Explanatory Memorandum
(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
SCHEDULES 1 AND 3 - SOCIAL SECURITY AND TECHNICAL 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.
Overview of the Schedules
Schedule 1 amends offence provisions in the Social Security (Administration) Act 1999 so that they also prohibit giving a false or misleading statement or document to Services Australia, not just to a particular officer. The offences will then capture circumstances when the information is not provided to a natural person. This will ensure that, for example, a recklessly false statement a person makes in an online claim that is assessed by an automated process can be a contravention of the offence provisions.
Schedule 3:
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- amends the Social Security Act 1991 and the National Disability Insurance Scheme Act 2013 to correct errors and repeal obsolete provisions; and
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- makes consequential amendments to other Acts.
Human rights implications
These Schedules engage the following human rights.
Right to freedom of expression:
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- Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right of freedom of expression.
Right to an adequate standard of living:
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- Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the rights of every person to an adequate standard of living.
Right to social security:
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- Article 9 of the ICESCR recognises the right of every person to benefit from social security.
Social security amendments (Schedule 1)
The amendments to the Social Security (Administration) Act limit the right to freedom of expression in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR). The expanded offences will prohibit a person from making a false or misleading statement, or providing a false or misleading statement, to Services Australia, even if the statement or document is not made or given to a particular officer. The very modest limitations imposed on the right to freedom of expression are necessary to ensure that misleading Services Australia, for example to obtain a benefit to which the person is not entitled, is prohibited. The limitations are a proportionate way of doing that, and consistent with article 19(3).
Technical amendments (Schedule 3)
The Social Security Act provides for welfare benefits, which are a major way that Australia implements rights to an adequate standard of living and rights to social security.
The amendments to the Social Security Act make technical amendments (to correct errors and repeal obsolete provisions) which ensure the Act operates as intended. These amendments enhance the right to an adequate standard of living and the right to social security.
The amendment to the National Disability Insurance Scheme Act corrects a punctuation error. It does not affect human rights.
Conclusion
These Schedules are compatible with human rights because the amendments either enhance human rights or do not affect human rights.
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
SCHEDULE 2 - DISCLOSURE FOR THE PURPOSES OF ROYAL COMMISSIONS
Schedule 2 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.
Overview of the Schedule
Schedule 2 requires a person served with a formal notice or summons by a Royal Commission, to produce documents or information, or give evidence, to comply with that requirement, even if it is protected by secrecy provisions in the A New Tax System (Family Assistance) (Administration) Act 1999, the Business Services Wage Assessment Tool Payment Scheme Act 2015, the Disability Services Act 1986, or the Social Security (Administration) Act 1999. This is subject only to any public interest immunity or similar claim.
The Secretary and other officers cannot ordinarily be compelled to produce information protected by the secrecy provisions to a court, tribunal, authority. It is possible for the Secretary (or a delegate) to agree to provide such information, but this cannot be compelled. While the Department of Social Services and Services Australia assist Royal Commissions by responding to notices, it is inappropriate that a Royal Commission, particularly a Royal Commission inquiring into Violence, Abuse, Neglect and Exploitation of People with Disability, to only have access to certain information subject to the agreement of the Secretary or a delegate. In order to avoid delay and increase public confidence in the conduct of a Royal Commission, these amendments will result in any information a Royal Commission formally seeks from the Secretary or an officer being required to be provided to the Royal Commission.
In addition to the limitations on compulsion, the production or disclosure of protected information would generally be subject to the confidentiality provisions of the relevant Act. Protected information is information about a person that is or was held in the records of the Department of Social Services or Services Australia. This information may be personal to people obtaining benefits or services from the Department of Social Services or Services Australia, or other people (for example family members), and generally may only be recorded, used or disclosed in accordance with Division 2 of Part 6 of the A New Tax System (Family Assistance) (Administration) Act, Division 3 of Part 5 of the Business Services Wage Assessment Tool Payment Scheme Act, Division 3 of Part III of the Disability Services Act, or Division 3 of Part 5 of the Social Security (Administration) Act.
The amendments will ensure that in giving such information to a Royal Commission, the Secretary and officers will not breach the confidentiality provisions of the relevant Act. Once disclosed to a Royal Commission, the Royal Commission's use and disclosure of the information for the purposes of undertaking its inquiry under the Royal Commissions Act 1902 will not breach the confidentiality provisions of the relevant Act. The Royal Commission will determine its own processes for handling information that is personal and sensitive. However, where it needs to use this information to effectively conduct its inquiry and make recommendations, or to allow others to consider contraventions of laws, it will be able to do so.
Human rights implications
Schedule 2 to this Bill engages the following rights under international human rights law:
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- the rights of people with disabilities, especially Article 16 of the Convention on the Rights of Persons with Disabilities ( CRPD );
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- the right to privacy in Article 17 of the International Covenant on Civil and Political Rights ( ICCPR ).
Rights of people with disability - Article 16 of the CRPD
Article 16 of the CRPD requires that States Parties take measures to protect persons with disabilities from all forms of exploitation, violence and abuse.
Schedule 2 to this Bill has been developed to ensure the credibility and effectiveness of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission).
The Disability Royal Commission is required to inquire into what governments, institutions and the community should do to prevent, and better protect, people with disability from experiencing violence, abuse, neglect and exploitation, having regard to the extent of violence, abuse, neglect and exploitation experienced by people with disability in all settings and contexts.
In doing so, the Disability Royal Commission is required to consider "the need to establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, documents or things, in accordance with section 6P of the Royal Commissions Act 1902 or any other relevant law".
By ensuring that the Disability Royal Commission has clear legislated power to compel the Department of Social Services and Services Australia to produce or give evidence, Schedule 2 to this Bill supports the effective functioning of the Disability Royal Commission in taking measures to protect persons with disabilities from all forms of exploitation, violence and abuse.
Right to privacy - Article 17 of the ICCPR
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. The right to privacy includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of private information. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances.
Schedule 2 to this Bill limits the existing privacy provisions of the relevant Acts by compelling protected information, including information about a person, to be provided to the Disability Royal Commission.
Schedule 2 to this Bill is a permissible limitation of Article 17 of the ICCPR because it meets the following test:
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- Legitimate objective: As outlined above, the purpose of Schedule 2 to this Bill is to support the Disability Royal Commission and in doing so, promote the rights of People with Disability, in particular Article 16 of the CRPD.
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- Rational connection: By facilitating the provision of information to the Disability Royal Commission, Schedule 2 to this Bill will help to ensure that the Disability Royal Commission has uncontested access to the information held by the Department of Social Services and Services Australia. This will ensure that the Disability Royal Commission can pursue matters, make decisions and prepare recommendations based on a correct and complete understanding of the facts available.
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- Reasonable, necessary and proportionate: Although Schedule 2 limits Article 17 of the ICCPR, it does so only in relation to formal notices issued by Royal Commissions. In carrying out its functions, the Disability Royal Commission is subject to the Royal Commissions Act, including subsection 6D(3), which gives a Royal Commission the power to direct that any evidence, document, or information shall not be published, or shall be published in such manner as the Royal Commission specifies. As such, the Royal Commission is able to make an equivalent determination to the Department of Social Services or Services Australia that particular protected information should not be published, or should be published with redactions. Schedule 2 to the Bill is reasonable and proportionate because the information which will be disclosed to the Royal Commission will be protected by a discretionary power similar to the power which is being limited.
In addition, any person compelled by a Royal Commission to produce documents or give evidence may decline to provide that document or evidence on the basis they have a reasonable excuse (such as legal professional privilege or public interest immunity). This ensures that information held by the Department of Social Services or Services Australia is in the same position as information held by any other agency served with a requirement by a Royal Commission. This ensures the limitation of Article 17 is proportionate.
During the consultation on the Terms of Reference for the Disability Royal Commission, clear and consistent feedback was that the Royal Commission should consider 'all settings and contexts'. There is a clear expectation that the Royal Commission should have the legislative power to compel the Department of Social Services and Services Australia to provide information. This further underscores that Schedule 2 to the Bill is reasonable and necessary.
Conclusion
Schedule 2 to the Bill advances the protection of the rights of people with disability in Australia consistent with the CRPD by supporting the Disability Royal Commission to carry out the functions outlined in its Letters Patent. In particular, the Disability Royal Commission will work to expose and prevent violence, abuse, neglect and abuse in the disability sector.
To the extent Schedule 2 to the Bill limits the right to privacy under Article 17 of the ICCPR, it is a permissible limitation. It does so only to the extent necessary to support the Disability Royal Commission in its legitimate purpose, or any Royal Commission with a legitimate interest in this information, and with the knowledge that protected information retains the same protections when held by the Disability Royal Commission.