Sophie Scamps (Mackellar, Independent) Share this | Hansard source

by leave—I move amendments (1) and (2) as circulated in my name together:

(1) Clause 5, page 3 (line 3), after "Cultural Rights", insert ", the International Covenant on Civil and Political Rights".

(2) Clause 7, page 14 (after line 2), after the definition of cost, insert:

Covenant on Civil and Political Rights means the International Covenant on Civil and Political Rights done at New York on 16 December 1966.

Note: The Covenant is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2024 be viewed in the Australian Treaties Library on 7 the AustLII website (http://www.austlii.edu.au).

The amendments I am introducing today go to the objects of the Aged Care Bill 2024. Section 15AA of the Acts Interpretation Act provides that statutes should be interpreted in accordance with their objects and that all other provisions of the bill are to be read as far as is possible as being designed to carry out these objects.

There can be no understating, therefore, of the importance of getting the objects provisions in the legislation right. Currently the bill's objects clause states, among other things, the objects are to:

give effect to Australia's obligations under the International Covenant on Economic, Social and Cultural Rights—

the ICESCR—

and the Convention on the Rights of Persons with Disabilities—

the CRPD. However, there is no reference in the objects to the International Covenant on Civil and Political Rights. The explanatory memorandum to the bill states:

This is because the objects specify only those conventions that the Bill upholds in reference to the External Affairs power, but it does not mean that the Bill does not endeavour to uphold these other international conventions.

Basically, the bill only includes those international human rights treaties that the minister considers relevant to the constitutional authority of the Aged Care Bill.

The Law Council takes a different view. In its submission on the bill's exposure draft, the Law Council queried the department's assessment that only the ICESCR and the CRPD are relevant to provide the constitutional foundation for the Aged Care Bill and to manage associated legal risk. The Law Council went on to say that various provisions in the bill may carry the risk that they do not have a proper constitutional foundation because there may not be a proper foundation for them in the Convention on the Rights of Persons with Disabilities. These include the right to be free from all forms of violence, neglect or abuse and the right to be treated with dignity. Only half of Australians over the age of 65 are living with a disability. To rely only on a treaty relating to disability to give the bill its constitutional foundation is a risk.

The International Covenant on Civil and Political Rights, on the other hand, applies to all persons and will eliminate this risk if incorporated into the bill. After all, the report of the aged care royal commission described aged care in Australia as 'a sad and shocking system that diminishes Australia as a nation' and said it tells a 'shocking tale of neglect'. It was the royal commission report that shocked the nation. The ICCPR is a foundational international human rights treaty, and it needs to be incorporated into what is, after all, a bill which seeks to establish a rights based framework for the older Australian.

Since publishing this amendment yesterday I've been contacted by Australia's Council on the Ageing, COTA Australia, expressing their appreciation for it. In their view, it will bolster the scope of powers the act sits upon. If we do truly want a bill that is based firmly on the rights of all older Australians, I ask for all my colleagues in this House to support this simple yet commonsense amendment.

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