Senate

Revised Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)

Statements of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Family Assistance and Child Support Legislation Amendment (Protecting Children) Bill 2018

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

SCHEDULE 1 - Child support amendments

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Part 1 - Interim periods

Overview

This Part amends provisions in child support and family assistance legislation to extend the current 14-week interim period that may apply before child support and family tax benefit (FTB) is adjusted to reflect a change in care of the child, where the care change is disputed.

From 1 January 2018:

•

For court-ordered care arrangements, the interim period will be extended:

•

for up to 52 weeks, if a disputed care change occurs within the first year of the court order, or

•

to 26 weeks, for older court orders if the person with increased care does not take reasonable action to participate in family dispute resolution.

•

For care arrangements in a non-enforceable agreement or parenting plan, the interim period will be reduced to four weeks if a disputed care change occurs after the first year of the agreement/plan and the person with increased care takes reasonable action to participate in family dispute resolution.

The changes made in this Part align with Recommendation 8 of the 'Australian Government response to the House of Representatives Standing Committee on Social Policy and Legal Affairs report: From conflict to cooperation - Inquiry into the Child Support Program' ('the Government response'), which was tabled in Parliament on 31 August 2016, in which the Government agreed that the current interim period should be extended in certain circumstances.

Human Rights Implications

This Part engages the following human rights:

Rights of parents and children

Article 9 of the Convention of the Rights of the Child (CRC) requires countries to ensure that a child is not separated from his or her parents against their will, except when authorities determine in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. This includes determinations about the child's place of residence where the parents are living separately.

This Part strengthens this particular right by reflecting court-ordered care arrangements (where a court has made an objective determination about the child's care, taking into account the child's best interests) for a longer period of time for the purpose of calculating child support and FTB. This removes any perceived financial 'benefit' to the person with increased care, as court-ordered care arrangements will be reflected for at least the first 52 weeks from the day they take effect. This Part also strengthens incentives for parents to comply with court orders and/or resolve the care dispute, by imposing a longer interim period in situations where the person with increased care does not participate in family dispute resolution. The current discretion to decide that an interim period does not apply, such as in cases of family violence, will be retained.

Right to Social Security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of every person to benefit from social security. Article 26 of the Convention on the Rights of the Child (CRC) recognises the right of a child to benefit from social security, taking into account the resources and circumstances of both the child and persons having responsibility for the maintenance of the child.

This Part amends existing provisions in child support and family assistance legislation that apply to interim periods, by extending the existing interim period. During the interim period, a paying parent must continue making child support payments, and either parent's entitlement to FTB is calculated, in accordance with the existing court order, parenting plan or written agreement. This may result in less or no FTB being paid to the person who actually has care of the child for an extended period, which limits this human right. However, these amendments also include incentives for the person with increased care to attend family dispute resolution to resolve the care dispute, which in many cases will result in a shorter interim period than would otherwise apply. In addition, one of the main objectives of these amendments is to better recognise court-ordered care arrangements, particularly where those arrangements were recently made. Given it is within the control of the person with increased care to resume the previous care arrangement, any limitation on this human right is reasonable, necessary and proportionate to achieve this objective.

Right to an adequate standard of living

Article 11 of the ICESCR recognises the rights of every person to an adequate standard of living. Article 27 of the CRC recognises the rights of a child to an adequate standard of living. Parents, or others responsible for a child, have the primary responsibility to secure within their abilities and financial capacity, the conditions of living necessary for a child's development. Countries are required to take appropriate measures to assist parents and others responsible for the child to implement this right. Countries are also required to take all appropriate measures to secure the recovery of maintenance for the child from the parents or other people having financial responsibility for the child.

During the interim period, a paying parent must continue making child support payments in accordance with the existing child support agreement, parenting plan or court order. This may result in the person with increased actual care of the child still receiving child support (or being required to pay child support) during the interim period based on the previously-agreed level of care, which may be considered a limitation on this human right. However, given it is within the control of the person with increased care to resume the previous care arrangement, any limitation on this human right is reasonable, necessary and proportionate to achieve the objective of better recognising recent court-ordered care arrangements and encouraging parents to attend family dispute resolution to resolve care disputes.

Conclusion

This Part is compatible with human rights. To the extent that it may have limited impacts on a person's right to social security, and a person's right to an adequate standard of living, the limitation is reasonable, proportionate to the policy objective and for legitimate reasons.

Part 2 - Amended tax assessments

Overview

This Part amends provisions in child support legislation to allow amended tax assessments to be used in child support assessments in a broader range of circumstances.

From 1 January 2018, an amended tax assessment will be taken into account in an administrative assessment of child support if it results in a higher taxable income, or, in the case of a lower taxable income, if certain conditions are met based on the reason for the amended tax assessment and the timeliness of action taken to obtain an amended tax assessment.

The changes made in this Part align with Recommendation 12 of the Government response, in which the Government agreed to consider amendments to allow amended tax assessments to be taken into account in a broader range of circumstances.

Right to an adequate standard of living

As detailed earlier, Article 27 of the CRC recognises the rights of a child to an adequate standard of living, which includes the recovery of maintenance for the child.

This Part broadens existing provisions in child support legislation that apply to amended tax assessments which means child support assessments will more accurately reflect the financial circumstances of both parents in a greater number of cases. These amendments simplify the procedures for amending tax assessments through automation (in many cases), so parents will no longer need to apply for a change of assessment or lodge an estimate of income to recognise their financial circumstances for the purposes of child support, provided they meet the requirements of the new provisions.

Conclusion

This Part is compatible with human rights as it does not raise any human rights issues.

Part 3 - Child support agreements

Overview

This Part amends provisions in child support legislation to remove the hurdles for courts to set aside child support agreements made before 1 July 2008, as well as allowing all child support agreements to be set aside without having to go to court if certain circumstances change.

From 1 July 2018 the following changes will apply:

•

For a child support agreement made before 1 July 2008 that transitioned as a binding agreement from 1 July 2008, a separate and less restrictive test will apply for a court to set aside the agreement (in comparison to binding agreements made from 1 July 2008).

•

For all child support agreements, new provisions will apply to terminate the agreement, or to suspend the effect of the agreement, if the parent who is entitled to child support for a child under the agreement ceases to be an eligible carer of the child.

The changes made in this Part align with Recommendation 12 of the Government response, in which the Government agreed to monitor the effect of the child support legislation and acknowledged that legislative clarification in relation to child support agreements could help to ensure consistent and equitable outcomes for separated families.

Human Rights Implications

This Part engages the following human rights:

Right to an adequate standard of living

As detailed earlier, Article 27 of the CRC recognises the rights of a child to an adequate standard of living, which includes the recovery of maintenance for the child.

The amendments in this Part will ensure that if a parent entitled to child support under a child support agreement ceases to be an eligible carer of the child and the other parent is an eligible carer, the agreement will be suspended or terminated so that child support is not paid to the parent who is not an eligible carer. This will avoid the need for parents to apply to a court to set aside a child support agreement where there has been an eligible carer 'role swap'. During a suspension period or after termination of a child support agreement, the child support formula provisions could apply which would more accurately reflect the care arrangements and financial circumstances of both parents.

Conclusion

This Part is compatible with human rights as it does not raise any human rights issues.

Part 4 - Child support overpayments

Overview

This Part amends child support legislation to provide greater equity in the collection of child support debts and overpayments, as well as making other consequential amendments.

From 1 July 2018, the following changes will apply:

•

The methods to enforce recovery of a child support overpayment from a payee will be expanded to align with the methods for recovering a child support debt from a payer.

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The basis for an overpayment to be recoverable will expand to ensure that all backdated reductions to a child support assessment collected will be recoverable.

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New backdating provisions will provide a fairer basis for retrospectively creating a child support overpayment or underpayment due to a change of circumstances. This will take into account the type of change of circumstances and the timeliness of action to notify of the change of circumstances.

The changes made in this Part align with Recommendation 22 of the Government response, in which the Government agreed to administratively collect child support overpayments in a wider range of circumstances, providing greater equity in the collection of child support debts and overpayments. The Government also agreed that in the collection of overdue child support or child support overpayments, an appropriate balance should apply between collecting amounts in the shortest time possible and ensuring parents are not placed into undue hardship.

Human Rights Implications

This Part engages the following human rights:

Right to freedom of movement

Article 12 of the International Covenant on Civil and Political Rights (ICCPR) provides the right for everyone to have liberty of movement and to be free to leave any country, including their own country. These rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant.

This Part seeks to correct the imbalance in which Departure Prohibition Orders (DPOs) currently apply to payer debts, but not to payee overpayments. DPOs will be extended to payees in an active or ended case with a child support overpayment, where the payee has not made satisfactory arrangements to repay the overpayment. Where a payee has the means to repay their debt, they should do so. It is considered that where a payee with a debt, not in an acceptable repayment arrangement but has the means to travel overseas, their travel movements should be restricted to enable them to enter into suitable arrangements to repay their debt. Debtors will continue to be allowed to travel overseas where they have wholly repaid the debt, or made a satisfactory arrangement to repay the debt.

Exceptions in place will allow for travel on humanitarian grounds or where the debtor's travel may be in Australia's best interests, through the issuance of a Departure Authorisation Certificate despite a DPO being in place.

To the extent that this Part limits the right to freedom of movement, this limitation is necessary and proportionate to the aims of ensuring consistency in the recovery of debts between child support payers and payees.

Right to Social Security

As detailed earlier, Article 9 of the ICESCR and Article 26 of the CRC recognises the right of a person and child to benefit from social security.

Where possible, recovery of payee overpayments will be through deductions from future child support payments or through cash payment arrangements. However, where this is not possible, this Part will allow deductions from social security, veterans' entitlements and family assistance payments to apply to the recovery of payee overpayments. This is consistent with the ability to make deductions from these payments for payer debts. In determining the amount of the deduction, the payee's financial circumstances will be considered to determine an appropriate rate of recovery.

To the extent that this Part limits the right to social security, this limitation is necessary and proportionate to the aims of ensuring consistency in the recovery of debts between child support payers and payees.

Conclusion

This Part is compatible with human rights. To the extent that it may limit the freedom of movement of a person, or the right to social security, the limitation is reasonable and proportionate to the policy objective and for legitimate reasons.

SCHEDULE 2 - Family Tax Benefit amendments

This Bill makes amendments:

a)

to reduce from 1 July 2018 an amount of around $28 fortnightly from the payment recipients of Family Tax Benefit Part A for each child in their family who does not meet immunisation or health check requirements;

b)

to repeal the current No Jab, No Pay and Healthy Start for School compliance measures;

c)

to make a technical amendment to the exemption provisions under section 6 of A New Tax System (Family Assistance) Act 1999; and

d)

to correct an overlooked amendment to the definition of "receiving", so that a social security recipient in an employment income nil rate period will no longer be regarded as receiving social security for family tax benefit (FTB) Part A rate purposes.

Human rights implications - Family Tax Benefit Part A immunisation requirements and health check requirement

Currently, families who receive Family Tax Benefit (FTB) Part A are subject to the immunisation requirements for a child aged one and over, and a health check requirement if they receive income support in the year their child turns four. Families who fail to meet the immunisation and/or health check requirement for their child are not eligible to receive the FTB Part A end of year supplement ($737.30 in 2017-18).

This Bill proposes to replace the current FTB Part A immunisation requirement arrangements with a real-time compliance response for families who do not immunise a child on time.

Where an FTB Part A child does not meet the immunisation requirements, the Department of Human Services will notify their family that their fortnightly entitlement will be reduced by around $28 per fortnight if their child does not receive the appropriate vaccinations. Families who receive FTB Part A by fortnightly instalments will have a 63 day grace period to get their child vaccinated before their rate of FTB Part A is reduced.

Where the child meets the immunisation requirements within the grace period their normal rate will be maintained. However, if they do not meet the immunisation requirement within the grace period, their fortnightly rate will be reduced from the day start of the grace period. On commencement of the measure, the maximum annual reduction is $737.30, which will be subject to the same indexation that FTB Part A is subject. The first indexation will not occur until 1 July 2019, consistent with the current indexation pause.

Where a family lodges a past period claim for FTB Part A and their child does not meet the immunisation requirements at the date of determination, their child's maximum rate of FTB Part A will be reduced by $737.30 for that income year.

The new immunisation requirement will now apply to FTB Part A children from two months of age.

This Bill also proposes to replace the current FTB Part A health check requirement arrangements.

From 1 July 2018, where a family does not meet the health check requirement, their fortnightly rate of FTB Part A will be reduced from the child's fifth birthday. The maximum annual reduction that can be applied to a family will be $737.30 (subject to indexation) for each child that does not meet the health check requirement, however, the family's annual reduction will be equivalent to $2.02 for every day (or around $28 per fortnight) in the income year the child turns four that the family was subject to the health check requirement. For example, if a family who did not meet the health check requirement was subject to the health check requirement for 100 days in the relevant income year, the maximum reduction would be $202.

This Bill ensures that the maximum annual amount a child's rate of FTB Part A can be reduced is $737.30. Where a family does not meet both the immunisation and health check requirement for a child, their maximum annual reduction is $737.30. While families will now be subject to a fortnightly reduction, they may now be eligible for the FTB Part A end of year supplement even if their child does not meet the immunisation and/or health check requirement.

Amendment to the definition of 'receiving'

These amendments correct an overlooked amendment to the definition of "receiving" in subsection 3(1) of the Family Assistance Act, so that a social security recipient in an employment income nil rate period (who is not actually being paid social security) will no longer be regarded as receiving social security for FTB rate purposes, from 1 July 2018.

This removes an unintended inequity between families, where those families incorrectly considered to be receiving social security can receive greater financial assistance from FTB Part A than families not in an employment income nil rate period, even though they have the same income.

This also recognises that a family with income, including employment income sufficient to reduce their social security payment to nil, has financial means greater than a family that is receiving a social security payment. The measure will encourage greater self-sufficiency by reducing perverse incentives for families to maintain contact with the income support system rather than move to higher labour force attachment.

These amendments reinforce these principles and ensure that all FTB Part A recipients are income tested consistently, regardless of whether they are in a social security employment nil rate period.

This Bill engages the following human rights:

The right to physical and mental health

The FTB Part A immunisation and health check requirements engage article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12 recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. In particular, State Parties shall take steps necessary for 'the reduction of ... infant mortality and for the healthy development of the child' and the 'prevention, treatment and control of epidemic, endemic, occupational and other diseases'. Similarly, article 24 of the Convention of the Rights of the Child (CRC) recognises the right of the child to the enjoyment of the highest attainable standard of health, and measures 'to diminish infant death and child mortality' and to 'combat disease'.

The Australian Government considers that immunisation is an important health measure for children and their families as it is the safest and most effective way to prevent the spread of many diseases. Encouraging vaccination aims to extend the benefit of immunisation within the Australian community.

The FTB Part A health check was introduced to encourage parents and carers receiving an income support payment to organise a health check for their child before the child starts school. Health checks may detect developmental delays and conditions, such as problems affecting hearing and vision, which are problems that make it more difficult for children to learn when they start school. These checks allow for early identification of health issues and intervention strategies before the child starts school.

Under current rules, families have up to twelve months from the end of an entitlement year to meet the immunisation and/or health check requirement. This means a family can meet the immunisation and/or health check requirement up to two years after the child was due to be vaccinated or access a health check. This Bill promotes the right to physical and mental health by introducing new rules for the current immunisation and health check requirements to prompt parents to vaccinate and access a health check for their children at the right age.

The right to freedom of thought, conscience and religion

Article 18 of the International Covenant on Civil and Political Rights provides that these freedoms may be subject to limitations as prescribed by law and which are necessary to protect public health or the fundamental rights and freedoms of others. The objection to vaccination can limit the rights of others to physical and mental health. As the most effective method of preventing infectious diseases, vaccination provides a necessary protection of public health.

This Bill does not propose to limit a parent or carer's right to choose not to vaccinate their child or access a health check. This Bill proposes to change the timing of the impact on a family's FTB Part A entitlement if they do not meet these requirements. While families will continue to have the right to decide not to vaccinate their children based on personal or philosophical beliefs, if they are doing so, their decision will not be endorsed by the provision of taxpayer funds in the form of family assistance payments.

These changes will improve the timeliness of the FTB Part A immunisation and health check requirements. Under current rules, families have up to twelve months after an entitlement year to meet the immunisation and/or health check requirement or they cease to be eligible for the FTB Part A end of year supplement. This Bill proposes to introduce a real-time impact on a family's rate of FTB Part A and reduce the maximum rate for a child of around $28 per fortnight (a maximum amount of $737.30 per year).

The right to social security

Article 9 of the ICESCR recognises the right of everyone to social security, and article 26 of the CRC recognises the right of every child to benefit from social security.

Immunisation requirements

Under current rules, if a child does not meet the immunisation requirement within twelve months of the end of an entitlement year, their family is not eligible for the FTB Part A end of year supplement for that child.

This Bill introduces changes to ensure families are prompted to immunise their child as soon as their child is overdue to be vaccinated. Where a family vaccinates their child before the end of a 63 grace period, their entitlement to FTB Part A will not be affected. Where a family does not vaccinate their child before the end of the grace period, their FTB Part A will be reduced by around $28 a fortnight until the child does meet the immunisation requirement.

Where a family claims FTB Part A by past period claim and does not meet the immunisation requirements when their claim is determined, the maximum annual reduction ($737.30) will apply. This is similar to the current immunisation requirement impact for families. While families will now be subject to a fortnightly reduction, they may now be eligible for the FTB Part A end of year supplement even if their child does not meet the immunisation and/or health check requirement.

Health Check Requirement

Under current rules, if that child does not meet the health check requirement within twelve months of the end of an entitlement year, their family is not eligible for the FTB Part A end of year supplement for that child.

This Bill proposes new rules, which reduce a family's fortnightly rate of FTB Part A from their child's fifth birthday. The maximum annual reduction that can be applied to a family will be $737.30 for each child that does not meet the health check requirement, however, the family's annual reduction will be equivalent to $2.02 for every day (or around $28 per fortnight) in the income year the child turns four that the family was subject to the health check requirement. For example, if a family who did not meet the health check requirement was subject to the health check requirement for 100 days in the relevant income year, the maximum reduction would be $202.

It is important to note that where families do not meet both the immunisation and the health check requirement they will still have a maximum annual reduction of $737.30 for that child.

The limitation to the right to social security is necessary and proportionate to the legitimate aim of promoting the right to physical and mental health. Families affected by this measure will still be eligible to receive fortnightly payments of FTB Part A and the end of year supplement to assist with the costs of raising children.

Conclusion

This Bill is compatible with human rights because it advances the protection of the right to physical health, and, to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.