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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This instrument establishes the operation of the JobKeeper payment
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Portfolio
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Treasury
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Authorising legislation
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Coronavirus Economic Response Package (Payments and Benefits) Act
(2020)
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Disallowance
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15 sitting days after tabling
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Rights
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Adequate standard of living; equality and non-discrimination
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Status
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Seeking additional information
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1.88 This instrument establishes the operation of the JobKeeper payment. This is a subsidy of $1,500 per eligible employee per fortnight, which is administered by the Australian Taxation Office and provided directly to registered eligible businesses. Those businesses (or entities) are then required to pass on this subsidy to those eligible employees. An individual is defined as an 'eligible employee' if, on 1 March 2020, they were: aged 16 years or older; an employee (other than a casual employee) of the entity or a long term casual employee of the entity;[2] and were an Australian resident (which broadly captures Australian citizens and permanent residents)[3] or a New Zealand citizen living in Australia on a special category of visa.
1.89 By providing for the payment of a subsidy to certain registered businesses for eligible employees, this instrument appears to engage a number of human rights. As the JobKeeper payment is intended to replace a person’s wage during the COVID-19 pandemic and during circumstances in which people may otherwise be at risk of losing their job, it would appear that this measure promotes the right to an adequate standard of living and the right to work with respect to eligible workers.[4]
1.90 However, the JobKeeper subsidy is broadly limited to employees who are either Australian citizens, permanent Australian residents, or specified New Zealand citizens living in Australia.[5] As such, it appears that this measure engages and limits the right to equality and non-discrimination.[6] This right provides that everyone is entitled to enjoy their rights without discrimination of any kind, which encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[7] This measure may have a disproportionate impact on those employees working in Australia who are foreign nationals (other than New Zealanders on a special category of visa).
1.91 Differential treatment will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[8] The statement of compatibility does not explain the reason for the differential treatment of foreign nationals who are not permanent residents or New Zealanders. It appears to only explain why New Zealand citizens are eligible for the JobKeeper payment, stating that this 'supports the unique arrangements and bilateral relationship between Australia and New Zealand under the Trans-Tasman Travel Arrangement'.[9] However, it is not clear that supporting a unique travel arrangement and bilateral relationship between Australia and New Zealand constitutes a legitimate objective for treating citizens from other countries differently. As such, further information is required as to the compatibility of this measure with the right to equality and non-discrimination, including what is the legitimate objective for the differential treatment of eligible employees based on their nationality, and whether the measure is otherwise reasonable and proportionate.
1.92 The committee notes that this instrument establishes the JobKeeper payment to be administered by the Australian Taxation Office. The committee notes that the payment is broadly restricted to apply to employees who are Australian citizens, permanent Australian residents or New Zealand citizens working in Australia.
1.93 The committee considers that this measure is likely to promote the rights to an adequate standard of living and work, as it is intended to replace a person’s wage during the COVID-19 pandemic and during circumstances in which a person may otherwise be at risk of losing their job. The committee notes that the measure may also limit the right to equality and non-discrimination. This right may be subject to permissible limitations if it is shown to be reasonable, necessary and proportionate.
1.94 The committee seeks the Treasurer's advice as to the compatibility of this measure with the right to equality and non-discrimination.[10]
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 [F2020L00419], Report 5 of 2020; [2020] AUPJCHR 73.
[2] A long term casual employee is defined in subsection 9(5) of the instrument as a casual employee who had been employed by the entity on a regular and systematic basis during the period of 12 months before 1 March 2020.
[3] Paragraph 9(2)(c) of the instrument defines Australian resident as within the meaning of section 7 of the Social Security Act 1991, which defines it as a person who resides in Australia and is an Australian citizen, the holder of a permanent visa or holds a visa relating to whether the person had been in Australia before 26 February 2001.
[4] International Covenant on Economic, Social and Cultural Rights, articles 11(1) and 6 and 7.
[5] Coronavirus Economic Response Package (Payments and Benefits) Rules 2020, subsection 9(c). See also statement of compatibility.
[6] Articles 2 and 26 of the International Covenant on Civil and Political Rights. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.
[7] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[8] UN Human Rights Committee, General Comment 18: Non-discrimination (1989), [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003), [10.2].
[9] Statement of compatibility, p. 32.
[10] The committee's consideration of the compatibility of a measure which limits rights is assisted if the response addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2020/73.html