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)

Statements of compatibility with human rights

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

Baby bonus and paid parental leave amendments
(Schedule 1 and Part 5 of Schedule 3)

These amendments 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 amendments

Schedule 1 to the Bill makes amendments to the amount of baby bonus provided for in section 66 of the A New Tax System (Family Assistance) Act 1999 . The amount of baby bonus for second and subsequent children who come into a family from 1 July 2013 will be reduced to $3,000. The change will apply regardless of whether the child is born into the family, adopted by the family, or entrusted to the family's care within 26 weeks of birth (for example, under a foster care arrangement). Baby bonus will continue to be paid at the rate of $5,000 for a family's first child, and for each child who comes into the family in a multiple birth, adoption or entrustment to care.

The purpose of the amendments to baby bonus is to maintain support for new parents with the upfront costs of having a baby, while ensuring the family payments system is sustainable into the future. The amendments recognise that families do not face the same upfront costs for a second or later child as they do for their first child, with the more expensive items usually already purchased.

Part 5 of Schedule 3 makes technical amendments to the Paid Parental Leave Act 2010 , relating to how the legislation applies to dad and partner pay claims made in 'prescribed circumstances'.

Human rights implications

These amendments are likely to engage the following human rights:

Right to social security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (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 Convention on the Rights of the Child (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'.

The amendments to the amount of baby bonus will continue to support new parents with the payment of $5,000 for the upfront costs of having their first child, regardless of whether the child is born into the family, adopted by the family, or entrusted to the family's care within 26 weeks of birth. This higher rate takes into account the circumstances of parents having their first child, as they face higher upfront costs. The baby bonus rate of $3,000 provides benefits to individuals and families for second and subsequent children, taking into account the reduced upfront costs involved.

The amendments also recognise the financial pressures that families face with multiple births, and where two or more children are adopted as part of the same process or entrusted to the family's care within 26 weeks of birth as part of the same process. The baby bonus rate of $5,000 is maintained for each child in those circumstances.

Rights of children deprived of their family environment

Article 20 (1) of the CRC provides that 'a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State'.

The amendments to the amount of baby bonus ensure that children adopted by a family, or entrusted into care of a family within 26 weeks of birth, receive special protection and assistance, by maintaining the same higher rate of $5,000 of baby bonus for the first child that is adopted or entrusted into care, as for the first birth child.

The amendments made to the Paid Parental Leave Act 2010 clarify how the legislation applies to dad and partner pay claims made in 'prescribed circumstances'. These amendments promote the rights of parents and children by extending the time in which dad and partner pay claims made in 'prescribed circumstances' can be made to a year from the day the claimant began to care for the child, rather than a year from the day the child was born. This means that, for surrogacy claims and circumstances involving a change in care arrangements due to the long-term inability of the birth mother to care for the child, there is a longer time in which a claim can be made, protecting the interests of children in these circumstances.

Right to health

Article 10 (2) of the ICESCR states that 'special protection should be accorded to mothers during a reasonable period before and after childbirth'.

The change to the amount of baby bonus recognises that mothers who have had their first stillborn child have had a traumatic experience. The baby bonus rate of $5,000 is given to mothers following a stillbirth to protect their physical and mental health and meet any expenses associated with the stillbirth. The baby bonus amount of $3,000 is also given to mothers who have a second or a subsequent stillbirth.

Conclusion

These amendments are compatible with human rights because they advance the protection of human rights.

Family tax benefit and double orphan pension
(Schedule 2)

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 .

Overview of Schedule 2

This Schedule makes amendments to ensure eligibility for family tax benefit until the end of a calendar year for young people who complete secondary study or its equivalent in either November or December of that year. Additionally, the qualification period for double orphan pension is being extended so that it aligns with eligibility for family tax benefit.

Human rights implications

This Schedule is likely to engage the following human rights:

Right to social security

The amendments in Schedule 2 will ensure the continuation of payments such as family tax benefit and double orphan pension to parents and guardians for a period after the child has completed secondary study, so that assistance for a child does not cease immediately on the child completing study. As such, these amendments promote the right to social security outlined in Article 9 of the International Covenant on Economic, Social and Cultural Rights and Article 26 of the Convention on the Rights of the Child (CRC).

Rights of children deprived of their family environment

Double orphan pension qualification currently ceases as soon as the child ceases study. The amendments to double orphan pension extend qualification so that child age qualification aligns with family tax benefit child age eligibility. Under the amendments in Schedule 2, a carer can continue to receive double orphan pension for a young person in their care until their 18th birthday if they have already completed secondary study, or up to the end of the calendar year if the child is aged less than 20 and completes secondary study in November or December. This continuation of government assistance for children who are double orphans promotes the rights of children deprived of their family environment as outlined under Article 20 of the CRC.

Conclusion

This Schedule is compatible with human rights because it advances the protection of human rights.

Other amendments
(Schedule 3)

Overview of Schedule 3

This Schedule makes some clarifying and technical amendments to portfolio legislation, consistent with intended policy.

For example, amendments to schoolkids bonus provisions ensure FTB children aged under 16 who have already commenced primary or secondary school, but are unable to participate for a period due to special circumstances, are still able to receive schoolkids bonus. Minor amendments are also made to clarify the periods within which customers need to notify that they are engaging in eligible study.

Amendments to payment arrangements for the clean energy supplement under the family assistance law ensure that, in some cases, an individual can be paid their clean energy supplement arrears straightaway, instead of having to wait until the end of the quarter. Another amendment removes an anomaly that prevents a member of a couple from being entitled to a clean energy advance top-up in certain situations.

It is also clarified that social security and veterans' entitlements customers who decide to end payment on a quarterly basis of clean energy supplement, pension supplement or seniors supplement do not have to wait until the end of the quarter to be paid arrears. Other minor amendments give effect to the policy intention of ensuring that customers receiving the clean energy supplement receive their full entitlement.

Human rights implications

This Schedule is likely to engage the following human right:

Right to social security

The schoolkids bonus amendments promote the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the Convention on the Rights of the Child (CRC) as they extend access to schoolkids bonus for a small group of children who are already in study but prevented from participating for a period due to special circumstances.

Current arrangements for schoolkids bonus allow for indefinite backdating of payments for some income support recipients who are in study but do not provide study details until a later time. The amendments allow a reasonable period of backdating for these students:

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Where the student is entitled to an income support payment, they are able to provide these details until the end of the calendar year to receive backdated schoolkids bonus amounts for that calendar year.

•

Where the student attracts family tax benefit, study details must be provided before the end of the second financial year after the financial year in which the child was studying. This two-year period is in line with the claim period for family tax benefit.

To the extent that these changes limit access to schoolkids bonus payments, these limitations are reasonable and proportionate and still allow a generous amount of time for payment recipients to provide study details and access backdated payments.

The social security and veterans' entitlements quarterly supplement amendments are consistent with the right to social security, as they will make sure these customers receive their full and correct entitlements, and remove a current obstacle to those entitlements being received as early as possible, thereby potentially alleviating financial pressures for those customers.

No applicable rights or freedoms engaged

The amendments relating to when a child is entrusted to the care of an individual make changes to payment arrangements to ensure earlier access and does not change eligibility for or rates of payments. As such, those amendments do not engage any of the applicable rights or freedoms.

Conclusion

This Schedule is compatible with human rights because, where applicable rights or freedoms are engaged, it advances the protection of human rights and, to the extent that these changes limit access to schoolkids bonus payments, these limitations are reasonable and proportionate.