Allowance (other) jobseeker; Sickness Allowance; Widow Allowance; Parenting Payment Single; Parenting Payment Partnered; Special Benefit; and Farm Household Allowance.
23.103 Schedule 11 to this Bill also expands eligibility for Jobseeker Payment and Youth Allowance (other) to provide payment access to a wider group of people. This includes temporarily waiving the asset test and certain waiting periods, including the Newly Arrived Resident's Waiting Period, in recognition of the need to provide financial support to people as quickly as possible. The temporary waiver of the Newly Arrived Resident's Waiting Period also applies to Parenting Payment Single, Parenting Payment Partnered and Special Benefit.
23.104 Schedule 11 to this Bill also creates a new category of Crisis Payment that enables people claiming an income support payment, such as JobSeeker Payment, to be paid a Crisis Payment where they are required to remain at home during a period of isolation due to the Coronavirus. The Crisis Payment is a one off payment equivalent to one week of the person's maximum basic rate of income support (excluding supplementary payments such as Commonwealth Rent Assistance).
Human rights implications
23.105 Schedule 11 to this Bill engages the following human rights:
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- The right of everyone to social security in article 9, and the right of everyone to an adequate standard of living for an individual and their family, including adequate food, clothing and housing, and the continuous improvement of living conditions in Article 11 of the International Covenant on Economic, Social and Cultural Rights; and
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- The rights of the child in article 26 of the Convention on the Rights of the Child.
23.106 Articles 9 and 11 are promoted by providing further payment to assist in achieving an adequate standard of living. This is achieved by creating a new category of supplementary payment where there is a national health emergency. The pursuit of this objective also promotes human rights by supporting the Convention on the Rights of Persons with Disabilities.
23.107 Schedule 11 to this Bill promotes article 26 by enhancing the rights of the child to social security, as the payment is made to recipients with children. The payments targeted at vulnerable groups who receive Government assistance and has a flow on effect to the children of recipients by increasing the support for families.
Conclusion
23.108 Schedule 11 to this Bill is compatible with human rights because it promotes the protection of human rights for some of the most vulnerable groups in society.
Schedule 12 - Temporary relief for individuals and businesses in financial distress
23.109 Schedule 12 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.110 Schedule 12 to this Bill amends the Bankruptcy Act 1966 to temporarily increase the minimum amount of debt required to be owed before a creditor can initiate involuntary bankruptcy proceedings against a debtor from $5,000 to $20,000. The amendments:
- •
- temporarily provide debtors more time to respond to a bankruptcy notice - the period is extended from 21 days to six months; and
- •
- temporarily extends the timeframe in which a debtor is protected from enforcement action by a creditor following presentation of a declaration of intention to present a debtor's petition - the period is extended from 21 days to three months.
23.111 Schedule 12 to this Bill amends the Corporations Act to increase the statutory minimum for a creditor to issue a statutory demand to a debtor from $2,000 to $20,000. This raises the thresholds for creditor demands that can push businesses into insolvency. The amendments also temporarily provide debtors more time to respond to a statutory demand - the period is extended from 21 days to six months.
23.112 Schedule 12 to this Bill also amends the Corporations Act to provide temporary relief for directors from their personal duty to prevent insolvent trading. This is achieved by introducing a new temporary safe harbour from the duty to prevent insolvent trading.
Human rights implications
23.113 Schedule 12 to this Bill does not limit any of the human rights and freedoms, but in a limited way engages Article 14(2) of the International Covenant on Civil and Political Rights. Article 14(2) recognises that all persons shall be presumed innocent until proven guilty according to the law.
23.114 Article 14(2) is engaged because Part 3 of Schedule 12 to this Bill introduces a new temporary safe harbour from the directors' duty to prevent insolvent trading by a corporation under the Corporations Act. Directors and holding companies (with respect to insolvent trading by a subsidiary) wishing to rely on the temporary safe harbour in a proceeding in which unlawful insolvent trading is alleged bear an evidential burden in relation to that matter.
23.115 These amendments are consistent with Article 14(2) because evidential burden is defined to mean the burden of adducing or pointing to evidence that suggests a reasonable possibility that some matter exists or does not exist.
23.116 In particular, a director wishing to rely on the temporary safe harbour must point to or adduce some evidence that suggests a reasonable possibility that:
- •
- the debt incurred was in the ordinary course of the company's business;
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- the debt was incurred during the six month period or longer period prescribed, beginning on the day the amendments commence; and
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- no administrator or liquidator was appointed, within the six month period, before the debt was incurred.
23.117 A holding company wishing to rely on the temporary safe harbour must point to or adduce some evidence to suggest a reasonable possibility that:
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- the corporation took reasonable steps to ensure that the temporary safe harbour applies in relation to the director and the debt incurred; and
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- the temporary safe harbour provision does so apply.
23.118 Consistent with the Guide to Framing Commonwealth Offences , it is appropriate for the evidential burden to fall on the director or holding company seeking to rely on the temporary safe harbour because:
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- matters such as whether the debt incurred was in the ordinary course of the company's business, whether and when the debt was incurred or a liquidator or administrator was appointed, and whether the corporation takes reasonable steps to ensure that the temporary safe harbour provision applies are peculiarly within the knowledge of the director or holding company; and
- •
- it is significantly more difficult and costly for the opposing party to disprove the fact that:
- -
- for a company director - that the debt incurred was within the ordinary course of the company's business, the period in which the debt was incurred and whether an administrator or liquidator was appointed before the debt was incurred; and
- -
- for a holding company - that the directors of the subsidiary had the benefit of the temporary safe harbour and the holding company took reasonable steps to ensure the temporary safe harbour applied to the director and the debt.
Conclusion
23.119 Schedule 12 to this Bill is compatible with human rights as it does not limit any of the applicable human rights and freedoms.
Schedule 13 - Early release of superannuation
23.120 Schedule 13 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.121 Schedule 13 to this Bill amends the SIS Regulations and RSA Regulations to allow individuals affected by the adverse economic effects of the Coronavirus health crisis to have up to $10,000 released from their superannuation or retirement savings account on compassionate grounds.
23.122 Each person is permitted to have up to two releases - one for an application made during the 2019-20 financial year and another for an application made during the 2020-21 financial year.
Human rights implications
23.123 Schedule 13 to this Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.124 Schedule 13 to this Bill is compatible with human rights as it does not raise any human rights issues.
Schedule 14 - Medicare levy and medicare levy surcharge low-income thresholds
23.125 Schedule 14 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.126 Schedule 14 to this Bill amends the Medicare Levy Act 1986 and the A New Tax System (Medicare Levy Surcharge - Fringe Benefits) Act 1999 to:
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- increase the Medicare levy low-income thresholds for individuals and families (along with the dependent child-student component of the family threshold) in line with movements in the CPI;
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- increase the Medicare levy low-income thresholds for individuals and families eligible for the Seniors and Pensioners Tax Offset (along with the dependent child-student component of the family threshold), in line with movements in the CPI; and
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- increase the Medicare levy surcharge low-income threshold in line with movements in the CPI.
23.127 This will ensure that low-income individuals, families, seniors and pensioners who were exempt from the Medicare levy in the 2018-19 income year continue to be exempt in the 2019-20 income year if their income has increased in line with, or less than, movements in the CPI.
Human rights implications
23.128 Schedule 14 to this Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.129 Schedule 14 to this Bill is compatible with human rights as it does not raise any human rights issues.
Schedule 15 - Delaying the next intergenerational report until mid-2021
23.130 Schedule 15 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.131 Schedule 15 to this Bill amends the Charter of Budget Honesty to delay the next intergenerational report from 2020 to mid-2021 to ensure there is adequate time to produce long term projections that are based on robust budget estimates.
Human rights implications
23.132 Schedule 15 to this Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.133 Schedule 15 to this Bill is compatible with human rights as it does not raise any human rights issues.
Schedule 16 - Deferral of sunsetting
23.134 Schedule 16 to this Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.135 Schedule 16 to this Bill allows the relevant Minister for an Act or legislative instrument that is scheduled to sunset on or before 15 October 2020 to determine a new day on which the legislation sunsets. This new date must be no longer than six months after the original sunset date.
Human rights implications
23.136 This Schedule does not engage any of the applicable rights or freedoms.
Conclusion
23.137 Schedule 16 to this Bill is compatible with human rights as it does not raise any human rights issues.
Guarantee of Lending to Small and Medium Enterprises (Coronavirus Economic Response Package) Bill 2020
23.138 The SME Lending Guarantee Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.139 The Australian Government announced that it would enter into agreements with financial institutions to guarantee certain loans made to SMEs.
23.140 The purpose of these guarantees is to ensure that credit continues to flow to SMEs, and that SMEs can meet their immediate financing needs during the uncertain economic conditions caused by the Coronavirus.
23.141 The SME Lending Guarantee Bill provides that the Minister may, on behalf of the Commonwealth, grant a guarantee to a financial institution in connection with loans made, or to be made, if granting the guarantee is likely to assist in dealing with the economic impacts of Coronavirus.
Human rights implications
23.142 The SME Lending Guarantee Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.143 The SME Lending Guarantee Bill is compatible with human rights as it does not raise any human rights issues.
Australian Business Growth Fund (Coronavirus Economic Response Package) Bill 2020
23.144 The Business Growth Fund Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.145 The Business Growth Fund Bill authorises investment by the Commonwealth in the Australian Business Growth Fund, and appropriates $100 million for that purpose.
23.146 Part 1 of the Business Growth Fund Bill sets out:
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- when the Business Growth Fund Bill commences;
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- the objects of the Business Growth Fund Bill;
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- definitions of key terms used in the Business Growth Fund Bill; and
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- the application of the Business Growth Fund Bill.
23.147 Part 2 of the Business Growth Fund Bill:
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- authorises the Minister to invest in the Australian Business Growth Fund; and
- •
- places limitations on the exercise of the Minister's investment powers.
23.148 Part 3 of the Business Growth Fund Bill:
- •
- provides for a standing appropriation of $100 million for the purposes of the powers set out in Part 2;
- •
- allows the Minister to delegate powers, functions and duties under the Business Growth Fund Bill;
- •
- requires annual reporting on the investment;
- •
- requires a review of the operation of the Business Growth Fund Bill; and
- •
- includes a rule-making power for the Minister.
Human rights implications
23.149 The Business Growth Fund Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.150 The Business Growth Fund Bill is compatible with human rights as it does not raise any human rights issues.
Assistance for Severely Affected Regions (Special Appropriation) (Coronavirus Economic Response Package) Bill 2020
23.151 The Assistance for Severely Affected Regions Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.152 The Assistance for Severely Affected Regions Bill gives effect to the Government's commitment to set aside $1 billion to support regions, communities and industry sectors most severely affected by the Coronavirus. The funds will be available to assist during the next few months and over the year ahead to ensure these communities are well placed to recover from the economic effects of the Coronavirus.
Human rights implications
23.153 The Assistance for Severely Affected Regions Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.154 The Assistance for Severely Affected Regions Bill is compatible with human rights as it does not raise any human rights issues.
Structured Finance Support (Coronavirus Economic Response Package) Bill 2020
23.155 The Structured Finance Support Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.156 The Structured Finance Support Bill will establish the Structured Finance Support (Coronavirus Economic Response) Fund, initially consisting of $15 billion. The Fund will enable the Government to ensure continued access to funding markets impacted by the economic effects of the Coronavirus, and to promote competition in consumer and business lending markets. In particular, this will ensure smaller lenders can maintain access to funding, by the Government making targeted investments in structured finance markets.
23.157 Part 1 of the Structured Finance Support Bill sets out the objects of the Structured Finance Support Bill, arrangements for commencement, application to the Crown, key definitions, its extension to external territories and extra-territorial application.
23.158 Part 2 of the Structured Finance Support Bill:
- •
- establishes the Structured Finance Support (Coronavirus Economic Response) Fund and the Structured Finance Support (Coronavirus Economic Response) Fund Special Account;
- •
- provides for the types of investments that can be made by the Fund; and
- •
- credits $15 billion into the Account on the day after the Structured Finance Support Bill receives Royal Assent, and enables further amounts to be credited to the Account.
23.159 Part 3 of the Structured Finance Support Bill sets out the constitutional limits of the investments of the Fund, provides for the Minister to delegate his powers and provides for regular reporting in relation to the Fund.
Human rights implications
23.160 The Structured Finance Support Bill does not engage any of the applicable rights or freedoms.
Conclusion
23.161 The Structured Finance Support Bill is compatible with human rights as it does not raise any human rights issues.
Appropriation (Coronavirus Economic Response Package) Bill (No. 1) 2019-2020
23.162 The Appropriation Bill No. 1 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.163 The Appropriation Bill No. 1 seeks to appropriate money for services that are not considered to be the ordinary annual services of the Government.
23.164 Accordingly, the Appropriation Bill No. 1 performs an important constitutional function, by authorising the withdrawal of money from the Consolidated Revenue Fund for the broad purposes identified in the Appropriation Bill No. 1.
23.165 However, as the High Court has emphasised, beyond this, the Appropriation Acts for the ordinary annual services of Government do not confer authority to engage in executive action. In particular, they do not confer legal authority to spend.
23.166 Given that the legal effect of Appropriation Bills is limited in this way, the Appropriation Bill No. 1 is not seen as engaging, or otherwise affecting, the rights or freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act 2011.
23.167 Detailed information on the relevant appropriations, however, is contained in the portfolio statements.
Human rights implications
23.168 The Appropriation Bill No. 1 does not engage any of the applicable rights or freedoms.
Conclusion
23.169 The Appropriation Bill No. 1 is compatible with human rights as it does not raise any human rights issues.
Appropriation (Coronavirus Economic Response Package) Bill (No. 2) 2019-2020
23.170 The Appropriation Bill No. 2 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
23.171 The Appropriation Bill No. 2 seeks to appropriate money for services that are not considered to be the ordinary annual services of the Government.
23.172 Accordingly, the Appropriation Bill No. 2 performs an important constitutional function, by authorising the withdrawal of money from the Consolidated Revenue Fund for the broad purposes identified in the Appropriation Bill No. 2.
23.173 However, as the High Court has emphasised, beyond this, the Appropriation Acts do not ordinarily confer authority to engage in executive action. In particular, they do not ordinarily confer legal authority to spend. To the extent that any item of the Appropriation Bill No. 2 might be read as purporting to confer such authority, the Government does not rely on the item to provide it.
23.174 Given that the legal effect of Appropriation Bills is limited in this way, the Appropriation Bill No. 2 is not seen as engaging, or otherwise affecting, the rights or freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act 2011.
23.175 Detailed information on the relevant appropriations, however, is contained in the portfolio statements.
Human rights implications
23.176 The Appropriation Bill No. 2 does not engage any of the applicable rights or freedoms.
Conclusion
23.177 The Appropriation Bill No. 2 is compatible with human rights as it does not raise any human rights issues.