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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This legislative instrument continues the payment of the
COVID-19 supplement to 31 March 2021 for recipients of JobSeeker Payment,
Youth Allowance, Austudy Payment, Special Benefit, Partner
Allowance and Widow
Allowance
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Portfolio
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Families and Social Services
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the Senate and the House of
Representatives on 2 February 2021). Notice of motion to disallow
must be given
by 22 March 2021 in the House of Representatives and 11 May 2021 in the
Senate[2]
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Rights
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Social security; adequate standard of living
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1.119 This legislative instrument provides for the payment of the COVID-19 supplement for recipients of JobSeeker Payment, Parenting Payment, Youth Allowance, Austudy Payment, Special Benefit, Partner Allowance and Widow Allowance, at a rate of $150 per fortnight from 1 January to 31 March 2021.[3] It has been made following the expiration of the previous legislative provisions providing for the COVID-19 supplement. The supplement was originally introduced at a rate of $550 per fortnight for recipients of these social security payments from 27 April to
24 September 2020.[4] The supplement was subsequently extended for a further three months at $250 per fortnight, expiring on 31 December 2020.[5]
1.120 By providing for a monetary supplement to be made available to recipients of certain social security payments for three months, this measure, taken alone, engages and promotes the right to social security and the right to an adequate standard of living. The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and plays an important role in realising many other economic, social and cultural rights, in particular the right to an adequate standard of living.[6] The right to an adequate standard of living requires States Parties to take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in Australia, and also imposes on Australia the obligations listed above in relation to the right to social security.[7] The statement of compatibility identifies this, and notes that the instrument also extends several other temporary measures relating to eligibility for, and the provision of, several social security payments.[8]
1.121 As a party to the International Covenant on Economic, Social and Cultural Rights, Australia has an obligation to take steps towards achieving the progressive realisation of economic, social and cultural rights. It also has a corresponding duty to refrain from taking unjustified retrogressive measures, or backwards steps with respect to their realisation.[9] As a matter of law, this legislative instrument provides for the continued payment of a supplement that otherwise would have ceased to operate. However, in practice, those receiving the social security supplement are now receiving $100 less per fortnight than they previously received, which raises questions as to whether this may constitute a backwards step in the realisation of the rights to an adequate standard of living and social security. The United Nations (UN) High Commissioner for Human Rights has noted that a retrogressive measure may be one that indirectly 'leads to backward movement in the enjoyment of the rights recognized in the Covenant'.[10] Accordingly, in assessing whether a measure may be retrogressive, it is relevant to consider the context in which the relevant law is being implemented, the impact it will have on individuals, and the effect it will have on their human rights overall. In this case, while the supplement was always intended to be temporary, considering the cumulative effect of this measure in context, there is a risk that the reduction in the rate of this rights-enhancing supplement may constitute a retrogressive measure in relation to the realisation of the rights to social security and an adequate standard of living. Retrogressive measures, a type of limitation, may be permissible under international human rights law providing that they address a legitimate objective, are rationally connected to that objective and are a proportionate way to achieve that objective.
1.122 The UN Committee on Economic, Social and Cultural Rights has advised that if any deliberately retrogressive measures are taken with respect to a right, the State party has the burden of proving that they have been introduced 'after the most careful consideration of all alternatives' and that 'they are duly justifiable by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party'.[11] It is not entirely clear if the continued operation of the supplement, but at a reduced rate, would constitute a retrogressive measure as a matter of international human rights law. However, noting that there is a risk that it might, it would be necessary to consider whether the burden of proof referred to by the UN Committee on Economic, Social and Cultural Rights has been met. In light of this, it is difficult to assess the compatibility of the measure, because the statement of compatibility does not establish whether consideration was given to alternatives to this reduction and the effect of the reduction on social security recipients.[12]
1.123 The committee notes that this instrument provides for the temporary payment of the COVID-19 supplement for recipients of JobSeeker Payment, Parenting Payment, Youth Allowance, Austudy Payment, Special Benefit, Partner Allowance and Widow Allowance, at a rate of $150 per fortnight from 1 January to 31 March 2021.
1.124 The committee notes that this legislative instrument provides for the continued payment of a supplement that otherwise would have ceased to operate, albeit at a lower rate than that which previously applied. The committee considers that the supplement, which is designed to provide additional financial assistance to Australians financially impacted by the COVID-19 pandemic, taken alone, promotes the rights to social security and an adequate standard of living.
1.125 The committee notes the advice that although the supplement was always intended to be temporary, considering the cumulative effect of this measure in context, there is a risk that the reduction in the rate of this rights-enhancing supplement may constitute a retrogressive measure (that is, a backwards step) in relation to the realisation of the rights to social security and an adequate standard of living. Retrogressive measures, a type of limitation, may be permissible under international human rights law if they are shown to be reasonable, necessary and proportionate. If this were found to constitute a retrogressive measure, the statement of compatibility would need to provide an analysis as to whether this measure would be permissible under international human rights law.
1.126 Noting that it is not entirely clear if the continued operation of the supplement, but at a reduced rate, would constitute a retrogressive measure as a matter of international human rights law, the committee makes no concluded view in relation to this but draws the above advice to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Social Security (Coronavirus Economic Response–2020 Measures No. 16 Determination 2020 [F2020L01671], Report 2 of 2021; [2021] AUPJCHR 22.
[3] The Social Services and Other Legislation Amendment (Extension of Coronavirus Support) Act 2020 provided the minister with the power to determine, generally from 1 January to 31 March 2021, by disallowable legislative instrument, to make temporary modifications of the social security law in response to circumstances relating to COVID-19. The specific authority for the minister to set these rates of payment by legislative instrument is contained in the following sections of the Social Security Act 1991 (as amended by the 2020 Act): section 504 (COVID-19 supplement with respect to recipients of parenting payment); section 557 (COVID-19 supplement with respect to recipients of Youth Allowance); 646 (COVID-19 supplement with respect to recipients of Jobseeker); 1210B (COVID-19 supplement with respect to recipients of social security payments other than parenting payment, Youth Allowance, Jobseeker or sickness allowance); and section 1262 (authority for the minister to, by legislative instrument, determine modifications to social security law).
[4] Coronavirus Economic Response Package Omnibus Act 2020.
[5] Pursuant to the Social Security (Coronavirus Economic Response—2020 Measures No. 14) Determination 2020.
[6] International Covenant on Economic, Social and Cultural Rights, article 9. See also, UN Economic, Social and Cultural Rights Committee, General Comment No. 19: The Right to Social Security (2008).
[7] International Covenant on Economic, Social and Cultural Rights, article 11.
[8] Statement of compatibility, pp. 17–19. Note, however, the views of the UN Special Rapporteur on extreme poverty and human rights and the UN Economic, Social and Cultural Rights Committee in relation to short-term responses to the COVID-19 pandemic: UN Special Rapporteur for extreme poverty, Looking back to look ahead: A rights-based approach to social protection in the post-COVID-19 economic recovery (11 September 2020) at [6] and [26] and UN Economic, Social and Cultural Rights Committee, Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights (2020) at [10] and [25].
[9] International Covenant on Economic, Social and Cultural Rights, article 2. UN Committee on Economic, Social and Cultural Rights, General Comment No. 3: The nature of States parties obligations (Art. 2, par. 1) (1990) [9].
[10] See, UN High Commissioner for Human Rights, Report on austerity measures and economic and social rights, E/2013/82 (7 May 2013), p. 11.
[11] UN Committee on Economic, Social and Cultural Rights, General Comment 19: the right to social security (2008) [42]: 'There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine participation of affected groups in examining the proposed measures and alternatives; (d) the measures were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures at the national level'.
[12] It is noted that this committee has previously questioned the adequacy of (what was then) Newstart (now Jobseeker) in meeting the minimum requirements of the right to an adequate standard of living, see Parliamentary Joint Committee on Human Rights, Social Security Legislation Amendment (Fair Incentives to Work) Act 2012 – Final Report (March 2013), pp. 28–30. While the committee's report dates from 2013, it is noted that the JobSeeker rate has not increased since 1994, aside from in line with the Consumer Price Index and these temporary COVID-19 supplements.
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