Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Human Rights, I present the 27th report of the 44th Parliament, Human Rights Scrutiny Report.

Ordered that the document be printed.

I move:

That the Senate take note of the report.

I seek leave to have the tabling statement incorporated into Hansard.

Leave granted.

The statement read as follows—

I rise to speak to the tabling of the Parliamentary Joint Committee on Human Rights' Twenty-Seventh Report of the 44th Parliament.

The committee's report examines the compatibility of bills and legislative instruments with Australia's human rights obligations. This report considers bills introduced into the Parliament from 17 to 20 August 2015 and legislative instruments received from 7 to 13 August 2015. The report also includes the committee's consideration of a response to a matter raised in a previous report.

Of the 11 bills examined in this report, seven are assessed as not raising human rights concerns and four raise matters in relation to which the committee will seek a response from the legislation proponents. The committee has concluded its examination of one bill, has deferred its consideration of one bill and continues to defer a number of instruments.

This report follows the committee's usual scrutiny approach to assessing whether a bill or instrument is compatible with human rights, as set out in the seven core international human rights treaties to which Australia is a party.

Most human rights are able to be limited if there is a proper justification for doing so. The committee's analytical framework therefore focuses primarily on identifying if a proposed measure might have the effect of limiting the enjoyment of a specific right and, second, whether any such limitation may be regarded as permissible or justified.

The vast majority of bills and instruments considered by the committee do not raise human rights concerns because they either do not engage any human rights or in fact promote rights.

Of the legislation that may or does limit human rights, the committee is often able to assess the limitation as justifiable under international human rights law. In these cases, the committee generally reports on the legislation simply by identifying it as not giving rise to human rights concerns.

The committee's approach thus focuses on those bills and instruments which raise human rights concerns and which have not been adequately addressed in the statement of compatibility.

These remarks I hope draw attention to the great importance of ensuring that statements of compatibility for bills and instruments provide considered and evidence-based assessments of how any potential limitations of human rights may regarded as justified.

Indeed, in most cases that the committee determines it is necessary to write to a legislation proponent, it is invariably because the statement of compatibility accompanying the legislation does not provide the committee with sufficient information for it to fully assess the human rights compatibility of the legislation.

For the benefit of those charged with the task of preparing statements of compatibility, I would emphasise the importance of clearly setting out the objective of the legislation and the manner in which human rights have been considered when framing the legislation. This is crucial when, in order to achieve a particular objective, certain rights are to be limited.

The committee expects that where rights are limited the statement of compatibility will demonstrate that the limitation is rationally connected to, which is to say will be effective to achieve, its stated objective, and explain whether the limitation is proportionate to that objective. The statement should also set out any safeguards that will be applied to ensure that any limitations on human rights are implemented in the least restrictive form.

With this context, I note that some of the statements of compatibility accompanying the bills considered in this report have fallen short of the committee's expectations. In particular, a number of these provide simple assertions with no supporting evidence. As one example, the statement of compatibility for the Social Security Legislation Amendment (Debit Card Trial) Bill 2015 provided no empirical evidence of how the proposed measures are likely to be effective in achieving their objective. This is necessary due to the fact that income management schemes, while clearly well-intended, necessarily involve limitations on a number of human rights, such as the right to a private life and the right to equality and non-discrimination.

As in all cases, the committee will request, in a spirit of constructive dialogue, further information from the sponsor of the legislation that supports their assessment that the measures propose only justifiable limitations on human rights.

As always, I encourage my fellow members and others to examine the committee's report to better inform their understanding of the committee's deliberations.

With these comments, I commend the committee's Twenty-seventh Report of the 44th Parliament to the House.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I wish to take note of the Human Rights Committee report and in particular to take note of their comments on the Social Security Legislation Amendment (Debit Card Trial) Bill 2015. I would definitely encourage members to have a very good look at this report because it makes some very important comments on the debit card trial. The report points out some very significant issues, and says:

Restricting how a person can access, and where they can spend, their social security benefits, interferes with the person's right to personal autonomy and therefore their right to a private life. In addition, being able to only access 20 per cent of welfare payments in cash could have serious restrictions on what a person is able to do in their private life. There are many instances where a person would only be able to use cash to purchase goods or services, such as at markets, for public transport, to give to family members, services which require cash payments, buying second-hand goods and at stores that have minimum purchase requirements. For those on the single rate of Newstart, restricting the cash availability of the allowance to 20 per cent would mean that just over $50 is available per week to be spent in cash. This restriction undoubtedly impacts on how a person is able to conduct their private life and represents the extension of government regulation into the private and family lives of the persons affected by these trials.

It goes on to say:

As the UN Special Rapporteurs on Extreme Poverty and Human Rights and Rights of Indigenous Peoples have said in relation to the provision of social security benefits:

'When States impose excessive requirements and conditions on access to public services and social benefits, and severe sanctions for noncompliance, such measures threaten welfare beneficiaries' enjoyment of a number of human rights, including the right to … be free from arbitrary or unlawful State interference in their privacy, family, home or correspondence.'

…   …   …

It is noted that the measure, in quarantining a person's welfare payments and restricting where that quarantined payment can be spent, is very similar to the existing program of income management.

It goes on to talk about income management and quoting the fact that there is no evidence on achieving the intended outcomes of income management, and says:

Rather than promoting independence and building skills and capabilities, it appears to have 'encouraged increasing dependence upon the welfare system', and there is no evidence to indicate its effectiveness at the community level or that it facilitates long-term behaviour change.

The committee notes that it is conducting an investigation into stronger futures and it plans to report on that later this year. The committee report also says:

The committee's assessment of the restrictions on welfare payments against article 17 of the International Covenant on Civil and Political Rights (right to a private life) raises questions as to whether this measure is justifiable.

It goes on to say:

The committee therefore seeks the advice of the Minister for Social Services as to:

The report continues:

The committee also seeks the minister's advice on these questions regarding the right to social security and the right to equality and nondiscrimination set out below …

The report goes on to talk about issues around equality and nondiscrimination, pointing out:

The statement of compatibility—

the government's statement about the bill's compatibility with human rights—

states that the cashless welfare arrangements trial will not be applied on the basis of race or cultural factors. Rather, trial locations 'will be chosen based on objective criteria—

and, as an aside here, I will just say that at the moment it is in Ceduna and there is talk about it being in Kununurra, quite clearly because of Aboriginal communities—

such as high levels of welfare dependence and community harm, as well as the outcomes of comprehensive consultation with prospective communities.' As such, the statement of compatibility says that the trial is not targeted at people of a particular race. It also states that the trial will not detract from the eligibility of a person to receive welfare, nor will it reduce the amount of a person's social security entitlement. The statement of compatibility makes no reference to whether the measure may impact disproportionately on women or people with a disability.

The report goes on to say:

It is difficult to say whether this measure will have a disproportionate impact on people of a particular race as the locations for the trial are not set out in the bill but are to be established by a legislative instrument. However, as the statement of compatibility acknowledges, these amendments are in response to a key recommendation made by Mr Andrew Forrest's Review of Indigenous Jobs and Training. This review examined options to help 'end the disparity between Indigenous Australians and other Australians'.

…   …   …

In addition, the Parliamentary Secretary to the Prime Minister's Second Reading speech stated that Ceduna in South Australia will be the first site under the trial to commence, and that advanced discussions were under way with leaders in the East Kimberly region to trial the arrangement. A high proportion of the population of Ceduna and the East Kimberley region are Indigenous, many of whom are receiving social security benefits. It therefore appears likely that the measures may disproportionately impact on Indigenous persons, and as such may be indirectly discriminatory unless this disproportionate effect is demonstrated to be justifiable. This has not been explored in the statement of compatibility.

Here we have the Parliamentary Joint Committee on Human Rights raising very serious concerns about the debit card trial bill and the healthy welfare card. These are very serious concerns. I must agree with the issues that the committee have raised. I believe that there are further concerns, but at the heart of the concerns is: is this measure actually going to help people? If we look at income management—and we had this debate on Monday—no, it is not. It is, I think, going to impact on people's human rights.

I await the minister's response, as I will be fascinated to see him explain how people's human rights are not going to be impinged upon by the so-called healthy welfare card.

I seek leave to continue my remarks.

Leave granted; debate adjourned.