House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Families, Community Services and Indigenous Affairs, Minister for Disability Reform, the Hon Jenny Macklin MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

The purpose of the Bill is to introduce a new payment to assist families with their education costs. This will replace a refundable tax offset, called the Education Tax Refund, which operates on a claims basis. Many eligible families do not currently claim the full amount of the tax offset, but all eligible families will get the payment.

Overview of the Schedules

Schedule 1 amends family assistance and veterans' entitlements legislation to allow a one-off ETR payment to be made to individuals entitled to certain payments on 8 May 2012. Schedule 1 also establishes an administrative scheme to allow some individuals who were not paid a statutory ETR payment to otherwise have access to the ETR Payment.

Schedule 2 also amends family assistance legislation to establish a new payment called Schoolkids Bonus. The Schoolkids Bonus would be paid to individuals entitled to certain payments and would provide ongoing assistance for education expenses from 2013 onwards. It should be noted payments under this Schedule can be made in respect of children aged under 18 years, young people aged up 18 years and young people turning 19 years in the relevant calendar year.

Schedule 3 amends taxation legislation to remove provisions relating to the education expenses tax offset (also known as the Education Tax Refund) for the 2011-12 income year and thereafter. In its place, the ETR payment established under Schedule 1 would deliver assistance for the 2011-12 income year, as the amount of the ETR payment would be equivalent to the current education expenses tax offset amount and eligibility groups are similar. The Schoolkids Bonus would deliver education expenses assistance for the 2012-13 income year and thereafter.

Human rights implications

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as Article 26 of the Convention on the Rights of the Child (CRC), recognise the right of a child to benefit from social security.

The right to social security in article 9 of the ICESCR requires that a social security system be established and 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 imposes similar requirements on a country in relation to a child.

Schedule 1 allows for a one-off payment to be paid to families and students in respect of education expenses in the 2011-12 income year, in lieu of the education expenses tax offset to be removed under Schedule 3. The one-off payment would cover the same groups to those covered by the education expenses tax offset, but would pay the full amount to all eligible families so that families do not miss out.

Schedule 2 introduces a new payment into the social security system that will deliver a greater level of support for education expenses to many families and students when they need it. Eligibility criteria for the payment draw on eligibility for existing social security payments, to ensure assistance is targeted to individuals who may not have the resources to provide for education expenses. The same level of payment is delivered to eligible families regardless of the level of education expenses incurred, thereby benefiting individuals who do not have the resources required to incur education expenses upfront, as was required under the education expenses tax offset.

The right to education is contained in article 13 of ICESCR and makes specific reference to primary and secondary education, as well as technical and vocational education. Under the article, countries have obligations to respect, protect and fulfil each of the essential features of the right to education, including economic accessibility. Article 28 of CRC imposes similar obligations on a country in relation to a child.

The education payments introduced by Schedules 1 and 2 would be delivered automatically to families and students at key points in the calendar year when education expenses are most likely to arise. While a system of public education exists in Australia, there are numerous costs associated with placing a child in school which families and students are required to absorb. Under the Bill, payments would be targeted to children of compulsory school age and, for children aged 16 to 19 years, where they meet existing education and training-related activity requirements. These activity requirements include both secondary education and, for some categories of entitlement, the vocational equivalent. The rate in respect of a child in secondary or vocational education is significantly higher, in recognition of higher costs associated with this level of study in comparison to primary education.

Further to a child's right to education under article 28 of CRC, article 29 outlines the aims of a child's education and specifies consideration should be given to the "development of the child's personality, talents and mental and physical abilities to their fullest potential". Under this article, there is recognition that a range of experiences should contribute to a child's development in addition to government curricula-set learning processes.

The education payments introduced by Schedules 1 and 2 would be paid to eligible families and students at a set rate depending on whether they are in primary, secondary or vocational education. There would be no conditions attached to receipt of the payment and no requirement that the payment be spent in respect of prescribed items. This would provide flexibility for families and students to use the payment for items such as school excursions, musical instruments and tuition, and sporting equipment and registration. These items are currently not covered under the education expenses tax offset.

Conclusion

The Schedules are compatible with human rights as education payments delivered under the Bill promote the right to social security and the right to education.