House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Agriculture, the Hon. Barnaby Joyce MP)

Statement of compatibility with human rights

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

Farm Household Support (Consequential and Transitional Provisions) Bill 2014

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

Overview of the Bill

1. The Farm Household Support (Consequential and Transitional Provisions) Bill 2014 (the FHSCT Bill) is a companion Bill to the Farm Household Support Bill 2014 (the FHS Bill).

2. The FHS Bill provides the mechanism to implement the Farm Household Allowance (FHA), an income support payment for farmers and their partners who are in financial hardship. The FHA replaces the Exceptional Circumstances Relief Payment (ECRP), which is provided for in the Farm Household Support Act 1992 (FHSA 1992). All other payments and schemes under the FHSA 1992 have ceased.

3. The purpose of the FHSCT Bill is to:

•

repeal the FHSA 1992

•

make consequential amendments to other Acts that refer to the FHSA 1992, provisions of the FHSA 1992 or payments made under the FHSA 1992; as well as redundant references to a historical payment of 'farmers hardship bonus' that was made under the Social Security Act 1991

•

make consequential amendments of a minor nature to other Acts to support the full and effective implementation of the FHA. These include amendments to make it easier for farmers receiving income support under non-legislated schemes to transition to the FHA when it becomes available following passage of the FHS Bill and the FHSCT Bill

•

provide for contingent amendments of a number of Bills which are currently before Parliament, including by reference to the passage of other legislation; and general transitional provisions.

4. Together with the FHS Bill, the FHSCT Bill is part of a broader national drought program reform agenda that replaces the Exceptional Circumstances arrangements and is designed to encourage farmers to plan for the future and better manage risks, including the risks associated with drought.

Human rights implications

5. In achieving the purposes outlined above, the FHSCT Bill promotes a number of rights provided under the International Covenant on Economic, Social and Cultural Rights (ICESCR). These rights include the right to social security, the right to health, the right to respect for the family and also the right to an adequate standard of living, including food, water and housing.

6. The following rights are engaged by the FHSCT Bill:

•

Article 6(1) of the ICESCR - right to work and rights in work

•

Article 9 of the ICESCR - right to social security

•

Article 11(1) of the ICESCR - right to an adequate standard of living, including food, water and housing

•

Article 12(1) of the ICESCR - right to health

•

Article 2(2) of the ICESCR and article 26 of the International Covenant on Civil and Political Rights (ICCPR) - rights of equality and non discrimination.

7. The FHSCT Bill supports the full and effective implementation of the FHA. As the FHA is intended to help meet basic household expenses in the form of an income support payment for farmers and their partners who are in financial hardship, the clauses in the FHSCT Bill that support the implementation of the FHA are also intended to advance immediately the first three rights mentioned above.

Right to social security; right to work

8. Article 9 of the ICESCR recognises the right to social security. The United Nations Committee on Economic, Social and Cultural Rights (CESCR) has stated that the term 'social security' in article 9 encompasses the right to access and maintain benefits, whether in cash or in kind to secure protection from (a) lack of work-related income; (b) unaffordable healthcare; or (c) insufficient family support. ^[1]

9. Article 6 of the ICESCR protects the right to work, including the right of everyone to the opportunity to gain a living by work which they freely choose or accept, and obliges governments to take appropriate steps to safeguard this right.

10. The clauses outlined below in Schedules 1 to 3 of the FHSCT Bill promote the right to social security.

Replacement of ECRP with FHA

11. Schedule 1 of the FHSCT Bill repeals the FHSA 1992, which provides for a relief payment known as ECRP to farmers who are in exceptional circumstances, including drought. All other payments and schemes under the FHSA 1992 have ceased. The FHA, which is provided for in the FHS Bill, replaces ECRP (and non-legislated income support schemes for farm families) and is different from ECRP in various ways. These differences include: qualification requirements, including: that ECRP requires a drought declaration to trigger assistance; the period of support available; and means testing.

12. Replacing ECRP with FHA promotes the right to social security by providing for a greater number of people who are experiencing hardship to access FHA. This is because access to FHA is not confined to those experiencing drought. FHA is available regardless of the cause of financial hardship and does not require a drought declaration to trigger assistance.

13. ECRP has been available for the length of a drought declaration, which has ranged from 12 months to, in some instances, up to eight years; and the FHA is available up to three cumulative years of income support. While the FHA differs from ECRP in the period of support available, FHA assists recipients to develop strategies for self-reliance, unlike ECRP. The FHA's financial improvement agreement, which a person must be willing to enter into and comply with as a condition of receiving the FHA, focuses on skills development and training to improve the farmer's and/or partner's prospects for earning more income or securing other sources of income. In some cases, this might include support to help recipients in their transition to alternative or additional employment. Assisting recipients to improve their capacity for self-reliance in this way also promotes the right to work.

Amendments to support the implementation of FHA

14. Schedule 2, Part 1 of the FHSCT Bill makes consequential amendments of a minor nature to other Acts to support the full and effective implementation of the FHA under the FHS Bill. These amendments relate to:

•

the substitution of references to 'Farm Household Support Act 1992' with 'Farm Household Support Act 2014' (clauses 4-5, 34, 36-37, 53-54, 79, 92, 108, 111, 132)

•

the modified operation of social security law with respect to the FHA and the FHS Bill (clauses 1, 31, 40-42, 60, 106, 109, 112, 114-130)

•

amendments to social security law to support the FHA (clauses 97, 100-101, 131, 133)

•

amendments to taxation law to support the FHA (clauses 34, 36 and 37).

15. While the FHA is not a social security payment under the social security law, for the purpose of the FHS Bill the FHA is treated as if it were a social security payment (see FHS Bill clause 95). At any rate, that the FHA aligns where possible with social security law to ensure that farmers are treated equitably and have access to the same benefits and services as other income support recipients means that it can be considered in the same way as social security for farmers and their partners.

16. Consistent with the alignment of the FHA with social security law, Schedule 2, Part 2, clauses 143-146 of the FHSCT Bill make amendments to taxation law and social security law to refer to a payment of TFFP and IFHA. These clauses make it easier for farmers currently receiving income support through non-legislated schemes to transition to the FHA when it becomes available following passage of the FHS Bill and the FHSCT Bill.

17. Schedule 3, clause 1 of the FHSCT Bill also facilitates a smooth transition for recipients of existing farmer income support payments or former income support payments to the FHA following passage of the FHS Bill and the FHSCT Bill.

Right to an adequate standard of living, including food, water and housing; highest attainable standard of health

18. Article 11(1) of the ICESCR protects the right to an adequate standard of living, including food, water and housing. States have an obligation to ensure the availability and accessibility of the resources necessary for the progressive realisation of this right. The CESCR has stated that the core content of the right to adequate food implies both the availability and (economic and physical) accessibility of food. ^[2]

19. Article 12(1) of the ICESCR recognises the right of all individuals to enjoy the highest attainable standard of physical and mental health. The CESCR has stated that this right is not confined to the right to health care. ^[3] The CESCR considers that article 12 more broadly acknowledges that the right to health embraces a wide range of socio economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.

20. The clauses outlined above in Schedules 1 to 3 of the FHSCT Bill assist in promoting the right to an adequate standard of living, including food, water and housing; and the right to the highest attainable standard of health. These clauses do so by supporting the implementation of the FHA under the FHS Bill, which provides financial support to farmers and their partners at times of hardship and where they demonstrate limited capacity to support themselves.

Rights of equality and non-discrimination

21. Article 2(2) of the ICESCR requires States to ensure that the rights recognised in that Covenant are exercised "without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".

22. The CESCR has clarified that discrimination constitutes "any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights". ^[4]

23. Article 26 of the ICCPR is a stand-alone right and also prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Its effect is to provide that all persons are equal before the law and are entitled to equal protection of the law without discrimination. ^[5]

24. Schedule 2, clause 3 of the FHSCT Bill engages with the right of non discrimination. This clause replaces the current exemption from the unlawful age discrimination provisions in the Age Discrimination Act 2004. It replaces the exemption in relation to things done in direct compliance with the FHSA 1992 with an exemption in relation to things done in direct compliance with the provisions of the FHSA 2014 in relation to the FHA. The Age Discrimination Act 2004 also contains an exemption in relation to things done in direct compliance with the social security law.

25. The only operative provision in the FHSA 1992 that the current exemption applies to is the rate of payment of ECRP. Consistent with mainstream social security allowances, the rate of payment of ECRP differs depending on a recipient's age: the youth allowance rate if they are below 22 years old; and the newstart allowance rate otherwise.

26. The replacement exemption in Schedule 2, clause 3 of the FHSCT Bill supports the provisions of the FHS Bill that provide for the following different treatment of the FHA based on the age of an applicant/recipient:

•

the qualification requirement that a person must be 16 years or above to receive the FHA, which is consistent with mainstream social security law allowances, which makes payments to a person under 16 to that person's parents or legal guardians

•

the requirements that the Secretary take into account matters including a person's age when: approving the person's financial improvement agreement; and determining whether work is unsuitable to be undertaken by the person

•

the rate of payment of FHA, which differs depending on a recipient's age (the youth allowance rate if they are below 22 years; and the newstart allowance rate otherwise) and is equivalent to the rate of payment of ECRP

•

the provisions that modify how the social security law operates so that it can apply in relation to the FHA, which reflect that FHA is generally treated in the same way as newstart allowance and youth allowance.

27. Retaining the exemption from the unlawful age discrimination provisions in the Age Discrimination Act 2004 is necessary to support the full and effective implementation of the FHA, which aligns with mainstream social security law. The exemption under Schedule 2, clause 3 of the FHSCT Bill is consistent with the existing exemption in relation to things done in direct compliance with the social security law and does not diminish the protection of the rights of equality and non-discrimination of recipients of FHA.

Conclusion

28. The Bill is compatible with the human rights outlined above. In some instances it promotes human rights and to the extent that it may limit these rights, these limitations are reasonable, necessary and proportionate to achieve legitimate aims.

Minister for Agriculture, the Hon. Barnaby Joyce MP