House of Representatives

Explanatory Memorandum

Circulated by authority of the Minister for Employment and Workplace Relations, the Hon Tony Burke MP

GLOSSARY

In this explanatory memorandum:

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accountable authority has the same meaning as in subsection 12(2) of the PGPA Act.

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ADJR Act means the Administrative Decisions (Judicial Review) Act 1977.

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Bill means the Social Security and Other Legislation Amendment (Miscellaneous Measures) Bill 2023.

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Chapter 2D means Chapter 2D of the Social Security Act.

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climate change treaties means the UNFCCC, the Kyoto Protocol and the Paris Agreement.

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Commonwealth Grants Rules and Guidelines means the provision about grants made by the Finance Minister under section 105C of the PGPA Act.

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Commonwealth Procurement Rules means the provision about procurement made by the Finance Minister under section 105B(1) of the PGPA Act.

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Employment Department has the same meaning as in subsection 23(1) of the Social Security Act.

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Employment Secretary has the same meaning as in subsection 23(1) of the Social Security Act.

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FFSP Act means the Financial Framework (Supplementary Powers) Act 1997.

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FFSP Regulations means the Financial Framework (Supplementary Powers) Regulations 1997.

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GPJR Act means the Government Procurement (Judicial Review) Act 2018.

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Indigenous Education (Targeted Assistance) Act means the Indigenous Education (Targeted Assistance) Act 2000.

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Kyoto Protocol means the Kyoto Protocol to the United Nations Framework Convention on Climate Change done at Kyoto on 11 December 1997 ([2008] ATS 2), as amended and in force for Australia from time to time.

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Paris Agreement means the Paris Agreement done at Paris on 12 December 2015 ([2016] ATS 24), as amended and in force for Australia from time to time.

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personal information has the same meaning as in section 6 of the Privacy Act.

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protected information has the same meaning as in subsection 23(1) of the Social Security Act.

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PGPA Act means the Public Governance, Performance and Accountability Act 2013.

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Privacy Act means the Privacy Act 1988.

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Social Security Act means the Social Security Act 1991.

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Social Security Administration Act means the Social Security (Administration) Act 1999.

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social security law has the same meaning as in subsection 23(17) of the Social Security Act.

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social security payment has the same meaning as in subsection 23(1) of the Social Security Act.

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SPROM Act means the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022.

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UNFCCC means the United Nations Framework Convention on Climate Change done at New York on 9 May 1992 ([1994] ATS 2), as amended and in force for Australia from time to time.

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Veterans' Entitlements Act means the Veterans' Entitlements Act 1986.

OUTLINE

The SPROM Act amended the social security law to, among other things, insert Chapter 2D into the Social Security Act. Since its commencement on 2 April 2022, Chapter 2D has permitted the Employment Secretary to make, vary, or administer an arrangement or grant, in relation to programs which help people find and keep paid work or become self-employed, and which enable people to develop skills for the jobs of today and tomorrow (including through apprenticeships and training).

As explained in the explanatory memorandum for the SPROM Act's originating bill, Chapter 2D was intended to provide more streamlined legislative authority than that provided by section 32B of the FFSP Act where appropriate amendments to the FFSP Regulations have been made. Chapter 2D allows the Australian Government to address rapidly changing employment and skills needs without delays caused by the need to wait for an FFSP Regulation item to be made or amended.

The explanatory memorandum for the SPROM Act's originating bill noted that " all Chapter 2D does is provide statutory authority for expenditure ... All of the usual processes and requirements for the establishment and oversight of such programs will remain unchanged ". (As of June 2023, this explanatory memorandum was available at:
www.legislation.gov.au/Details/C2021B00066/Explanatory%20Memorandum/Text).

The Bill would amend the Social Security Act, the Veterans' Entitlements Act and the ADJR Act to ensure Chapter 2D operates consistently with this intention. The Bill would do this by:

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making clear the interaction between Chapter 2D and other provisions of the social security law. It would ensure that payments supported by Chapter 2D are treated in the same way as if they were instead supported by section 32 of the FFSP Act. The Bill would also, with a few limited exceptions, exclude the Social Security Administration Act from applying to Chapter 2D, as most provisions of that Act are irrelevant to Chapter 2D.

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making clear that Chapter 2D operates concurrently with the FFSP Act.

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streamlining the provisions so that there is greater certainty as to the programs supported by Chapter 2D and that the requirement to report on those programs is clear; and

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making some other minor technical amendments to ensure that the legislative authority Chapter 2D provides better engages with the Commonwealth's constitutional powers.

FINANCIAL IMPACT

There are no financial impacts associated with these amendments.

CONSULTATION

The Attorney-General's Department, the Department of Finance, the Department of Social Services, the Department of Veterans' Affairs and the National Indigenous Australians Agency have been consulted in the development of the Bill.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

Notes on Clauses

Clause 1 - Short title

1. This clause provides that the short title of the Bill, once enacted, is the Social Security and Other Legislation (Miscellaneous Measures) Act 2023.

Clause 2 - Commencement

2. The table in this clause sets out the commencement of the provisions in the Bill. Most provisions would commence on Royal Assent or the day after Royal Assent. However, provisions relating to a new notifiable instrument that would list programs which involve spending that derives legislative authority from section 1062A would commence seven days after Royal Assent to provide time for the Employment Secretary to make that notifiable instrument.

Clause 3 - Schedules

3. This clause provides that legislation that is specified in a Schedule to the Bill, once enacted, is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to that Act has effect according to its terms.

Schedule 1 - Amendments

Administrative Decisions (Judicial Review) Act 1977

Item 1 - After paragraph (e) of Schedule 1

4. This item would insert new paragraph (f) into Schedule 1 of the ADJR Act, which would effectively provide that decisions under Chapter 2D are a class of decisions to which the ADJR Act does not apply.

5. This amendment would ensure that decisions made in the exercise of the spending power in Chapter 2D are treated in the same way as if they were made in the exercise of the spending power in section 32B of the FFSP Act. Paragraph (he) in Schedule 1 to the AJDR Act excludes decisions under Part 2 of the FFSP Act, which contains section 32B, from review under the ADJR Act.

0. The Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 inserted paragraph (he) into Schedule 1 of the ADJR Act. The explanatory memorandum to that Act's originating bill (which, as of June 2023, was available at:
www.legislation.gov.au/Details/C2014B00153/Explanatory%20Memorandum/Text) stated that:

Commonwealth spending decisions that rely on the ... [power in section] 32B ... of the FFSP Act should not be reviewable under the ADJR Act because they are, in effect, a legislated form of the use of executive power. Up until June 2012, the Commonwealth operated on the assumption that decisions regarding spending were an exercise of executive power, and not subject to judicial review under the ADJR Act. The fact that the High Court in Williams v Commonwealth (2012) 248 CLR 156 ... required legislative authority for some Commonwealth spending does not lead to the conclusion that certain types of spending should be subject to review under the ADJR Act...

...it is important to note that Commonwealth spending decisions that rely on the power in section 32B ... will be subject to the requirements of the PGPA Act and associated rules. This legislative framework governs how the Commonwealth uses and manages public resources. Amongst other things the framework requires the accountable authority of each Commonwealth entity to ensure the proper use of public resources for which he or she is responsible. The rules under the PGPA Act will continue the spending frameworks currently established by the Commonwealth Procurement Rules and the [Commonwealth Grants Rules and Guidelines]. These rules not only ensure the proper use of Commonwealth resources, but also that there is appropriate transparency around decisions to make, vary or administer arrangements to spend. Further, the Auditor-General has the power to review Commonwealth spending decisions as part of his or her auditing responsibilities.

1. This justification remains current and is equally applicable to spending decisions made in reliance on the power in Chapter 2D. There is no reason to treat decisions under Chapter 2D differently to decisions under section 32B of the FFSP Act, and it was never the intention to do so. Further, since the introduction of the above-mentioned legislation, the GPJR Act has commenced. That Act enables suppliers and potential suppliers to challenge some procurement processes for alleged breaches of certain procurement rules. The GPJR Act can provide some additional avenues of redress (compensation or injunction) for dissatisfied providers or potential providers, depending on the circumstances.

Social Security Act 1991

Item 2 - After subsection 8(8)

6. Subsection 8(8) of the Social Security Act excludes certain amounts from counting as income for the purposes of that Act. Paragraph 8(8)(a) of the Social Security Act provides that a payment under that Act is not income for the purposes of that Act.

7. This item would insert new subsection 8(8AAAA) to the Social Security Act, which would provide that paragraph 8(8)(a) does not apply to a payment under an arrangement or grant referred to in section 1062A of the Social Security Act. This new subsection would not prevent another paragraph of subsection 8(8) from applying to such a payment. It is expected that the change would have no practical effect. Rather it would make clear that spending decisions that derive their legislative authority under Chapter 2D are to be treated in the same way as spending decisions deriving their legislative authority under section 32B of the FFSP Act for the purposes of assessing a person's income for social security purposes.

Item 3 - Subsection 23(1) (at the end of the definition of protected information )

8. This item would make clear that information about a person that was obtained by an officer under Chapter 2D is not protected information for the purposes of the social security law.

9. This amendment would ensure that information obtained under Chapter 2D would be treated in the same way information would be if it was instead obtained under section 32B of the FFSP Act. Information obtained under section 32B of the FFSP Act is not protected information, as it is not obtained under the social security law.

10. Chapter 2D did not need to be included in the social security law - it could have been included in other legislation. As there was no requirement to have included it in the social security law, there is no reason to treat information obtained under it differently to information obtained under section 32B.

11. One of the main objects of the social security law is to ensure that Australians have access to a minimum essential level of benefits, playing an important role in alleviating poverty and promoting social inclusion. Parliament has afforded information obtained in pursuit of this object greater protection than the protection the Privacy Act affords to it. Information obtained under Chapter 2D is not obtained for any of the usual purposes of the social security law.

12. The Privacy Act will continue to apply, as relevant, to personal information obtained under Chapter 2D.

Item 4 - After subsection 1062A(1)

13. This item would insert new subsections 1062A(1A) and (1B) into Chapter 2D.

14. New subsection 1062A(1A) would provide that the making, varying or administering of an arrangement or grant under subsection 1062A(1) must be for the purposes of a program specified in an instrument under subsection 1062A(1B).

15. New subsection 1062A(1B) would provide that the Employment Secretary may, by notifiable instrument, specify programs for the purposes of subsection 1062A(1A).

16. Presently, Chapter 2D automatically provides legislative authority for spending where it applies. This can make it difficult to determine which programs are supported by Chapter 2D. The proposed amendments would therefore provide that Chapter 2D can only support a program if it is listed in a notifiable instrument, which would be publicly available.

17. The amendments promote transparency and would dovetail with the new reporting requirements that item 11 of Schedule 1 to the Bill would insert into Chapter 2D.

Item 5 - After subsection 1062A(5)

18. This item would insert new subsections 1062A(5A) and (5B) into Chapter 2D.

19. New subsection 1062A(5A) would make clear that a payment under an arrangement or grant referred to in subsection 1062A(1) is not a social security payment. Once again, this amendment would ensure that decisions made in the exercise of the spending power in Chapter 2D are treated the same as if they were instead made in the exercise of the spending power in section 32B of the FFSP Act. A payment made in the exercise of the power in section 32B of the FFSP Act is never a social security payment.

20. New subsection 1062A(5B) would provide that, to avoid doubt, the power in section 1062A must be disregarded for the purpose of paragraph 32B(1)(a) of the FFSP Act. A note to this provision explains that the effect of the provision is that section 1062A does not effectively limit the operation of section 32B of the FFSP Act, and that the Commonwealth has the power to make, vary or administer arrangements or grants under section 32B of the FFSP Act whether or not the Commonwealth also has the power to do so under section 1062A of the Social Security Act. The amendment would make clear that legislative authority under section 32B of the FFSP Act can continue to be relied on irrespective of Chapter 2D.

Item 6 - Section 1062B

21. This item would make a minor amendment to section 1062B of the Social Security Act to insert "(1)" before the words "An arrangement". This is because item 10 of Schedule 1 to the Bill inserts a new subsection (2) into section 1062B.

Item 7 - After paragraph 1062B(h)

22. This item would insert three new paragraphs into subsection 1062B(1) of the Social Security Act. That subsection sets out the constitutional heads of power which an arrangement or grant referred to in section 1062A may be with respect to (such an arrangement or grant must be with respect to at least one of those heads of power). These new paragraphs relate to implementing any of Australia's international obligations under the climate change treaties.

23. The Australian Government is committed to supporting individuals in Australia to get and keep paid work through Australia's clean energy transition. To the extent that programs aimed at providing such support are intended to reduce Australia's domestic emissions, they might derive constitutional support from the external affairs power in section 51(xxix) of the Constitution, as enlivened by the climate change treaties. The insertion of these paragraphs would provide additional support for spending on such programs.

Item 8 - Paragraph 1062B(k)

24. This item would repeal paragraph 1062B(k) of the Social Security Act and substitute it with new paragraph 1062B(1)(k). New paragraph 1062B(1)(k) would specifically refer to "Indigenous persons". This is a technical amendment to ensure that Chapter 2D better engages with the Commonwealth's races power in paragraph 51(xxvi) of the Constitution.

25. Specifically, paragraph 51(xxvi) of the Constitution relates to "the people of any race for whom it is deemed necessary to make special laws". Courts have held (for example, in Koowarta v Bjelke-Petersen (1982) 153 CLR 168) that a law enacted under section 51(xxvi) of the Constitution must be a special law for the people of a particular race. Accordingly, this amendment would identify "Indigenous persons" as the people of a particular race for whom Parliament intends to make a special law.

Item 9 - Section 1062B (note)

26. This item would make a minor amendment to the note in section 1062B of the Social Security Act to omit the words "The text of a Convention or Covenant could in 2022" and substitute them with the words "The text of a Convention, Covenant, Protocol or Agreement could in 2023".

27. This amendment would reflect the references to the Kyoto Protocol and the Paris Agreement that item 7 of Schedule 1 to the Bill would insert. This amendment would also update the year reference to improve the note's currency.

Item 10 - At the end of section 1062B (after the note)

28. This item would insert new subsection 1062B(2) into Chapter 2D. New subsection 1062B(2) would provide that, in section 1062B as amended by Schedule 1 to the Bill, "Indigenous person" has the same meaning as in the Indigenous Education (Targeted Assistance) Act.

Item 11 - Section 1062D

29. This item would repeal section 1062D of the Social Security Act and substitute it with new sections 1062D and 1062DA.

30. New section 1062D would provide that the Employment Secretary must include the following information in the Employment Department's annual report under section 46 of the PGPA Act for a period:

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the name of each program for which an arrangement or grant referred to in section 1062A was made, varied or administered; and

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the total amounts paid in that period under arrangements or grants in relation to each such program.

31. This amendment would ensure that the most relevant information is reported, namely the total amount paid under a program, and maintains the high level of transparency provided by Chapter 2D.

32. New section 1062DA would provide that the Social Security Administration Act, other than sections 3 (definitions), 234 (delegations) and 242 (appropriations), does not apply in relation to Chapter 2D.

33. Section 3 of the Social Security Administration Act is a definition section. The retention of its application is intended to ensure that relevant definitions continue to apply. The retention of section 234 of the Social Security Administration Act's application would ensure that the Employment Secretary may continue to delegate powers under Chapter 2D. Currently, subsection 242(2) provides that subsection 242(1) does not apply in relation to section 1062A. Retaining the application of that subsection ensures that this will remain the case, i.e. the funding for employment-focussed programs would continue to need to be sourced from annual appropriations in the usual way, not from the standing appropriation in subsection 242(1).

34. Otherwise, the Social Security Administration Act contains various provisions that apply in relation to the administration of the social security law that are not relevant to Chapter 2D which simply provides legislative authority for certain spending. For example, the Administration Act includes provisions about how a person can claim social security benefits, mutual obligation requirements, requirements on individuals to give information about changed circumstances and provisions concerning concession cards.

35. Among the generally applicable provisions in the Social Security Administration Act are those relating to internal review and external merits review contained in Parts 4 and 4A. One of the main objects of the social security law generally is to ensure Australians have access to a minimum essential level of benefits, playing an important role in alleviating poverty and promoting social inclusion. Many decisions made in relation to this object are very clearly administrative decisions that affect the interests of a person. Those decisions should, accordingly, be subject to merits review.

36. Decisions made in the exercise of the spending power in Chapter 2D are not made in relation to this object but rather are entirely discretionary decisions, typically to make grant- or procurement-related payments to service providers. This makes them entirely unsuitable for internal review or review by the Administrative Appeals Tribunal for all of the same reasons that decisions made in the exercise of the spending power in section 32B of the FFSP Act are unsuitable for such review. There is no reason to treat decisions made under Chapter 2D differently to those made under section 32B of the FFSP Act, and it was never the intent to do so. This amendment would make clear that merits review of Chapter 2D decisions is not available.

Veterans' Entitlements Act 1986

Item 12 - After subsection 5H8

37. This item would insert new subsection 5H(8AA) into the Veterans' Entitlements Act, which would provide that paragraph 5H(8)(h) does not apply to a payment under an arrangement or grant referred to in section 1062A of the Social Security Act. This item would amend the Veterans' Entitlements Act in a manner equivalent to the amendment to the Social Security Act that item 2 of Schedule 1 to the Bill would make.

Application and transitional provisions

Item 13 - Amendments commencing seventh day after Royal Assent

2. Paragraph (1)(a) of this item would provide that new subsection 1062A(1A) of the Social Security Act would apply to an arrangement or a grant made on or after the commencement of this item or to the variation or administration of such an arrangement or grant. Paragraph (1)(b) of this item would provide that new subsection 1062A(1A) would apply to the variation or administration, on or after the commencement of this item, of an arrangement or grant made before that commencement.

3. Subitem (2) of this item would provide that new subsection 1062A(1B) of the Social Security Act would apply in relation to a program established before, on or after the commencement of this item.

Item 14 - Amendments commencing day after Royal Assent

4. Subitem (1) of this item would provide that the amendment of subsection 23(1) of the Social Security Act made by item 3 of Schedule 1 to the Bill, in respect of the definition of protected information, would apply in relation to information obtained before, on, or after commencement of this item.

5. Paragraph (2)(a) of this item would provide that the amendments to section 1062B of the Social Security Act made by Schedule 1 to the Bill would apply in relation to an arrangement or grant made on or after the commencement of this item or the variation or administration of such an arrangement or grant.

6. Paragraph (2)(b) of this item would provide that the amendments to section 1062B made by Schedule 1 to the Bill would apply in relation to the variation or administration, on or after the commencement of this item, of an arrangement or grant made before that commencement.

Item 15 - Amendments commencing on Royal Assent

7. Subitem (1) of this item would provide that the repeal and substitution of section 1062D of the Social Security Act made by Schedule 1 to the Bill would apply in relation to:

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if this item commences before 20 September 2023-the period ending on 30 June 2023 and each later period; or

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if this item commences on or after 20 September 2023-a period ending on or after that commencement.

46. Subitem (2) of this item would provide that the Employment Secretary, when preparing the Employment Department's annual report under section 46 of the PGPA Act for the first period in relation to which new section 1062D of the Social Security Act, as substituted by Schedule 1 to the Bill, would apply, must also include in that report:

(a)

the following:

(i)

the name of each program for which an arrangement or grant referred to in section 1062A of the Social Security Act was made, varied or administered in the financial year ending on 30 June 2022; and

(ii)

in relation to each such program-the total of the amounts paid in that financial year under arrangements or grants referred to in that section; and

(b)

if this item commences on or after 20 September 2023-the following:

(i)

the name of each program for which an arrangement or grant referred to in section 1062A of the Social Security Act was made, varied or administered in the financial year ending on 30 June 2023; and

(ii)

in relation to each such program-the total of the amounts paid in that financial year under arrangements or grants referred to in that section.

47. Subitem (3) of this item would provide that, by complying with subitem (2) of this item in relation to a financial year covered by paragraph (2)(a) or (b) of this item, the Employment Secretary would be taken, in relation to that financial year, to have complied with section 1062D, as in force immediately before the commencement of this item.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Social Security and Other Legislation Amendment (Miscellaneous Measures) Bill 2023

The Social Security and Other Legislation Amendment (Miscellaneous Measures) Bill 2023 ( 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 Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2022 ( SPROM Act ) amended the social security law to, among other things, insert Chapter 2D into the Social Security Act 1991 ( Social Security Act ). Since its commencement on 2 April 2022, Chapter 2D has permitted the Employment Secretary to make, vary, or administer an arrangement or grant, in relation to programs which help people find and keep paid work or become self-employed and which enable people to develop skills for the jobs of today and tomorrow, including through apprenticeships and training.

As explained in the explanatory memorandum for the SPROM Act's originating bill, Chapter 2D was intended to provide more streamlined legislative authority than that provided by section 32B of the Financial Framework (Supplementary Powers) Act 1997 ( FFSP Act ) where appropriate amendments to the Financial Framework (Supplementary Powers) Regulations 1997 ( FFSP Regulations ) have been made. Chapter 2D allows the Australian Government to address rapidly changing employment and skills needs without delays caused by the need to wait for an FFSP Regulation item to be made or amended.

The explanatory memorandum for the SPROM Act's originating bill noted that "all Chapter 2D does is provide statutory authority for expenditure ... All of the usual processes and requirements for the establishment and oversight of such programs will remain unchanged'. (As of June 2023, this explanatory memorandum was available at:
www.legislation.gov.au/Details/C2021B00066/Explanatory%20Memorandum/Text).

The Bill would amend the Social Security Act, the Veterans' Entitlements Act 1986 and the Administrative Decisions (Judicial Review) Act 1977 to ensure Chapter 2D operates consistently with this intention. The Bill would do this by:

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making clear the interaction between Chapter 2D and other provisions of the social security law. It would ensure that payments supported by Chapter 2D are treated in the same way as if they were instead supported by section 32 of the FFSP Act. The Bill would also, with a few limited exceptions, exclude the Social Security (Administration) Act 1999 from applying to Chapter 2D, as most provisions of that Act are irrelevant to Chapter 2D.

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making clear that Chapter 2D operates concurrently with the FFSP Act.

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streamlining the provisions so that there is greater certainty as to the programs which involve spending that derives legislative authority from Chapter 2D, and so that the requirement to report on spending covered by Chapter 2D is clear;

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making some other minor technical amendments to ensure that the legislative authority Chapter 2D provides better engages with the Commonwealth's constitutional powers.

Human rights implications

The Bill engages the following rights:

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the right to work (article 6 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR ));

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the right to social security (article 9 of the ICESCR);

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the right to an adequate standard of living (article 11 of the ICESCR);

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the right to education (article 13 of the ICESCR);

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the right to equality and non-discrimination (article 2 of the ICESCR); and

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the right to privacy (article 17 of the International Covenant on Civil and Political Rights ( ICCPR )).

Rights to work, social security and an adequate standard of living

Article 6 of the ICESCR recognises the right of every person to work. The right to work requires State Parties to implement technical and vocational guidance and training programmes, and policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 9 of the ICESCR recognises the right of every person to social security. The right to social security requires State Parties to establish a social security system and, within their maximum available resources, ensure access to a social security scheme that provides 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 forms of education.

Article 11 of the ICESCR recognises the right of every person to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions.

Right to education

Article 13 of the ICESCR recognises the right of every person to education. The right to education requires State Parties to recognise that, with a view to full realisation of this right, primary education shall be compulsory and freely available to all; secondary education shall be generally available and accessible to all; higher education shall be made equally accessible by all; fundamental education shall be encouraged or intensified as far as possible for those who have not completed primary education; and the development of a system of schools at all levels shall be actively pursued.

Rights to equality and non-discrimination

Article 2 of the ICESCR recognises the rights to equality and non-discrimination. These rights require State Parties to guarantee that the rights mentioned in the ICESCR will be exercised without discrimination of any kind as to, relevantly to the Bill, race.

Right to privacy

Article 17 of the ICCPR recognises the right to privacy. The right to privacy requires State Parties to ensure that no one shall be subjected to arbitrary or unlawful interference with their privacy.

Rights to work, social security, an adequate standard of living and education

As explained in the explanatory memorandum for the SPROM Act, Chapter 2D "will prevent delay and therefore promote [the rights to work, social security, an adequate standard of living, and education] because job seekers will not have to wait for assistance while regulation items are made".

Similarly, as the Bill would improve the operation of Chapter 2D, the Bill also promotes those rights. The Bill would mean that legislative authority for spending on employment-focussed programs will be available when needed through the making of a notifiable instrument by the Employment Secretary.

In relation to item 2 of Schedule 1 of the Bill, paragraph 8(8) of the Social Security Act exempts certain amounts from counting as income for the purposes of determining a person's social security entitlements.

Item 2 would insert new subsection 8(8AAAA) to the Social Security Act, which provides that paragraph 8(8)(a) (that exempts payments under the Social Security Act), does not apply to a payment under an arrangement or grant referred to in section 1062A of the Social Security Act. This new subsection would not prevent another paragraph of subsection 8(8) from applying to such a payment.

It is expected that the change would have no practical effect. Rather, it would make clear that spending decisions under Chapter 2D are to be treated in the same way as spending decisions under section 32B of the FFSP Act for the purposes of assessing a person's income for social security purposes.

Right to equality and non-discrimination

Item 8 of Schedule 1 of the Bill would update the constitutional limitations that constrain the spending power in Chapter 2D to ensure paragraph 51(xxvi) of the Constitution is invoked in relation to "Indigenous persons". This is because courts have held (for example, in Koowarta v Bjelke-Petersen (1982) 153 CLR 168) that a law enacted under section 51(xxvi) of the Constitution must be a special law for the people of a particular race.

Ensuring constitutional support for Commonwealth spending on programs aimed at removing barriers First Nations Australians might face in getting and keeping paid work engages the right to equality and non-discrimination. This is because such programs involve positive action on the basis of a protected status to reflect relevant differences between different groups. Such differential treatment is based on objective and reasonable criteria and seeks to achieve substantive equality.

Right to privacy

Item 3 of Schedule 1 of the Bill would make clear that information about a person that was obtained by an officer under Chapter 2D is not protected information for the purposes of the social security law. This would ensure that information obtained under Chapter 2D will be treated in the same way information would be if it was instead obtained under section 32B of the FFSP Act. Information obtained under section 32B of the FFSP Act is not protected information, as it is not obtained under the social security law.

Chapter 2D did not need to be included in the social security law - it could have been included in other legislation. As there was no requirement to have included it in the social security law, there is no reason to treat information obtained under it differently to information obtained under section 32B of the FFSP Act.

Information obtained under Chapter 2D is not obtained for any of the usual purposes of the social security law. The Privacy Act 1988 (Privacy Act) will continue to apply, as relevant, to personal information obtained under Chapter 2D. As such, information specific to individuals obtained under Chapter 2D, if any, will continue to receive all necessary protection due to the Privacy Act.

Conclusion

The Bill is compatible with human rights because it promotes human rights and has no other discernible impact on human rights.