Explanatory Memorandum
(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The 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 of the Bill
The Bill includes a number of beneficial measures that are primarily directed at supporting people who have been impacted by the economic consequences of COVID-19.
The Bill provides additional assistance through two additional Economic Support Payments of $250 to around five million payment recipients and cardholders in the lead up to Christmas and in the new year as part of the Australian Government's response to COVID-19.
From 1 January 2021, amendments are also made so that the six-month period between 25 March 2020 and 24 September 2020 will automatically be recognised as contributing to existing workforce independence criteria for Youth Allowance. This measure supports young people whose path toward demonstrating independence through work has been disrupted by the economic impacts of COVID-19.
The Bill also makes creates temporary incentives in the income support system to encourage young Australians to undertake seasonal agricultural work to help address the expected critical workforce shortages across the industry for the upcoming harvest season. The new criteria will recognise a person who earns at least $15,000 through employment in the agricultural industry between 30 November 2020 and 31 December 2021 as independent for the purposes of the Youth Allowance student payment or ABSTUDY, subject to their combined parental income being under $160,000 annually, plus $10,000 for each additional child.
The Bill will also introduce a revised Paid Parental Leave work test period for a limited time to enable people to access parental leave pay and dad and partner pay who do not meet the current work test provisions because their employment has been affected by COVID-19. This would enable most individuals with a genuine work history prior to the pandemic to qualify for payments under the PPL scheme.
The Bill also makes amendments to address inconsistencies in payments available to families affected by stillbirth and infant death in respect of payments for newborn children, by increasing the maximum amount that eligible families are able to access after a stillbirth or a child's death shortly after birth, up to the child's first birthday. These amendments also remove discrepancies within the payments system in respect of multiple instances of stillbirth or infant death within the same family.
The Bill makes technical amendments to child support law to allow for alternative figures to be used in place of the Male Total Average Weekly Earnings (MTAWE) trend figure and Average Weekly Earnings (AWE) trend figure for the purposes of child support assessment calculations. From May 2020, the Australian Bureau of Statistics has temporarily suspended publication of trend estimates for all Average Weekly Earnings series due to the impact of COVID-19 on the labour market. Child support law does not currently permit an alternative to the MTAWE or AWE trend figures to be used.
Human rights implications
Schedule 1: Additional Economic Support Payments
This schedule of the Bill engages the following rights:
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- Right to an adequate standard of living, including food, water and housing - Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD); and
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- Right to social security - Article 9 of the ICESCR and Article 26 of the CRC.
Right to an adequate standard of living, including food, water and housing
Article 11(1) of the ICESCR recognises the right to an adequate standard of living. Schedule 1 will engage and promote this right by providing further payments to assist in achieving an adequate standard of living, especially in recognition of the financial impacts of COVID-19. Further, Article 28 CRPD recognises the rights of persons with disability to an adequate standard of living, this Bill promotes this right as it will provide additional payments to individuals with disability who receive the disability support pension.
Right to social security
Article 9 of the ICESCR recognises the right of everyone to social security. Schedule 1 engages this right by providing additional support through further payments to individuals receiving certain payments or holding certain concession cards. Further, Article 26 of the CRC recognises that every child has the right to benefit from social security. These additional payments promotes Article 26 by enhancing the rights of the child to social security, as the payments will be made to recipient of Family Assistance.
Schedule 2: Youth allowance independence and paid work concession
This schedule of the Bill engages the following rights:
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- Right to education - Article 13 of the ICESCR;
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- Right to an adequate standard of living, including food, water and housing - Article 11(1) of the ICESCR; and
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- Right to social security - Article 9 of the ICESCR.
Right to education
Article 13 of the ICESCR recognises the right of everyone to education and that with a view to achieving full realisation to this right that higher education should be made equally accessible to all. Schedule 2 engages and promotes this right as the arrangements are targeted to a cohort who may already have been working towards independence in order to receive financial assistance to support study, and the changes will prevent young people delaying the commencement or re-commencement of study in order to work to meet the independence criteria.
Right to an adequate standard of living, including food, water and housing
Article 11(1) of the ICESCR recognises the right to an adequate standard of living. Schedule 2 will engage and promote this right by providing more individuals access to payments that will assist in achieving an adequate standard of living, especially in recognition of the impacts of COVID-19.
Right to social security
Article 9 of the ICESCR recognises the right of everyone to social security. Schedule 2 engages and promotes this right by temporarily providing greater access to payments, acknowledging that COVID-19 may have impacted on individuals ability to meet requirements otherwise.
Schedule 3: Youth allowance independence and agricultural work
This schedule of the Bill engages the following rights:
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- Right to education - Article 13 of the ICESCR; and
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- Right to social security - Article 9 of the ICESCR
Right to education
Article 13 of the ICESCR recognises the right of everyone to education and that with a view to achieving full realisation to this right that higher education should be made equally accessible to all. Schedule 3 engages and promotes this right as the arrangements assist individuals to be considered independent, which will enable individuals to receive financial assistance to support their study.
Right to social security
Article 9 of the ICESCR recognises the right of everyone to social security. Schedule 3 provides an incentive that is intended to address the shortage of workers for the upcoming harvest season. The agricultural sector generally relies on migrant seasonal workers to undertake harvesting work and this workforce is not available because of the strict restrictions to travel for migrant workers that are in place because of COVID-19. This schedule acknowledges a need and offers incentive, by relaxing eligibility requirements for Youth Allowance student payment and ABSTUDY, for this need to be filled. Schedule 3 engages and promotes this right by providing individuals, who would otherwise not be eligible, access to payments.
Schedule 4: Paid Parental Leave work test period
This schedule of the Bill engages the following rights:
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- Right to maternity leave - Article 10(2) of the ICESCR;
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- Right to social security - Article 9 of the ICESCR and Article 26 of the CRC; and
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- Right to health - Article 12 of the ICESCR.
Right to maternity leave
Schedule 4 engages the right to maternity leave under Article 10(2) of the ICESCR, that states that 'special protection should be accorded to mothers during a reasonable period before and after childbirth, during such period working mothers should be accorded paid leave with adequate social security benefits'. The amendments made by this Bill recognise that people may not meet the current work test provisions because their employment has been affected by circumstances relating to COVID-19.
Right to Social Security
Article 9 of the ICESCR recognises the right of everyone to social security, and Article 26 of the CRC recognises the right of every child to benefit from social security. Schedule 4 engages the right to Social Security by temporarily broadening the eligibility criteria for Paid Parental Leave.
Right to health
Article 12 of the ICESCR recognises the right to everyone to the enjoyment of the highest attainable standard of physical and mental health. Article 12 provides that the steps to be taken to achieve full realisation of this right, include 'provision for the reduction of the stillbirth rate or infant mortality and for healthy development of the child'. These amendments engage this right, as more individuals will be eligible for Paid Parental Leave, and therefore able to be away from the workforce to spend time with their child and support the child's development.
Schedule 5: Stillborn baby and infant death payment
This schedule of the Bill engages the following rights:
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- Right to maternity leave - Article 10(2) of the ICESCR;
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- Right to health - Article 12 of the ICESCR; and
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- Right to social security - Article 9 of the ICESCR.
Right to maternity leave
Schedule 5 engages the right to maternity leave under Article 10(2) of the ICESCR, that states that 'special protection should be accorded to mothers during a reasonable period before and after childbirth, during such period working mothers should be accorded paid leave with adequate social security benefits'. The amendments made by this Bill engage this right by increasing payments available to families affected by stillbirth and infant death.
Right to health
Article 12 of the ICESCR recognises the right to everyone to the enjoyment of the highest attainable standard of physical and mental health. Schedule 5 engages this right by providing financial assistance to assist with additional costs at this difficult time.
Right to social security
Article 9 of the ICESCR recognises the right of everyone to social security. Schedule 5 engages and promotes this right by providing consistent and additional assistance to families in recognition of the costs associated with a stillborn child or a child's death shortly after birth.
Schedule 6: Child Support
This schedule of the Bill engages the rights:
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- Right to respect for family - Article 23(4) of the ICCPR, and
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- Right of every child to an adequate standard of living - Article 27 of the CRC.
Right to respect for family
Schedule 6 engages Article 23(4) of the ICCPR, which states that appropriate steps should be taken to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. Further the article states that 'in the case of dissolution [of marriage], provision shall be made for the necessary protection of any children'. The Child Support Scheme ensures that both parents take financial responsibility for their children. The Child Support formula takes into consideration the costs of raising a child and each parents capacity to contribute. These technical amendments engage this right, as it will provide a mechanism for child support assessments to continue to be determined while the publication of trend estimates for all Average Weekly Earnings series are suspended.
Right of every child to an adequate standard of living
Schedule 6 engages Article 27 of the CRC, which states at Article 27(1) that every child has the right to a "standard of living adequate for the child's physical, mental, spiritual, moral and social development". Further, Article 27(2) states that "The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the condition of living necessary for the child's development". In relation to parents who are separated, whether or not they have ever been married or partnered, Article 27(4) is of particular relevance, and it states that "States parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad." By providing a mechanism for child support assessments to continue, the amendments allow for Australia to meet its obligations under the CRC.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human rights.