Senate

Revised Explanatory Memorandum

(Circulated by the authority of the Minister for Families and Social Services, the Hon Paul Fletcher MP)

Statements of Compatibility with Human Rights

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

Social Services Legislation Amendment (Promoting Sustainable Welfare) Bill 2018

Schedule 1 - Social security amendments

Schedule 2 - Farm household support amendments

Schedule 3 - Family assistance amendments

Schedule 4 - Paid parental leave amendments

These Schedules are 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.

The following instruments are considered to be impacted by the Schedules:

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the International Covenant on Civil and Political Rights (ICCPR);

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the International Covenant on Economic, Social and Cultural Rights (ICESCR);

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the International Convention on the Elimination of All Forms of Racial Discrimination (CERD);

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the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);

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the Convention on the Rights of the Child (CRC); and

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the Convention on the Rights of Persons with Disabilities (CRPD).

Overview of the Schedules

The Schedules implement the Encouraging Self Sufficiency for Newly Arrived Migrants measure (the measure) announced in the 2017-18 Mid-Year Economic and Fiscal Outlook (MYEFO) and extended in the 2018-19 Budget with some subsequent adjustments.

As outlined in the MYEFO and Budget papers, Budget repair and a return to surplus remain a key priority for the Australian Government in order to maintain continued economic growth in Australia. In this context, it is important that Australia's welfare payments system provides the best possible encouragement for people to support themselves where they are able so that the system remains sustainable into the future. This includes migrants settling permanently in this country.

Waiting periods for newly arrived migrants already exist for a number of welfare payments. These waiting periods aim to encourage new permanent migrants to take steps to provide for their own financial support during their initial settlement period in Australia.

The measure will reinforce the Government's position that newly arrived migrants should be financially self-sufficient or rely on family members for support and should not expect to be immediately supported by Australian taxpayers.

This will enhance the residence-based nature of Australia's welfare payments system, ensuring that it remains fair, is targeted to those most in need of support and is sustainable in the long term so that assistance remains available to future generations.

This measure strikes a balance between promoting self-reliance for newly arrived migrants and providing appropriate safeguards for those in vulnerable circumstances.

These Schedules will:

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increase the existing newly arrived resident's waiting period (NARWP) for certain working age social security payments and concession cards from 104 weeks to 208 weeks, with the exception of carer payment (Schedule 1);

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apply a 208 week NARWP to other working age payments (parenting payment and bereavement allowance) that currently have a 104 week qualifying residence period (Schedule 1);

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introduce a new NARWP of 52 weeks for carer allowance (Schedule 1);

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increase the existing NARWP for farm household allowance from 104 weeks to 208 weeks (Schedule 2);

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introduce a NARWP of 52 weeks for family tax benefit Part A (Schedule 3); and

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introduce a NARWP of 104 weeks for parental leave pay and dad and partner pay (Schedule 4).

The effect of these Schedules will be that people granted a permanent residency visa (or in some cases, certain temporary visas) on or after commencement will not be able to receive the affected payments and concession cards until they have served any applicable NARWP.

There will be a range of exemptions from the NARWP, including for individuals and families in particularly vulnerable circumstances. Those exempt will have immediate access to the relevant payments or concession cards.

Human rights implications

These Schedules have considered the human rights implications particularly with reference to:

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the right to social security as contained within article 9 under the ICESCR;

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the right to maternity leave as contained within article 10(2) of the ICESCR and article 11(2)(b) of the CEDAW;

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the right to an adequate standard of living, including food, water and housing as contained within article 11 of the ICESCR;

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the right to health as contained in article 12(1) of the ICESCR;

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the right to equality and non-discrimination as contained in articles 2, 16 and 26 of the ICCPR;

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the right to freedom of movement as contained in articles 12 and 13 of the ICCPR;

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the right to protection against exploitation, violence and abuse as contained in article 20(2) of the ICCPR, and article 19(1) of the CRC and article 16(1) of the CRPD;

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the right to respect for the family as contained in articles 23 and 17(1) of the ICCPR;

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the rights of parents and children as contained in article 3 of the CRC and article 24(1) of the ICCPR; and

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the right to work and rights at work as contained in articles 6(1), 7 and 8(1)(a) of the ICESCR.

These Schedules are compatible with these human rights. To the extent that a human rights obligation is engaged or limited, the impact is reasonable and proportionate in achieving the objectives of the measure and the welfare payments system more broadly.

Right to Social Security

The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs.

The CRC requires countries to recognise the right of the child to benefit from social security. Benefits should take into account the resources and circumstances of the child and persons having responsibility for the maintenance of the child.

The primary purpose of Australia's welfare payments system - encompassing social security payments, family assistance payments and paid parental leave payments -is to provide financial support for individuals and families who are unable to fully support themselves. The welfare payments system is targeted to direct payments to those most in need and encourage those who are able to support themselves to do so.

The Australian welfare payments system is based on the key concepts of residency and need. For this reason, payments are already subject to residency qualification requirements designed to direct payments to people who are residing in Australia and who have an established and ongoing connection to Australia, that is, Australian citizens, holders of permanent visas and, in some limited circumstances, holders of certain temporary visas.

Waiting periods already exist for a number of welfare payments for newly arrived migrants as part of the residency requirements that apply to these payments. These waiting periods reflect the expectation that new permanent residents should be able to support themselves when they first settle here. The current waiting period of 104 weeks was introduced for these payments in 1997 and has not changed since then.

The waiting period applies primarily to new migrants settling in Australia under the skilled and family streams of Australia's migration program - those who are well placed to support themselves and their families, through existing resources, work or support from family already in Australia.

This is reflected in the eligibility criteria for permanent residency through the skilled and family visa streams of the migration program:

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The skilled visa stream provides a pathway for skilled overseas workers with skills needed in Australia to settle permanently in Australia with the expectation that they will support themselves and their families through work.

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The family visa stream provides a pathway for existing Australian citizens and permanent residents to bring family members to Australia with the expectation that they will support those family members.

It is important that Australia's welfare payments system remains sustainable into the future and continues to provide the best possible encouragement for people to support themselves where they are able. This includes migrants settling permanently in this country.

Returning the Budget to balance by living within our means remains a key element of the Government's economic plan. To achieve the Government's fiscal strategy, including a return to surplus in 2020-21, fiscally responsible decisions are required to keep spending under control.

In 2016-17, Australia's expenditure on welfare payments to individuals (including social security payments, family assistance payments and paid parental leave payments) was $109.5 billion, representing around a quarter of the overall Commonwealth Budget.

Given the substantial expenditure associated with the welfare payments system, maintaining the ongoing sustainability of the system is critical to the Government's fiscal strategy. The Encouraging Self Sufficiency for Newly Arrived Migrants measure - as reflected in this Bill - contributes to achieving this fiscal outcome.

In the context of the current fiscal environment, and the Government's priorities as outlined above, it is reasonable to increase the existing waiting period for some payments and apply a new waiting period for others in order to encourage new permanent migrants to support themselves and their families for longer when they first settle in Australia. This will reduce the burden placed on Australia's welfare payments system and improve its long-term sustainability.

The Schedules in this Bill do not affect eligibility for social security pensions or benefits, rather they affect the rules governing when those eligible for certain payments can start receiving their entitlements. The amendments focus on promoting self-support by requiring claimants to meet their own living costs during their initial settlement period.

The vast majority of people impacted by the changes are people who will come to Australia on skilled visas to work in a specific field. By the nature of their migration pathway they are well placed to support themselves and their families once they have moved here. In relation to migrants arriving on family related visas, these are people who have the support of family members and are making the decision to move here to be with them.

The impact of this measure will only be felt by those migrants who would have otherwise sought and received certain payments during the extended waiting period. The overall financial impact on affected individuals will depend on their circumstances and the payments they would otherwise have received.

Australia accepts up to 190,000 permanent migrants each year under the skilled and family visa streams. The majority of these migrants are able to support themselves and their families and do not seek to access welfare payments during their first four years in Australia.

The Productivity Commission' 2016 Migrant Intake into Australia report noted that permanent non humanitarian migrants who arrived between 2000 and 2011 and would have been subject to a two year waiting period (unless exempt) had lower take-up rates of income support in 2011 than the general population. In particular, only three per cent of permanent skilled migrants and 13 per cent of family migrants who arrived between 2000 and 2011 were receiving any form of income support in 2011, compared to 17 per cent for the general population. This research indicates that most new migrants who have come under the skilled and family streams of the migration program since the introduction of the two year waiting period have been able to support themselves without needing to rely on income support, both during and following their waiting period. This is consistent with the intention of the waiting period to encourage self-sufficiency for migrants coming to Australia.

The measure is not retrospective and will apply to people granted a permanent visa (or in some cases, certain temporary visas) on or after commencement. This timing is designed to enable individuals and families who may be seeking to migrate to Australia to make informed decisions when applying for a visa, including making arrangements to support themselves during the waiting period. Migrants already granted permanent residency (or a relevant temporary visa) before commencement will not be affected. This means that no one who is already eligible for or receiving payments will have those entitlements taken away.

Importantly, there is a comprehensive range of exemptions and other exclusions from the measure which continue to provide a safety net for those who find themselves in need. Some exemptions and exclusions apply to all payments, while others apply to specific payments based on the nature of the payment.

Humanitarian migrants and their family members will continue to be exempt from the existing waiting periods for all social security payments and will also be exempt from the new waiting periods for family tax benefit, parental leave pay and dad and partner pay. Temporary humanitarian-type visa holders will be exempt from the NARWP for special benefit, the low income health care card, family tax benefit, parental leave pay and dad and partner pay. These exemptions recognise that refugees and their family members are often particularly vulnerable and are not usually in a position to make plans for their own support prior to applying for a humanitarian visa.

There will also be exemptions for people whose circumstances change after becoming a permanent resident and who may no longer be able to support themselves as they planned.

Migrants who become a lone parent after becoming an Australian resident will continue to be exempt from the waiting period for parenting payment, newstart allowance and youth allowance. Those who receive an exemption from the waiting period for one of these payments will also be exempt from the waiting period for family tax benefit. Those who subsequently have a new child will also be able to transfer to parental leave pay or dad and partner pay if they are otherwise qualified. This provides parents who lose the support - financial and otherwise - of a partner with access to support for themselves and their children.

In addition, migrants who experience a substantial change in circumstances after the start of their waiting period, and are in financial hardship, will continue to be exempt from the waiting period for special benefit. Special benefit is a payment of last resort that provides a safety net for people in hardship who are not otherwise eligible for other payments. Special benefit provides a basic level of support, usually equal to newstart allowance (or youth allowance if the person is aged under 22 years). Supplementary payments such as rent assistance, may also be paid in addition to these basic rates. Recipients of special benefit are also entitled to an automatic health care card or pensioner concession card, depending on their circumstances.

Those who receive this exemption and have dependent children will also be exempt from the waiting period for family tax benefit.

Consistent with established policy (contained in the Guide to Social Security Law) this may include migrants:

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who are the victim of domestic or family violence;

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who experience a prolonged injury or illness and are unable to work, or whose partner or sponsor does;

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whose dependent child develops a severe medical condition, disability or injury; or

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whose sponsor or partner dies, becomes a missing person or is imprisoned leaving the migrant with no other means of support.

The exemption recognises that migrants who have made the decision to settle permanently in Australia and made plans to support themselves may experience a substantial change of circumstances that prevents them from realising those plans.

There are a number of new exemptions being introduced through this Bill in relation to the new payments that will be subject to a NARWP for the first time. This includes exemptions designed to enable the new NARWP to operate coherently with the existing exemptions outlined above:

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People with an family tax benefit eligible child will be exempt from the NARWP for the low income health care card. These families would previously have qualified for a health care card as part of their family tax benefit. The exemption means that they can still receive a concession card where eligible and access associated health concessions, including discounted items under the Pharmaceutical Benefits Scheme.

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People who are receiving a social security pension or benefit or farm household allowance (for example, because they are exempt from the NARWP for that payment) will also be exempt from the NARWP for family payments and carer allowance. This will allow the exemptions to operate consistently across welfare payments and those exempt can access both primary income support payments and supplementary assistance for dependent children and/or caring responsibilities where eligible.

Finally, New Zealand citizens on a Special Category Visa (SCV) will be exempt from the NARWP for family tax benefit Part A, parental leave pay and dad and partner pay. This exemption only applies for certain payments as SCV holders are generally not eligible for other payments. This exemption means that New Zealand citizens in Australia will continue to access the same benefits in recognition of the particular Trans-Tasman Travel arrangements between Australia and New Zealand. SCV holders who later move to a permanent visa will continue to be eligible for this exemption, ensuring they can continue to receive these payments while serving the NARWP for other payments.

In addition to the above exemptions, there are also some exclusions from the measure which apply to certain visa cohorts. These exclusions mean that these visa holders are not subject to the changes contained in this Bill and therefore remain subject to current rules.

Migrants who hold or are granted an Orphan Relative or Remaining Relative visa will be excluded from the changes to the NARWP for payments and concessions. They will continue to have a two year NARWP for working age payments and concession cards, rather than the increased four year NARWP, and will have no NARWP for family payments and carer allowance. This exclusion recognises that these visa holders are often young people who have refugee-type experiences and may be disproportionately disadvantaged compared to other skilled and family visa holders if subject to the measure.

SCV holders will also be excluded from the changes to the NARWP for concession cards. They will continue to have a two year NARWP for concession cards, rather than the increased four year NARWP. This exclusion is consistent with the above exemption from the NARWP for family payments and means that SCV holders will not be affected by any of the changes in the Bill.

In addition to these exemptions and exclusions, the NARWP applied for family tax benefit Part A will not affect a person's entitlement to double orphan pension or stillborn baby payment. This means that migrants who have a stillborn child or are caring for a child who has lost both its parents will still have access to financial support to assist them in meeting any costs associated with these circumstances.

Families will also have immediate access to family tax benefit part B, where eligible, as no waiting period is being introduced for this payment. This recognises that this payment provides additional support for single parent and single income families to assist them to balance work and family responsibilities, particularly when their children are young.

These exemptions and exclusions provide a safety net for potentially vulnerable individuals and families, including those who may be less able to support themselves. These exemptions and exclusions strike a balance between promoting self-reliance for migrants and providing appropriate safeguards for those in vulnerable circumstances.

As noted above, the amendments in these Schedules focus on encouraging people making the decision to settle permanently in Australia to take steps to provide for their own financial support during their initial settlement period. In this way, the amendments help to target access to payments to those most in need, with appropriate safeguards and exemptions for those unable to support themselves as planned.

To the extent that this measure places any limitation on the rights to social security, this limitation is reasonable and proportionate in the context of achieving these fiscal objectives that benefit the nation, while ensuring a safety net is available for the most vulnerable.

In addition, permanent migrants will still have access to broader Government-funded services to support their integration and wellbeing, including health care and education services. Access to child care services will also be available for those who work or study and have children.

Right to maternity leave

The right to maternity leave includes an entitlement for working mothers to paid leave or social security benefits during a reasonable period before and after childbirth. It also requires countries, as a measure of prevention of discrimination against women, to provide maternity leave with pay or with comparable social benefits without loss of former employment or seniority. The right to maternity leave is contained in article 10(2) of the ICESCR and article 11(2)(b) of the CEDAW.

The Paid Parental Leave Act 2010 provides for the Paid Parental Leave scheme, comprised of Parental Leave Pay and Dad and Partner Pay, which complements the entitlement to unpaid leave under the National Employment Standards in the Fair Work Act 2009.

The Government remains committed to assisting parents to balance their work and family responsibilities through a range of programs and payments. However, this must be balanced with the responsibility to keep family assistance and social security payments well targeted and sustainable into the future.

The changes detailed in this Bill do not interfere with the existing rights and protections under the Fair Work Act 2009, including access to 12 months of unpaid parental leave without loss of employment or seniority within the workplace. The changes also do not limit parents' ability to access employer-provided leave following the birth or adoption of a child. In addition, parents who do return to work or study or other approved activities and are using approved child care will continue to have access to child care subsidies.

Waiting periods for new migrants already exist for a number of welfare payments, including parenting payment. These waiting periods reflect the expectation that new permanent residents should be able to support themselves. Introducing a waiting period for parental leave pay and dad and partner pay is consistent with the existing principle of self-reliance for new migrants.

While it is acknowledged that the upbringing of children requires a sharing of responsibility between men, women and society as a whole, it is reasonable to expect that migrants who make the decision to have a child during their initial settlement period should also allow for the costs of supporting themselves and their children during the waiting period.

The Australian welfare system is targeted so that those who most need help receive it. In order to sustain this, those who can support their children are expected to do so.

The majority of newly arrived migrants in scope for this measure are expected to be able to provide for themselves and their family members during the waiting period, as they are settling in Australia through the skilled and family streams of the migration program. These migrants are well placed to support themselves through work, existing resources or family support. Most are also expected to be able to make informed decisions about growing their families within the settlement period.

This measure does not affect humanitarian migrants and their family members, acknowledging these people are often particularly vulnerable and may have less capacity to plan for their own support prior to coming to Australia.

The duration of the waiting period for parental leave pay and dad and partner pay is set at two years, and once the waiting period has been served, and migrants have had an opportunity to contribute economically and socially to the nation, they will be subject to the same eligibility requirements as any other citizens for social welfare and family payments.

While the measure introduces a new waiting period for parental leave pay and dad and partner pay, migrants who have a baby born in the six months after commencement, and would otherwise be eligible for payment, will still be able to access these payments for that baby. This will mean that prospective parents who may already be pregnant prior to commencement and have made leave plans already based on the current rules are not disadvantaged.

In addition, as outlined above, there are a number of key exemptions to the NARWP for families with children who experience a change of circumstances and are unable to support themselves as originally planned, including those who become a lone parent after arrival and no longer have the support of their partner, and those in financial hardship.

These exemptions provide migrants in these circumstances, particularly migrant women, with access financial support through payments, such as parenting payment or special benefit, where eligible. Those who are granted one of these payments under an exemption will also be exempt from the effect of the waiting period for the Paid Parental Leave Scheme, family tax benefit and carer allowance. This means that migrants in these circumstances who have dependent children or caring responsibilities for a person with disability can also access additional support where eligible. For example, a woman granted special benefit because she is in hardship due to a change in circumstances would also be able to receive family tax benefit for any eligible children and would also be able to transfer to parental leave pay if she has a new baby and meets all the requirements.

Many employers, including the Australian, state and territory governments also provide paid parental leave entitlements which are unaffected by the measure. In addition, the Fair Work Act 2009 also provides for an entitlement of up to 12 months of unpaid parental leave under the National Employment Standards.

Access to a range of other government funded payments and services, including childcare subsidies, health care and education has also been retained for newly arrived migrants.

Families will also have immediate access to family tax benefit Part B, where eligible, as no waiting period is being introduced for this payment. This recognises that this payment provides additional support for single and single income families to enable them to balance work and caring responsibilities, particularly when their children are young.

Targeting expenditure remains an essential part of balancing the distribution of available resources with the most effective measures for addressing barriers and creating opportunity.

To the extent that this measure places any limitation on the right to maternity leave, this limitation is reasonable and proportionate in the context of encouraging self-reliance by new migrants and maintaining the ongoing sustainability of the Paid Parental Leave Scheme and the welfare payments system more broadly. The measure provides for a safety net for the most vulnerable through a comprehensive range of exemptions and transitional arrangements; and does not affect other non-Government funded parental leave which will continue to be available.

Right to an adequate standard of living, including food, water and housing

This measure engages the right to an adequate standard of living, including food, water and housing, contained in Article 11 of the ICESCR. The right to an adequate standard of living, including food, water and housing provides that everyone is entitled to adequate food, clothing and housing and to the continuous improvement of living conditions.

The amendments contained in this measure are an extension of the Government's existing policy on waiting periods and strengthen the expectation that new permanent residents should be able to support themselves upon arrival. To the extent that the measure impacts on a person's right to an adequate standard of living, including food, water and housing, by virtue of this measure, the impact is limited.

Australia's migration system is focused on skilled migration to attract people with the skills and talent to help build Australia's economy, increase productivity and create jobs. That means the majority of new permanent skilled migrants are coming here to work and will be well placed to support not only themselves, but also their families.

As noted above, research by the Productivity Commission indicates that the majority of new skilled and family migrants can and do support themselves when they first settle in Australia.

There is a comprehensive range of exemptions, including for those who are less able to plan for their own support prior to coming to Australia (such as humanitarian entrants and their families) or experience a change in circumstances that means they can no longer support themselves as planned. These exemptions provide a safety net through access to payments such as special benefit (and, where the person has children, family tax benefit Part A) to those people left without other means of support for reasons beyond their control so they are supported to meet their basic living costs.

The potential limitations on this right are considered proportionate to the policy objective of encouraging self-support in order to keep the system sustainable while providing exemptions for eligible people whose circumstances change and no longer have the capacity to support themselves.

Right to health

The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health and is contained in article 12(1) of the ICESCR.

The Schedules engage the right to health through the extension of the waiting period for the low income health care card (HCC) and commonwealth seniors health card from two to four years. The Schedules also engage the right to health where entitlement to an automatically issued HCC is delayed because the payment to which it is linked is subject to a waiting period.

Delayed access to a HCC will not affect entitlement to benefits under the Medicare Benefits Scheme (MBS) and the Pharmaceutical Benefits Scheme (PBS). MBS benefits include a Medicare card, free treatment for public patients in a public hospital and rebates on MBS listed health services. PBS benefits include access to subsidised medicines through a 'co-payment', with further subsidies applying once a person has reached the relevant PBS safety-net threshold. All permanent visa holders, including those subject to a waiting period for welfare payments, will continue to have access to the MBS and PBS benefits (these benefits are also available to certain temporary visa holders).

It will, however, affect entitlement to the additional concessional benefits available to concession card holders. This includes access to bulk billing incentives, a lower Extended Medicare Safety Net, a lower PBS co-payment amount and a lower PBS safety-net threshold.

However, the vast majority of people impacted by this measure are people migrating to Australia under the skilled migration program to work in a specific field. By the nature of their migration pathway they are well placed to support themselves and their families once they have moved here.

There are a range of exemptions that enable potentially vulnerable migrants who have limited means and may face difficultly meeting health costs without concessional assistance to access a concession card.

Humanitarian entrants and their family members will be exempt from all waiting periods for social security payments and concession cards and will therefore retain access to the associated additional concessional health benefits.

New Zealand citizens on a SCV and holders of other certain other temporary visas (Temporary Protection Visas and Safe Haven Enterprise Visas) will be exempt from the waiting period for family tax benefit Part A , meaning they can continue to access this support if they have eligible children. Those on low incomes will also retain access to an automatic HCC as part of their family tax benefit entitlement.

Certain visa cohorts will be excluded from the changes to payments and/or concession cards. Orphan Relative and Remaining Relative visa holders will be excluded from the changes to the NARWP for all payments and concession cards. SCV holders will be excluded from the changes to the NARWP for the health care card (low income) and seniors health cards. These exclusions mean that these visa holders will not have their waiting periods increased and will not have to wait longer to access a concession card (whether linked to payment receipt or a stand-alone card, such as the health care card (low income)) and associated health concessions.

Families who have a family tax benefit eligible child but are serving a waiting period for family tax benefit Part A will be exempt from the waiting period for the low income HCC. This will allow low-income families to claim this card immediately and access the associated concessional health benefits.

Individuals and families who experience a change of circumstances and find themselves in hardship will be exempt from the waiting period for payments such as special benefit or parenting payment (depending on the change of circumstances) and will also have access to a concession card as part of their payment.

With regards to protections against infectious diseases, the Government has a clear position that immunisation is the safest way to protect children from vaccine-preventable diseases.

To give children the best protection against diseases such as whooping cough and measles, the Government is aiming towards an interim immunisation coverage target of 95 per cent for childhood vaccination rates. This target provides sufficient herd immunity to prevent the transmission of vaccine-preventable diseases and the

No Jab, No Pay policy that applies to family tax benefit is helping to achieve this.

Through awareness raising initiatives, the Government is encouraging all parents to immunise their children. The No Jab, No Pay provides financial incentives for parents to have their children appropriately immunised by making access to certain payments, such as family tax benefit end-of-year supplements and child care subsidies, contingent on meeting immunisation requirements. Families not in receipt of family tax benefit Part A (because they are serving a waiting period) will not be impacted by the financial incentives of immunising their children that the No Jab, No Pay policy provides. However, they may be covered when enrolling children in childcare and/or school through state and territory initiatives. This will continue to provide incentives for migrant families to make sure that their children are appropriately immunised. In addition, catch-up schedules are available to migrant families so that they can get their children fully immunised.

In addition, permanent migrants will still have access to broader Government-funded services, including health care services.

Right to freedom of movement

The right to freedom of movement includes the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which you are a citizen. The right to freedom of movement is contained in articles 12 and 13 of the ICCPR.

While the measure builds on existing waiting periods required before a migrant can access social security, it does not impose restrictions or conditions on an individual's right to enter or leave Australia, or move freely within Australia.

The Schedules may place increased pressure on migrants to remain in the location of their employment, subsequently restricting their freedom of movement. However, any limitations are considered reasonable and proportionate and would be of a temporary nature, limited to the duration of the waiting period.

The measure is designed to maintain the sustainability of Australia's welfare system, and to encourage those seeking to settle permanently in Australia to make sure they have the capacity to support themselves. It is not intended to reduce the numbers of migrants coming to Australia, and no variation in migration patterns is predicted as a result of the amendments.

In addition, individuals and families take into account a number of different factors when deciding to migrate permanently to another country. This includes economic, demographic, social, political, cultural and environmental factors as well as the characteristics of the destination country. These amendments impact on only part of a much bigger consideration for potential migrants.

Right to equality and non-discrimination

This measure engages the rights of equality and non-discrimination contained in articles 2, 16 and 26 of the ICCPR. Equality affirms that all human beings are born free and equal. Equality presupposes that all individuals have the same rights and deserve the same level of respect. All people have the right to be treated equally.

Non-discrimination is an integral part of the principle of equality. It ensures that no one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth. In addition to those grounds, discrimination on certain other grounds may also be prohibited. These grounds include age, nationality, marital status, disability, place of residence within a country and sexual orientation.

These Schedules engage the right to equality and non-discrimination in that they will result in both direct and indirect differential treatment on the basis of national origin, visa class and sex.

Under existing rules, humanitarian migrants and their families are exempt from the waiting periods for all social security payments, and will continue to be exempt under the measure. They will also be exempt from the new waiting periods for family tax benefit, parental leave pay and dad and partner pay.

These exemptions acknowledge that welfare payments are key to the successful long term settlement of humanitarian entrants in particular as they are particularly vulnerable, generally have no other means of support and are not usually in a position to make plans for their own support prior to applying for a humanitarian visa.

The differentiation of treatment conferred to humanitarian migrants is considered legitimate for the purpose of addressing the interests of a particularly disadvantaged community group.

Orphan and Remaining Relative visa holders are also excluded from changes to all payments in recognition that these visa holders are young people who have often experienced refugee-type experiences or other trauma. The differential treatment for these visa holders is considered legitimate on the basis that this cohort may be disproportionately disadvantaged compared to other skilled and family visa holders if subject to the changes.

Under the Trans-Tasman Travel Arrangement (TTTA) introduced in 1973, Australian and New Zealand citizens are able to enter each other's country to visit, live and work indefinitely, without the need to apply for prior authority. New Zealand is the only country in the world that has such an arrangement with Australia.

In recognition of the unique arrangements between Australia and New Zealand under the long-standing TTTA, New Zealand citizens in Australia on a SCV will be exempt from the waiting period for family payments and will not have their current two year waiting period for certain concession cards increased. This means that New Zealanders on a SCV will retain access to the same entitlements they can currently access.

To the extent that differentiation of treatment on the basis of national origin is applied to this cohort, it is considered reasonable and proportionate and reaffirms the positive and important role that freedom of Trans-Tasman movement plays in strengthening the bilateral relationship between Australia and New Zealand.

This measure will apply a NARWP to new payment types, including family tax benefit Part A, parental leave pay, dad and partner pay and carer allowance. These changes are reasonable and proportionate to the objective of keeping Australia's welfare payments system sustainable.

By the nature of the payments, the introduction of a waiting period for family tax benefit Part A, parental leave pay and dad and partner pay will only affect those migrants with dependent children or those migrants who are planning to have children.

In addition, while these payments and carer allowance are not targeted specifically to women, it is acknowledged that women are more likely to access these payments as they often bear the majority of caring responsibilities for children and/or family members with a disability. As a result, women are more likely to have a NARWP applied in relation to these payments.

Consideration was also given to whether these changes, in particular, disproportionately affect women who are more likely to experience family and domestic violence. While the measure does not directly target women or families, to address the above mentioned concerns the measure contains a number of key safeguards that provide appropriate protections for this cohort.

For example, migrants who become a lone parent after becoming an Australian resident will continue to be exempt from the waiting period for parenting payment, newstart allowance and youth allowance. Migrants who experience another substantial change of circumstances after the start of their waiting period, and are in financial hardship, will also continue to be exempt from the waiting period for special benefit. Those who receive one of these exemptions and who have dependent children will also be exempt from the waiting period for family tax benefit.

Also, migrants who have a baby born in the six months after commencement, and would otherwise be eligible for parental leave pay and dad and partner pay, will still be able to access these payments for that baby.

While these exemptions from the waiting period are not specifically targeted to women, women are likely to benefit in particular given some circumstances that attract an exemption - for example becoming a single parent or experiencing a change in circumstances such as domestic violence - are more likely to be experienced by women.

The comprehensive range of exemptions and safeguards provide migrants, particularly migrant women, with access to payments where they find themselves in hardship.

As the majority of newly arrived migrants are from culturally and linguistically diverse (CALD) backgrounds, these Schedules will more significantly impact this cohort. While it is acknowledged that, generally, people from CALD backgrounds can face additional barriers to finding work, the vast majority of people impacted by this measure are people migrating to Australia under the skilled migration program to work in a specific field. By the nature of their migration pathway they are well placed to support themselves and their families once they have moved here.

This measure supports the Government's ongoing fiscal strategy to balance the Budget and enable continued economic growth, while providing a safety net for vulnerable cohorts. To the extent that the differential treatment of certain groups under this measure constitutes a limitation on the right to equality and non-discrimination, this limitation is considered to be reasonable and proportionate to the legitimate objective of achieving these fiscal objectives, by ensuring that newly arrived migrants meet their own living costs for a reasonable period before receiving Government assistance, in order to keep the system sustainable into the future.

Given the exemptions available, this measure is the least restrictive way of applying consistent rules and expectations for new migrants in order to improve the sustainability of the welfare payments system, both in the short and longer term.

Protection against exploitation, violence and abuse

Numerous provisions in human rights treaties require countries to take measures to protect persons from exploitation, violence and abuse. The right to protection against exploitation, violence and abuse is contained in article 20(2) of the ICCPR, and article 19(1) of the CRC and article 16(1) of the CRPD.

The UN Committee on the Elimination of all Forms of Discrimination against Women has stated that gender-based violence, including domestic violence is a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men.

The Schedules provide exemptions to the waiting periods for special benefit and family tax benefit Part A (where relevant) for those migrants who experience a substantial change in circumstances, and are in financial hardship, following their arrival. This critical safety net is intended to cater for circumstances such as those who experience domestic violence, and their children.

Right to respect for the family

The right to respect for the family and freedom from interference with the family is contained in articles 23 and 17(1) of the ICCPR.

While the measure builds on existing waiting periods required before a migrant can access social security, it is not designed to impose restrictions or conditions which will impact on a dependent child's welfare.

The vast majority of people impacted by the changes are people who will come to Australia on skilled visas to work in a specific field. By the nature of their migration pathway they are well placed to support themselves and their families once they have moved here. In relation to migrants arriving on family related visas, these are people who have the support of family members and are making the decision to move here to be with them.

Safeguards have been included to enable parents to access financial support should their family experience a substantial change in circumstances resulting in financial hardship. The measure provides exemptions to the waiting periods for special benefit and family tax benefit Part A (where relevant) for those migrants who experience a substantial change in circumstances, and are in financial hardship, following their arrival. This critical safety net is intended to cater for circumstances such as those who experience domestic violence, and their children. Family tax benefit part B will also be available (where relevant).

Rights of parents and children

In addition to the rights enjoyed by all persons under human rights treaties, parents and children enjoy special rights, particular to their status. The rights are contained in article 3 of the CRC and article 24(1) of the ICCPR.

This measure has particular impacts on:

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best interests of the child;

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responsibilities, rights and duties of parents; and

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refugee children.

Many permanent skilled and family visa types also allow applicants to include dependent children in their visa applications. In relation to the measure's impact on the best interests of the child, it is reasonable to expect that permanent migrants choosing to bring their family with them to Australia should be in a position to support their family as well as themselves during their initial period of settlement.

The measure provides exemptions to the waiting periods for special benefit and family tax benefit Part A (where relevant) for those migrants who experience a substantial change in circumstances, and are in financial hardship, following their arrival.

In addition, the NARWP applied for family tax benefit Part A will not affect a person's entitlement to double orphan pension or stillborn baby payment. This provides migrants who have a stillborn child or are caring for a child who has lost both its parents with access to financial support so they can meet any costs associated with these circumstances.

As outlined above, families will also have immediate access to family tax benefit Part B, where eligible, as no waiting period is being introduced for this payment. This recognises that this payment provides additional support for single and single income families to enable them to balance work and caring responsibilities, particularly when their children are young.

In relation to the responsibilities, rights and duties of parents, the CRC recognises the principle that both parents have common responsibilities for the upbringing and development of the child. It also provides that there should be appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities, in particular to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.

Access to childcare subsidies will be retained for newly arrived migrants to help families to participate in work, study, training or other recognised activities. In addition there is a range of government funded payments and services which are made available to support participation, social cohesion, integration and wellbeing, such as health care and education, which contribute to safeguarding these rights.

Also, migrants who have a baby born in the six months after commencement, and would otherwise be eligible for parental leave pay and dad and partner pay, will still be able to access these payments for that baby.

The rights relating to refugee children (including their families) are addressed through the continuation of existing exemptions from waiting periods for all social security payments and additional exemptions from the new waiting periods for family tax benefit, parental leave pay and dad and partner pay.

The limitations on access to social security are considered reasonable and proportionate to achieving the objective of enhancing the residence-based nature of Australia's social security system, ensuring that it remains fair, is targeted to those most in need of income support and is sustainable in the long term so that social security remains available to future generations of Australians.

Right to work and rights at work

The right to work includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts. Rights in work include the enjoyment of just and favourable conditions of work and to form and join trade unions. The right to work and rights in work is contained in articles 6(1), 7 and 8(1)(a) of the ICESCR.

Permanent visa holders under the skilled and family migration program, including those subject to a waiting period for welfare payments, will continue to have the right to work in Australia and will continue to be covered by the workplace protections provided by federal legislation, such as the Fair Work Act 2009, as well as state and territory based legislation.

Most newly arrived migrants are not currently entitled to job seeker payments, such as newstart allowance for two years after becoming an Australian resident. Under the measure, this will be extended to four years. However, these migrants will still be able to volunteer for jobactive services for up to six months to help them find a job.

Migrants will also be able to access the child care subsidy to help families to participate in work, study, training or other recognised activities.

These arrangements mean that affected migrants will continue to be eligible for assistance to find and maintain work, as well as reasonable conditions and protections in the workplace.

Conclusion

These Schedules are compatible with human rights. To the extent that a human rights obligation is engaged or limited, the impact is for a legitimate objective, and is reasonable, necessary and proportionate as outlined above.

Australia is a prosperous country with strong social and economic foundations. To maintain this, it is important that Australia's welfare payments system remains sustainable into the future and provides the best possible encouragement for people to support themselves where they are able.

While the Australian welfare payments system is already highly targeted, prudent and reasonable changes, such as those contained in this Bill, are required to maintain the stability and sustainability of the system in the longer term.

These Schedules support the Government's commitment to a sustainable, equitable and needs-based social security system. Introducing these changes to waiting periods will encourage new migrants to put arrangements in place to support themselves during their initial settlement period. This will, in turn, support the stability and sustainability of Australia's social security system.

It is reasonable to expect that people choosing to become permanent residents of Australia should be able to support themselves and their families through their existing resources, through work or through support from family members already in Australia.

The amendments in these Schedules will promote this by strengthening existing waiting periods for some Australian welfare payments and introducing new waiting periods for several others.

This is the least restrictive approach to achieving the reasonable objectives of encouraging self-support for new migrants, reducing the burden placed on Australia's welfare payments system and ensuring its ongoing sustainability.

Importantly, a number of exemptions and protections have been incorporated into the Schedules to enable potentially vulnerable groups to be appropriately supported through the welfare payments system.

To the extent that this measure places any limitation on a human rights obligation, this limitation is reasonable and proportionate in the context of achieving these fiscal objectives that benefit the nation, while ensuring a safety net is available for the most vulnerable.

Schedule 5 - Other amendments

The amendments insert Schedule 5 which amends the A New Tax System (Family Assistance) Act 1999, Paid Parental Leave Act 2010 to implement:

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the Consistent Treatment for Families Receiving Family Tax Benefit Part A measure announced as part of the 2017-18 Budget, which was originally contained in the Social Services Legislation Amendment (Payment Integrity) Bill 2017

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elements of the Family Tax Benefit and Paid Parental Leave - Maintaining Income Thresholds measure announced as part of the 2017-18 Mid-Year Economic and Fiscal Outlook, which was originally contained in the Social Services Legislation Amendment (Maintaining Income Thresholds) Bill 2018.

Overview of the measures

The amendments introduce a new taper structure for the maximum rate of family tax benefit Part A which provides consistency in how family tax benefit Part A is income tested for families with income above the higher income free area. Under these amendments, the maximum rate will be reduced by 20 cents for every dollar earned between the family tax benefit Part A lower income free area (currently $53,728) and higher income free area and 30 cents for every dollar earned above the higher income free area.

To balance the impact of increasing the taper rate for some families with higher incomes the amendments also provide a one-off increase to the family tax benefit Part A higher income free area to $98,988. The family tax benefit Part A higher income free area will be set at the new higher level until 30 June 2021. Together these changes create a simpler, fairer and better targeted system.

The measure also pauses indexation to the family tax benefit Part B primary earner income limit, the parental leave pay and dad and partner pay individual income limits.

Maintaining the higher income limits for family tax benefit Part B, parental leave pay and dad and partner pay at their current levels until 30 June 2021 will target Government assistance to low and middle-income families.

This measure will result in savings and help to keep family and parental payments sustainable into the future.

Human rights implications

These amendments are likely to engage the right to social security.

Article 9 of the ICESCR recognises 'the right of everyone to social security'. That right requires a social security system to be established, and states that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education. Article 26 of the CRC ensures that right to 'every child' and requires that 'the benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child'.

These amendments maintain the current income test that applies to the higher income limits for family and parental payments. These amendments will not affect the fortnightly assistance currently provided to low and middle-income families.

Lifting the family tax benefit Part A higher income free area from $94,316 to $98,988 and implementing a 30 per cent taper rate for all families with income above the higher income free area provides a more equitable and consistent method of means testing between families with the same income.

Families cease to be eligible for family tax benefit Part B once the primary earner's income exceeds $100,000 per year, and parents cease to be eligible for parental leave pay or dad and partner pay once their income reaches $150,000 per year.

Families at these income levels are considered to have reasonable levels of private income which would enable them to maintain their current living standards.

These amendments are compatible with human rights because they advance the protection of human rights. In particular, increasing the family tax benefit Part A higher income free area will provide more support to some working families while reductions through increasing the taper rate only impacts families with higher income and greater capacity for self-provision. These changes contribute to a fairer, simpler, better-targeted and more sustainable family payment system. To the extent that these changes limit access to family and parental payments, the impact is for a legitimate objective and is reasonable, necessary and proportionate as outlined above.