Economic Justice Australia submission to the Inquiry into Australia’s Human Rights Framework.
View the submission here.
Executive Summary
In the absence of comprehensive legal protections of human rights, there is a significant gap at the heart of Australia’s legal and political framework. This can lead to:
- A lack of due consideration of human rights implications by Government and public servants when making laws, policy and administrative decisions, which leads to preventable rights breaches.
- Vulnerable and disadvantaged people and groups falling through the cracks.
- A lack of safeguards and domestic remedies for individuals when human right breaches occur.
- Insufficient realisation of democratic and rule of law principles, including transparency, accountability and participation, in law, policy and decision-making processes.
An HRA would create a legislative duty binding Government and public servants to act compatibly with the human rights expressed in the HRA, and to give proper consideration to human rights when making decisions. This would prevent human rights breaches from occurring in the first place, due to an emphasis on early consideration of rights in decision-making. It would also ensure that when breaches do occur, access to complaints and judicial pathways, and remedies, are available to individuals.
The social security context, an area of federal responsibility, highlights the need for an HRA – one that encompasses protections for economic, cultural and social rights, inclusive of the right to social security. A number of systemic human rights issues have arisen in the social security context. Case studies include:
- Robodebt – an unlawful program that resulted in significant human and financial cost;
- Compulsory income management – which implicates rights to non-discrimination, self-determination, social security and private life – and lacks a sufficient evidence base.
- The newly arrived residents waiting period – an arbitrary restriction on access to social security that impacts upon vulnerable new migrants.
- Arbitrary payment suspensions for non-compliance with ‘mutual obligations’ (for activity-tested payments) that do not meet procedural fairness standards.
- The ParentsNext program that until recently placed onerous and punitive obligations on the primary carers of young children as a condition on access to social security;
- Payment rates that fall short of meeting the right to an adequate standard of living, as illustrated by COVID-19 payment wind-backs;
- Access and eligibility complexities and restrictions for vulnerable groups – particularly with respect to the Disability Support Pension.
The right to social security is expressed in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is also reflected in other core treaties, and intersects with other economic, social and cultural rights, as well as civil and political rights. The scope of the right encompasses minimum core standards, including access to schemes that provide enough to ensure basic living standards, non-discriminatory application, and procedural fairness in social security decision-making. It also encompasses progressive realisation measures that realise the right over time, and proscribes against retrogressive backwards steps.
An HRA would enable a rights-based approach to social security law, policy development and administration, with social security recipients treated as rights-holders having certain legal entitlements. It would preclude discriminatory programs and arbitrary eligibility exclusions; ensure accessibility measures are built into the system; provide for procedurally fair, transparent and accountable decisions; enable decisions that do not meet human rights standards to be challenged and redressed; require justification for any limitations on the right – including steps to reduce access or payment rates; and set the foundations for monitoring and accountability measures to assess progressive realisation over time.
A federal HRA should be implemented based on the AHRC’s model. Any national human rights framework or action plan should centre an HRA, with complementary legislative and policy measures. The HRA should include the right to social security as well as other ICESCR rights, with a direct cause of action.
Recommendations
- That the Federal Government legislate a federal Human Rights Act. The Human Rights Act should be based on the Australian Human Rights Commission’s model, and include the elements outlined in its Human Rights Act Position Paper.
- That all ICESCR rights be implemented through the Human Rights Act, including the right to social security. The formulation of the right to social security should reflect its articulation in international law. There should be a direct cause of action, that at least encompasses the minimum core elements of the right, alongside measures to ensure progressive realisation of the right, including through ongoing monitoring and reporting against set human rights indicators.
- That the Australian Human Rights Commission’s broader recommendations for a national Human Rights Framework be endorsed by the Committee and implemented by Government.
Contact for this submission
Sarah Sacher
Law Reform Officer
sarah@ejaustralia.org.au
Economic Justice Australia
Suite 321/410 Elizabeth Street,
Surry Hills NSW 2010