Beth Goldblatt, University of Technology Sydney
Australia is party to a number of international human rights treaties that include the right to social security and an adequate standard of living. These rights must be provided equally to all based on rights to non-discrimination and gender equality that underlie all human rights. Despite this, many people in this country must accept highly conditional, often punitive and increasingly inadequate social security that undermines their human rights. Sole parents, the vast majority of whom are women, and their children, face particular challenges living in some of the most disadvantaged households in Australia. Parents who have faced domestic violence, who are from Indigenous, migrant or refugee backgrounds, and have disabilities or are carers of children with disabilities experience a range of intersectional challenges.
Australia lacks comprehensive domestic human rights protections with federal anti-discrimination laws of limited value in relation to social security laws and their implementation. Despite the lack of space for litigation in this regard, social security rights have been asserted in advocacy in two main ways: firstly, in submissions to Parliament’s Joint Committee on Human Rights; and secondly, at the international level through the United Nations’ human rights processes. This article briefly discusses how these forums have been used by advocates on issues related to Parenting Payment over the past decade.
The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires human rights compatibility statements to accompany all proposed legislation and sets up a Parliamentary Joint Committee on Human Rights (PJCHR) with powers to examine proposed and existing legislation for their compatibility with Australia’s international human rights obligations. In a small number of instances, the Committee has undertaken inquiries into particular pieces of contentious legislation. The public has been invited to make submissions to these inquiries. The handful of inquiries since the Committee began have involved a disproportionate focus on social security laws. The first inquiry concerned the 2012 bill removing the ‘grandfathering’ transitional arrangements with the result that from 1 January 2013, eligibility for Parenting Payment for all recipients ceased when the child of a partnered parent turned 6 or when the child of a single parent turned 8 years old. The inquiry found that the legislation implicated women’s rights to equality and social security and questioned its compatibility with human rights. It also linked its finding to the need to ensure that Newstart (as it then was) was adequate. Despite this finding Parliament went ahead with the legislation.
Recently, the Committee held an inquiry into legislation to alter the ParentsNext program after a Senate Inquiry hearing into the program in 2019 exposed human rights concerns with the compulsory nature of the program and the risk to the social security rights of participants. It is yet to release its report but it would be surprising if an adverse finding leads to changes to the program.
Since its powers are only recommendatory, the Committee offers a limited space for human rights-based challenges to Australian laws. As with international treaty bodies, the Parliamentary Committee offers a small space to challenge and possibly shame the government (while also educating parliamentarians, Ministers and their departments on human rights), but has no real teeth. Despite this, advocates have engaged with it for the purpose of recording their concerns and raising the issue publicly.
Advocates have used a range of forums at the international level to raise human rights concerns with Australia’s record on social security, including as it discriminates against women and their families. These include the universal periodic review process, the shadow reporting processes of the various human rights treaty committees, appeals to special mandates holders (particularly the UN Special Rapporteur on extreme poverty and human rights), and a direct complaint by a single mother under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (pending).
Again, while numerous UN processes have resulted in censure of Australia in relation to conditional, punitive and inadequate social security, the government has not shifted as a result. Nevertheless, advocates continue with their efforts as they see some value in registering protest, creating a record of violations, potentially shaming the government and denting its reputation at the international level where it may wish for greater influence. The value of using these appeals to human rights are certainly limited and should be considered, on an ongoing basis, to assess whether they are worth the time and effort. However, their impact in informing the public of their rights and framing their experiences and expectations of social security as rights issues is significant and necessary.