Commonwealth of Australia Explanatory Memoranda

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SOCIAL SECURITY AND OTHER LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2023

                               2022-2023




   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                SENATE




Social Security and Other Legislation Amendment (Miscellaneous
                      Measures) Bill 2023


                         ADDENDUM TO THE

                   EXPLANATORY MEMORANDUM




                      (Circulated by authority of the
 Minister for Employment and Workplace Relations, the Hon Tony Burke MP)
       Social Security and Other Legislation Amendment (Miscellaneous
                             Measures) Bill 2023

                     Addendum to the Explanatory Memorandum
This Addendum responds to concerns raised by the Parliamentary Joint Committee on
Human Rights in its Human Rights Scrutiny Report No. 9 dated 6 September 2023.

NOTES ON CLAUSES

Social Security Act 1991

Item 8 - Paragraph 1062B(k)

After the paragraph 25 insert:

25(a) There are safeguards, described immediately below, which accompany the proposed
      amendment to section 1062B(1)(k). These safeguards apply equally to the provisions
      as currently drafted, and the proposed amendment to section 1062B(1)(k) does not in
      any way increase the risk that programs that would disadvantage or be detrimental to
      Indigenous persons could be funded.

25(b) First, the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) would
      operate to prevent the making, varying and administering of grants and arrangements
      under section 1062A that would unlawfully disadvantage or be detrimental to
      Indigenous persons (see specifically subsections 9(1) and 10(1) of the Racial
      Discrimination Act). Subsection 8(1) of that Act enables special measures to be taken
      for the sole purpose of securing adequate advancement of certain racial groups
      requiring such protection, as may be necessary to ensure such groups have equal
      enjoyment or exercise of human rights and fundamental freedoms.

25(c) If a program supported by section 1062A discriminated against Indigenous persons in
      a way that was not based on reasonable and objective criteria, and was not aimed at
      fulfilling a legitimate objective of substantive equality, it would risk being in breach
      of the Racial Discrimination Act and would be susceptible to challenge. Indeed,
      Commonwealth programs have been challenged on this basis.1

25(d) In developing a new policy proposal targeted at addressing Indigenous disadvantage,
      or with the potential to have a disproportionate impact on Indigenous persons, the
      department would as appropriate seek legal advice on potential discrimination issues
      to ensure the proposal is consistent with the Racial Discrimination Act.



1
 Examples of legal challenges to government programs/measures on the basis that they breached the Racial
Discrimination Act are the cases of Maloney v The Queen [2013] HCA 28 and Dawson v Commonwealth of
Australia (No 2) [2021] FCA 1636. Both involved allegations of unlawful discrimination against Indigenous
peoples. In Maloney, the High Court dismissed the appeal on the grounds that the program was a "special
measure" designed to protect Indigenous peoples and so did not contravene the Racial Discrimination Act. In
Dawson, the parties reached a settlement agreement.
25(e) Second, the arrangements contemplated by section 1062A are beneficial in nature.
      This is reflected in the matters specified in subsection 1062A(1).

25(f) The Parliamentary Joint Committee on Human Rights specifically expressed concern
      that programs enforcing mutual obligation requirements may limit human rights.
      However, any detriment or disadvantage that might be associated with mutual
      obligation requirements would arise from provisions of the Social Security
      (Administration) Act 1999 rather than section 1062A (read with proposed subsection
      1062B(k)). Section 1062A could not be used to make changes to mutual obligation
      requirements for jobseekers.