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Australian Parliamentary Joint Committee on Human Rights |
Chapter 2
Concluded matters
2.1 This chapter considers responses to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.
2.2 Correspondence relating to these matters is available on the committee's website.[1]
Bills
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Purpose
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These six bills[3] seek to
appropriate money from the Consolidated Revenue Fund for services
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Portfolio
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Finance
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Introduced
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House of Representatives, 9 May 2023. Received Royal Assent on 19 June
2023
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Rights
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Multiple rights
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2.3 The committee requested a response from the minister in relation to the bills in Report 6 of 2023.[4]
2.4 These bills (now Acts) 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.
2.5 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).[5] The rights of people with disability, children and women may also be engaged where policies have a particular impact on vulnerable groups.[6]
2.6 Australia has obligations to respect, protect and fulfil human rights, including 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.[7]
2.7 Economic, social and cultural rights may be particularly affected by appropriation bills, because any increase in funding would likely promote such rights. 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. Retrogressive measures must be justified for the purposes of international human rights law.
2.8 The statements of compatibility accompanying these bills do not identify that any rights are engaged by the bills.
2.9 The committee sought the advice of the Minister for Finance as to whether the appropriation bills (now Acts) are compatible with Australia's human rights obligations, and particularly:
(a) whether and how the bills are compatible with Australia's obligations of progressive realisation with respect to economic, social and cultural rights;
(b) if there are any reductions in the allocation of funding that affect human rights obligations, whether these are compatible with Australia's obligations not to unjustifiably take backward steps (a retrogressive measure) in the realisation of economic, social and cultural rights; and
(c) whether and how the allocations are compatible with the rights of vulnerable groups (such as children; women; Aboriginal and Torres Strait Islander Peoples; persons with disabilities; and ethnic minorities).
2.10 The full initial analysis is set out in Report 6 of 2023.
2.11 The minister advised:
As set out in the statements of compatibility with human rights in explanatory memoranda to the Appropriation Bills, given the limited legal effect of the Appropriation Bills, they do not engage or otherwise affect the rights or freedoms relevant to the Human Rights (Parliamentary Scrutiny) Act 2011 (the Act). This position is consistent with that of successive Governments as previously expressed to the committee.
The detail of proposed Government expenditure and the Budget generally, appears in the Budget Papers rather than Appropriation Bills, with more specific detail provided in the Portfolio Budget Statements prepared for each portfolio and authorised by the responsible Minister. This allows the examination of proposed expenditure and budgetary processes through the Senate Estimates process.
The annual Appropriation Acts do not generally provide legislative authority for Commonwealth expenditure on particular activities. This authority is provided in other legislation or legislative instruments. It is more appropriate that an assessment of the impact of proposed Commonwealth expenditure on human rights, including those of vulnerable groups, be incorporated in explanatory documentation accompanying that other legislation, as per the current practice.
It is neither practicable nor appropriate for explanatory memoranda to the Appropriation Bills to include an assessment of overall trends in Australia's progressive realisation of economic, social and cultural rights; the impact of budget measures on vulnerable groups; and an assessment of human rights compatibility for key individual measures.
2.12 The minister stated that appropriation bills do not affect human rights and it is not appropriate for the explanatory memoranda to the appropriation bills to include an assessment of overall trends in Australia's progressive realisation of economic, social and cultural rights; the impact of budget measures on vulnerable groups; and an assessment of human rights compatibility for key individual measures. However, as set out in the initial analysis, without an assessment of the human rights compatibility of appropriation bills, it is difficult to assess whether, and to what extent, Australia is promoting human rights and realising its human rights obligations in respect of the measures proposed in the relevant budget. 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.
2.13 Further, the Office of the United Nations High Commissioner for Human Rights emphasises the close relationship between public budgets and human rights, and highlights instances in which international human rights oversight bodies have identified the importance of state budgets in their assessment of compliance with human rights obligations.[9] It states that:
If governments are to use the budget to effectively realize people’s rights, they need to understand the relationship of the budget to the human rights guarantees in their country’s constitution and laws, and in the...international human rights treaties the government has ratified. They need to understand in detailed and concrete terms how they can meet their human rights obligations in the way they raise revenue, allocate, spend and audit the budget.[10]
2.14 The appropriation of any funds, or more funds in comparison with earlier amounts, may promote human rights. The provision of no funds, or a reduction in funding in comparison with earlier appropriated sums, may limit rights. Such a limit will not necessarily be impermissible, but it would require that the limit be identified, and explanation given as to whether the limitation is reasonable, necessary and proportionate.
2.15 The minister stated that the details of proposed government expenditure appear in the Budget Papers, and that more specific details appear in Portfolio Budget Statements. However, these documents do not identify whether specific measures promote or limit human rights. For example, the 2023-24 Department of Social Services Portfolio Budget Statement states that increased funding was provided to the housing and homelessness program as part of the indexation framework.[11] However, it then indicates a reduction in funding relating to housing and homelessness outcomes pursuant to Appropriation Bill No. 1 in comparison with the prior financial year, and predicts further reductions in funding to the 2026-27 financial year.[12] The document does not explain whether a greater or lesser amount is being budgeted for this particular outcome overall, nor does it explain why the budgeted expenditure relating to housing and homelessness is intended to decrease, and how this is compatible with the right to housing (as an aspect of the right to an adequate standard of living).[13]
2.16 The minister also stated that legislation and legislative instruments provide legislative authority for Commonwealth expenditure on particular activities, and that it is more appropriate that an assessment of the impact of proposed Commonwealth expenditure on human rights, including those of vulnerable groups, be incorporated in explanatory documentation accompanying that other legislation. One source of legislative authority to spend appropriated funds is the Financial Framework (Supplementary Powers) Act 1997 and legislative instruments made pursuant to it. However, because these individual legislative instruments facilitate the spending of already appropriated money on specific activities, the statements of compatibility with human rights will typically state that they will promote human rights. They do not consider the individual measures within their broader budgetary context and as such, if there is a reduction in spending (via a lower amount of appropriation), this will not be reflected in the statement of compatibility that accompanies the legislative instrument that allocates the funding that is available.
2.17 For example, the Financial Framework (Supplementary Powers) Amendments (Social Services Measure No. 2) Regulations 2023 established legislative authority for the funding of two disability services for two years.[14] The explanatory statement states that both of these services had existed prior to this legislation.[15] The statement of compatibility states that funding these services for two years will 'ensure these important services continue to operate', and concludes therefore that the measure promotes rights of people with disability.[16] However, the explanatory materials do not explain whether, viewed in its broader context, this specific funding constitutes a real increase, decrease, or maintenance in funding. Consequently, in this example, it is not clear at what stage consideration of the level of funding given to these specific services would have identified a real increase or reduction over time. This raises questions as to the sufficiency of the assessment of the impact of proposed Commonwealth expenditure on human rights in legislation authorising the expenditure, post appropriation.
2.18 It follows from the fact that appropriations may engage human rights for the purposes of international human rights law, that 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);[17]
• the impact of budget measures (such as spending or reduction in spending) on vulnerable groups (including women, Aboriginal and Torres Strait Islander people, people with disability, children and ethnic minorities);[18] and
• key individual measures which engage human rights, including a brief assessment of their human rights compatibility.
2.19 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.[19]
2.20 The committee thanks the minister for their response. As the committee has consistently stated since 2013,[20] the appropriation of funds facilitates the taking of actions which may affect the progressive realisation of, or failure to fulfil, Australia's obligations under international human rights law. The committee considers that appropriations may, therefore, engage human rights for the purposes of international human rights law, because increased appropriation for particular areas may promote certain rights (such as housing, welfare, health or education) while reduced appropriations for particular areas may be regarded as retrogressive – a type of limitation on rights.
2.21 The committee acknowledges that appropriation bills may present particular difficulties given their technical and high-level nature as they generally include appropriations for a wide range of programs and activities across many portfolios. The committee notes the minister's advice that further information about expenditure can be found in budget statements and legislation authorising expenditure. However, as the budget itself is not legislation liable to this committee's scrutiny, and because individual legislation may not identify whether funding for specific measures is being increased or decreased, the committee considers that these are not sufficient alternatives.
2.22 The committee notes that it may not be appropriate to assess human rights compatibility for each individual measure in appropriation bills. However, the committee considers that the allocation of funds via appropriation 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. The committee considers that appropriation bills are a key opportunity for the Parliament (and for this committee) to consider the compatibility of these measures with human rights within the overall budgetary context.
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Suggested action
2.23 The committee's expectation is that statements of compatibility with
human rights accompanying appropriations bills should address
the compatibility
of measures which directly impact human rights and which are not addressed
elsewhere in legislation. In particular,
the committee expects that where the
appropriations bills propose a real reduction in funds available for expenditure
on certain
portfolios or activities that may impact human rights, the statement
of compatibility should identify this and explain why this is
a permissible
limit.
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2.24 The committee draws these human rights concerns to the attention of the minister and the Parliament for consideration when statements of compatibility are prepared for future appropriations bills.
[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Appropriation Bills 2023-2024, Report 8 of 2023; [2023] AUPJCHR 77.
[4] Parliamentary Joint Committee on Human Rights, Report 6 of 2023 (14 June 2023), pp. 9-15.
[5] Under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
[6] 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.
[7] See, International Covenant on Economic, Social and Cultural Rights.
[8] The minister's response to the committee's inquiries was received on 26 June 2023. This is an extract of the response. The response is available in full on the committee's website.
[9] UN Office of the High Commissioner for Human Rights, Realising Human Rights through Government Budgets (2017) p. 7.
[10] UN Office of the High Commissioner for Human Rights, Realising Human Rights through Government Budgets (2017) p. 12.
[11] Portfolio Budget Statements 2023–24, Budget Related Paper No. 1.14, Social Services Portfolio (2023) p. 18.
[12] Portfolio Budget Statements 2023–24, Budget Related Paper No. 1.14, Social Services Portfolio (2023) pp. 69–71.
[13] International Covenant on Economic, Social and Cultural Rights, article 11.
[14] See Financial Framework (Supplementary Powers) Amendments (Social Services Measure No. 2) Regulations 2023 [F2023L00544]. Of note, the explanatory statement indicates that the constitutional authority for the making of this legislative instrument includes the external affairs power to support implementing Australia's obligations under the UN Convention on the Rights of Persons with Disabilities.
[15] The explanatory statement notes that these services were established more than 20 years prior to this legislative instrument.
[16] Statement of compatibility, p. 1.
[17] 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.
[18] Spending, or reduction of spending, may have disproportionate impacts on such groups and accordingly, may engage the right to equality and non-discrimination.
[19] There are a range of resources to assist in the preparation of human rights assessments of budgets. See, e.g. 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 and Eoin Rooney, Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources (Routledge, 2014).
[20] 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; Report 6 of 2022 (24 November 2022) pp. 11-15.
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