Parliamentary Joint Committee on Human Rights

Recommendations

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Page 38 review and review by the Social Security Appeals Tribunal or the Administrative Appeals Tribunal. No explanation is given as to why it is necessary to remove this right of review. 1.38 The UN <strong>Committee</strong> on Economic, Social and Cultural Rights has noted that remedies should be made available for alleged violations of economic, social or cultural rights. While these may be judicial or administrative, 18 as a matter of principle, effective remedies of an appropriate sort must be provided: The Covenant contains no direct counterpart to article 2.3(b) of the International Covenant on Civil and Political Rights which obligates States parties to, inter alia, ‘develop the possibilities of judicial remedy’. Nevertheless, a State party seeking to justify its failure to provide any domestic legal remedies for violations of economic, social and cultural rights would need to show either that such remedies are not ‘appropriate means’ within the terms of article 2.1 of the Covenant or that, in view of the other means used, they are unnecessary. It will be difficult to show this and the <strong>Committee</strong> considers that, in many cases, the other “means” used could be rendered ineffective if they are not reinforced or complemented by judicial remedies. 19 1.39 Removing the right to review under the Social Security (Administration) Act 1999 in relation to these new provisions also engages the right to a fair hearing under article 14(1) of the International Covenant on Civil and Political Rights (ICCPR). Decisions about social security benefits have been found to come within the definition of 'rights and obligations' under article 14(1) of the ICCPR and therefore any restriction on the right to review should be justified. The restriction may also be inconsistent with the right of a person to an appropriate administrative or judicial remedy in relation to alleged violations of economic rights such as the right to social security guaranteed by article 9 of the ICESCR. 1.40 The committee requires further information on the purpose and effect of the amendments relating to recoverable payments and the exclusion of the right of review in relation to social security payments before it can form a view on the compatibility of the bill with the right to social security. The committee intends to write to the Minister for Finance and Deregulation to ask for clarification. 18 UN <strong>Committee</strong> on Economic, Social and Cultural Rights, General Comment No 9 (1998), para 9. 19 Ibid, para 3.
Page 39 Foreign Affairs Portfolio Miscellaneous Measures Bill 2013 Introduced into the House of Representatives on 13 March 2013 Portfolio: Foreign Affairs Summary of committee view 1.41 The committee seeks further information as to why it is necessary to enable the Director-General of the Australian Secret Intelligence Service (ASIS) to disapply any provision of the Work Health and Safety Act 2011 and whether there would be any less restrictive means available to achieve the stated objective. Overview 1.42 This bill seeks to amend the Intelligence Services Act 2001 and the Work Health and Safety Act 2011 to: • create a mechanism for Australian Secret Intelligence Service (ASIS) employees to move to an Australian Public Service (APS) agency in the same way that APS employees can voluntarily transfer from one APS agency to another under section 26 of the Public Service Act 1999 (the PS Act); • enable the Director-General of ASIS, with Ministerial approval, to make a declaration that specified provisions of the Work Health and Safety Act 2011 do not apply, or apply subject to modification in relation to persons carrying out work for the Director-General of ASIS. Compatibility with human rights 1.43 The bill is accompanied by a self-contained statement of compatibility which identifies that the bill engages the right to work under articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). 1.44 Article 6 of the ICESCR recognises the right to work and 'the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts' and article 7 recognises the right of everyone to the 'just and favourable conditions of work' which includes ensuring 'safe and healthy working conditions'. 1.45 The amendments which create a mechanism for ASIS employees to move to an APS agency in the same way that APS employees can do, promotes the right to work as it broadens the opportunities for ASIS employees to choose the type of work they wish to do. 1.46 In contrast, the amendments to the Work Health and Safety Act 2011 (WHS Act) appear to limit the right to work under article 7 of the ICESCR, in particular the right to 'safe and healthy working conditions' of work. The statement of compatibility explains this limitation in this way:
Page 1 and 2: Parliamentary <str
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Page 9 and 10: Executive Summary This report provi
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Page 26 and 27: Page 14 1.58 The committee intends
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Page 34 and 35: Page 22 1.84 On the basis of the ma
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Page 40 and 41: Page 28 • additional dementia sup
Page 42 and 43: Page 30 1.10 However, neither the e
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Page 46 and 47: Page 34 $71,400), or both. The crim
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Page 56 and 57: Page 44 the Act, 27 a copy of that
Page 58 and 59: Page 46 1.71 However, in one respec
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Page 62 and 63: Page 50 1.86 The bill, in providing
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Page 70 and 71: Page 58 Broadcasting Services Amend
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Page 86 and 87: Page 72 that limiting prisoners' ab
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Parliamentary Joint Committee on Human Rights

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