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
SOCIAL SERVICES AND OTHER LEGISLATION AMENDMENT (STUDENT ASSISTANCE AND OTHER MEASURES) BILL 2021
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 of the Bill
The Student Assistance Act 1973 (the Student Assistance Act) provides a basis for the payment of certain benefits to certain students under the ABSTUDY and the Assistance for Isolated Children (AIC) schemes. These schemes provide benefits for Indigenous students and certain non-Indigenous students, who are required to live away from home to undertake studies or who undertake education at a distance.
The ABSTUDY and AIC schemes are administratively-based programs. This Bill provides a legislative framework for certain administrative arrangements to assist with the operation of these schemes as well as aligning these arrangements with similar provisions in the social security law.
This Bill will:
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- introduce a new regime to empower the Secretary to request, but not compel, a person to provide their tax file number (TFN);
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- clarify that the collection, use and disclosure of personal information or protected information relates not only to the administration of the ABSTUDY scheme, but also to AIC scheme.
The Bill also makes technical amendments to the Social Security Act 1991 (the Social Security Act) to confirm that that the definition of 'social security law' includes legislative instruments. Legislative instruments are an important part of the legislative scheme for social security.
The Social Security Act defines the term 'social security law'. It includes that Act, the Social Security (Administration) Act 1999 (the Social Security Administration Act) and the Social Security (International Agreements) Act 1999, which are the main parts of the social security legislative scheme.
The Bill confirms that a legislative instrument made under an Act that is part of the social security law will automatically be itself part of the social security law.
The concept of the 'social security law' is used in various Acts. For example, the protected information provisions in Division 3 of Part 5 of the Social Security Administration Act allow collection, use and disclosure of protected information 'for the purposes of the social security law' and the power of delegation in section 234 of that Act applies to powers 'under the social security law'.
Human rights implications
This Bill engages the following human rights.
Right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises 'the right of everyone to social security'.
The right to social security requires that a system be established under domestic law and that public authorities must take responsibility for the effective administration of the system. The United Nations Committee of Economic, Social and Cultural Rights has stated that implementing this right requires a country, within its maximum available resources, to provide 'a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic form of education'.
Article 4 of ICESCR provides that countries may limit the rights to social security in a way 'determined by law only in so far as this may be compatible with the nature of the rights' contained within the ICESCR 'and solely for the purpose of promoting the general welfare in a democratic society'. Such a limitation must be proportionate to the objective to be achieved.
Both the ABSTUDY and AIC schemes increase access to support for students through equity measures that provide financial assistance to help meet the costs associated with study. These schemes through their eligibility criteria, ensure that support is provided to recipients that are most in need of support. To qualify for either payment under the schemes, a student must meet specified eligibility criteria.
The technical amendments to the definition of 'social security law' are neutral from a human rights perspective. For example, the amendments confirm that protected information can be used for the purposes of a legislative instrument under the Social Security Act. That is not inherently negative or positive for benefit claimants and recipients. The information could be used to assist in processing and paying a benefit claim, or to take compliance action. The amendments themselves therefore have no inherent impact on human rights.
Right to education
Article 13 of the ICESCR recognises the right of everyone to education. It provides that 'education shall be directed to the full development of the human personality and the sense of its dignity and shall strengthen the respect for human rights and fundamental freedoms', and 'that higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means'.
The ABSTUDY and AIC schemes are targeted at providing assistance to people who are Indigenous or disadvantaged due to being geographically isolated or by having special educational needs.
Both schemes engage the right to education as they provide financial assistance to students to assist with meeting educational expenses.
Right to privacy
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) states that 'no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation' and 'everyone has the right to the protection of the law against such interference or attacks'.
For the avoidance of doubt, the existing confidentiality provisions in the Student Assistance Act ensure that the personal information of recipients is protected and operate subject to offences for the unauthorised access and use of protected information.
Data matching using TFNs minimises the risk of ABSTUDY and AIC recipients from receiving the incorrect payment and therefore requiring them to repay debts to the Commonwealth. The limits placed on recipient's or their parent's right to privacy by TFN sharing are justifiable as reasonable, necessary and proportionate because it provides the Secretary of the Department of Socail Services with a tool to more accurately ensure the correct payment is being made. As such, TFN sharing will enable the Secretary to undertake compliance activities with improved targeting. The proposed arrangements align with the current treatment of TFNs under the Social Security Act.
Conclusion
The Bill is compatible with human rights because the amendments it makes promote access to social security and support the right to education. To the extent a human rights obligation is engaged or limited, the impact is for a legitimate objective and is reasonable, necessary and proportionate as outlined above.