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Australian Parliamentary Joint Committee on Human Rights |
Chapter 1
New and continuing matters
1.1 The committee comments on the following bills and legislative instruments, and in some instances, seeks a response or further information from the relevant minister.
Bills
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Purpose
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These bills propose appropriations from the Consolidated Revenue Fund for
services[2]
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Portfolio
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Finance
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Introduced
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House of Representatives, 25 October 2022
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Rights
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Multiple rights
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1.2 These bills seek to appropriate money from the Consolidated Revenue Fund for a range of services. The portfolios, budget outcomes and entities for which these appropriations would be made are set out in the schedules to each bill.[3]
1.3 Proposed government expenditure to give effect to particular policies may engage and limit, or promote, a range of human rights, including civil and political rights and economic, social and cultural rights (such as the rights to housing, health, education and social security).[4] The rights of people with disability, children and women may also be engaged where policies have a particular impact on vulnerable groups.[5]
1.4 Australia has obligations to respect, protect and fulfil human rights, including the specific obligations to progressively realise economic, social and cultural rights using the maximum of resources available; and a corresponding duty to refrain from taking retrogressive measures (or backwards steps) in relation to the realisation of these rights.[6] Economic, social and cultural rights may be particularly affected by appropriation bills, because any increase in funding would likely promote such rights, and any reduction in funding for measures which realise such rights, such as specific health and education services, may be considered to be retrogressive with respect to the attainment of such rights and, accordingly, must be justified for the purposes of international human rights law.
1.5 The statements of compatibility accompanying these bills do not identify that any rights are engaged by the bills, and state that the High Court has emphasised that because appropriation Acts do not ordinarily confer authority to engage in executive action, they do not ordinarily confer legal authority to spend, and as such, do not engage human rights.[7] However, because appropriations are the means by which the appropriation of money from the Consolidated Revenue Fund is authorised, they are a significant step in the process of funding public services. The fact that the High Court has stated that appropriations Acts do not create rights or duties as a matter of Australian law, does not address the fact that appropriations may nevertheless engage human rights for the purposes of international law. As the committee has consistently stated since 2013,[8] the appropriation of funds facilitates the taking of actions which may affect both the progressive realisation of, and failure to fulfil, Australia's obligations under international human rights law. Appropriations may, therefore, engage human rights for the purposes of international law, because reduced appropriations for particular areas may be regarded as retrogressive – a type of limitation on rights.
1.6 There is international guidance about reporting on the human rights compatibility of public budgeting measures.[9] For example, the Committee on the Rights of the Child has advised that countries must show how the public
budget-related measures they have chosen to take result in improvements in children's rights,[10] and has provided detailed guidance as to implementation of the rights of the child, which 'requires close attention to all four stages of the public budget process: planning, enacting, executing and follow-up'.[11] It has also advised that countries should 'prepare their budget-related statements and proposals in such a way as to enable effective comparisons and monitoring of budgets relating to children'.[12]
1.7 Without an assessment of human rights compatibility of appropriations bills, it is difficult to assess whether Australia is promoting human rights and realising its human rights obligations. For example, a retrogressive measure in an individual bill may not, in fact, be retrogressive when understood within the budgetary context as a whole. Further, where appropriation measures may engage and limit human rights, an assessment of the human rights compatibility of the measure would provide an explanation as to whether that limitation would be permissible under international human rights law.
1.8 Considering that appropriations may engage human rights for the purposes of international law, in order to assess such bills for compatibility with human rights the statements of compatibility accompanying such bills should include an assessment of the budget measures contained in the bill, including an assessment of:
• overall trends in the progressive realisation of economic, social and cultural rights (including any retrogressive trends or measures);[13]
• the impact of budget measures (such as spending or reduction in spending) on vulnerable groups (including women, First Nations Peoples, people with disability and children);[14] and
• key individual measures which engage human rights, including a brief assessment of their human rights compatibility.
1.9 In relation to the impact of spending or reduction in spending on vulnerable groups, relevant considerations may include:
• whether there are any specific budget measures that may disproportionately impact on particular groups (either directly or indirectly); and
• whether there are any budget measures or trends in spending over time that seek to fulfil the right to equality and non-discrimination for particular groups.[15]
1.10 The committee notes that these bills seek to appropriate money from the Consolidated Revenue Fund for services. The committee considers that proposed government expenditure to give effect to particular policies may engage and promote, or limit, a range of human rights.
1.11 The committee acknowledges that appropriations bills may present particular difficulties given their technical and high-level nature, and as they generally include appropriations for a wide range of programs and activities across many portfolios. As such, it may not be appropriate to assess human rights compatibility for each individual measure. However, the committee considers that the allocation of funds via appropriations bills is susceptible to a human rights assessment that is directed at broader questions of compatibility, namely, their impact on progressive realisation obligations and on vulnerable minorities or specific groups.
1.12 The committee considers that statements of compatibility for future appropriations bills should contain an assessment of human rights compatibility which meets the standards outlined in the committee's Guidance Note 1 and addresses the matters set out at paragraphs [1.8] and [1.9]. The committee would benefit from a statement of compatibility if budget measures directly impact human rights and if the measures are not addressed elsewhere in legislation.
1.13 The committee draws this matter to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Appropriation Bills 2022-2023, Report 6 of 2022; [2022] AUPJCHR 46.
[3] Appropriation Bill (No. 1) 2022-2023, Schedule 1; Appropriation Bill (No. 2) 2022-2023, Schedule 2; and Appropriation (Parliamentary Departments) Bill (No. 1) 2022-2023, Schedule 1.
[4] Under the International Covenant on Civil and Political Rights and the International covenant on Economic, Social and Cultural Rights.
[5] Under the Convention on the Rights of Persons with Disabilities; Convention on the Rights of the Child; and Convention on the Elimination of All Forms of Discrimination against Women.
[6] See, International Covenant on Economic, Social and Cultural Rights.
[7] Statements of compatibility, p. 4.
[8] Parliamentary Joint Committee on Human Rights, Report 3 of 2013 (13 March 2013) pp. 65-67; Report 7 of 2013 (5 June 2013) pp. 21-27; Report 3/44 (4 March 2014) pp. 3-6; Report 8/44 (24 June 2014) pp. 5-8; Report 20/44 (18 March 2015) pp. 5-10; Report 23/44 (18 June 2015) pp. 13-17; Report 34/44 (23 February 2016) p. 2; Report 9 of 2016 (22 November 2016) pp. 30-33; Report 2 of 2017 (21 March 2017) pp. 44-46; Report 5 of 2017 (14 June 2017) pp. 42-44; Report 3 of 2018 (27 March 2018) pp. 97-100; Report 5 of 2018 (19 June 2018) pp. 49-52; Report 2 of 2019 (2 April 2019) pp. 106-111; Report 4 of 2019 (10 September 2019) pp. 11-17; Report 3 of 2020 (2 April 2020) pp. 15-18; Report 12 of 2020 (15 October 2020) pp. 20-23; Report 7 of 2021 (16 June 2021) pp. 11-15; Report 2 of 2022 (25 March 2022) pp. 3-7.
[9] See, for example, UN Office of the High Commissioner for Human Rights, Realising Human Rights through Government Budgets (2017); South African Human Rights Commission, Budget Analysis for Advancing Socio-Economic Rights (2016); Ann Blyberg and Helena Hofbauer, Article 2 and Governments' Budgets (2014); Diane Elson, Budgeting for Women's Rights: Monitoring Government Budgets for Compliance with CEDAW, (UNIFEM, 2006); and Rory O'Connell, Aoife Nolan, Colin Harvey, Mira Dutschke, Eoin Rooney, Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (Routledge, 2014).
[10] Committee on the Rights of the Child, General Comment No. 19 on public budgeting for the realization of children's rights (art. 4) (2016) [24].
[11] Committee on the Rights of the Child, General Comment No. 19 on public budgeting for the realization of children's rights (art. 4) (2016) [26].
[12] Committee on the Rights of the Child, General Comment No. 19 on public budgeting for the realization of children's rights (art. 4) (2016) [81].
[13] This could include an assessment of any trends indicating the progressive realisation of rights using the maximum of resources available; any increase in funding over time in real terms; any trends that increase expenditure in a way which would benefit vulnerable groups; and any trends that result in a reduction in the allocation of funding which may impact on the realisation of human rights and, if so, an analysis of whether this would be permissible under international human rights law.
[14] Spending, or reduction of spending, may have disproportionate impacts on such groups and accordingly may engage the right to equality and non-discrimination.
[15] There are a range of resources to assist in the preparation of human rights assessments of budgets. See, for example, UN Office of the High Commissioner for Human Rights, Realising Human Rights through Government Budgets (2017); South African Human Rights Commission, Budget Analysis for Advancing Socio-Economic Rights (2016); Ann Blyberg and Helena Hofbauer, Article 2 and Governments' Budgets (2014); Diane Elson, Budgeting for Women's Rights: Monitoring Government Budgets for Compliance with CEDAW (2006); Rory O'Connell, Aoife Nolan, Colin Harvey, Mira Dutschke, Eoin Rooney, Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (Routledge, 2014).
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