Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.
What is the right to social security?
The right to social security requires 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.
The UN Committee on Economic Social and Cultural Rights has stated that social security, through its redistributive character, plays an important role in poverty reduction and alleviation. It has also stated that social security prevents social exclusion and promotes social inclusion.
Where does the right to social security come from?
Australia is a party to seven core international human rights treaties. The right to social security is contained in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
See also article 5(e)(iv) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , articles 11(1)(e) and 14(2)(c) of the Convention on the Elimination of All Forms of Discrimination Against Women , article 26 of the Convention on the Rights of the Child (CRC) and article 28 of the Convention on the Rights of people with disability (CRPD).
CEDAW requires measures to be taken to ensure women, on a basis of equality with men, the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.
The CRC requires countries to recognise the right of the child to benefit from social security. Benefits should take into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child.
The CRPD requires countries to recognise the right of people with disability to social protection and to take appropriate steps to ensure access by people with disability to social protection and poverty reduction programs and to retirement benefits and programs.
When do I need to consider the right to social security?
You will need to consider the right to social security if you are working on legislation, a policy or a program that:
- provides for any social security benefit, including the age pension, youth allowance, Austudy, Newstart allowance, carer payment and family assistance payment
- provides for payments for medical benefits and hospital services, such as Medicare
- relates to taxation benefits for families
- relates to paid parental leave
- relates to benefits for people with disability, including the disability support pension
- makes changes to income tax liabilities that affect the entitlement to social security benefits
- provides for assistance payments for farmers
- provides for assistance to people affected by natural disasters
- relates to workers compensation and rehabilitation
- relates to the review of decisions regarding the payment of social security benefits, or
- relates to social security and other assistance payments to refugees and asylum seekers.
This list should not be regarded as exhaustive.
What is the scope of the right to social security?
The UN Committee has stated that implementing the right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. This requires 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. Countries are obliged to demonstrate that every effort has been made to use all resources that are at their disposal in an effort to satisfy, as a matter of priority, these minimum obligations.
The social security system should cover the following specific situations:
- health care
- old age
- unemployment
- employment injury and illness
- family and child support, including the need to care for adult dependants
- maternity
- disability.
The Committee has stated that qualifying conditions for benefits must be reasonable, proportionate and transparent.
The Committee has stated that social security schemes should be sustainable, including those concerning provision of pensions, in order to ensure that the right can be realised for present and future generations. The Committee has also stated there is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under ICESCR. In this context, a retrogressive measure would be one taken without adequate justification that had the effect of reducing existing levels of social security benefits, or of denying benefits to persons or groups who were previously entitled to them. If any deliberately retrogressive measures are taken, the country has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are justified, in the context of the full use of the maximum available resources of the country.
The Committee has stated that particular care should be taken to ensure that Indigenous peoples and ethnic and linguistic minorities are not excluded from access to social security through direct or indirect discrimination, particularly through the imposition of unreasonable eligibility conditions or lack of adequate access to information.
The Committee has also stated that special attention should be given to groups who may face difficulties in exercising the right to social security. Those groups include women, the unemployed, sick or injured workers, people with disabilities, older persons, children and adult dependents andminority groups.
Persons who claim violations of their right to social security should have access to effective judicial or other appropriate remedies.
Declaration of the Rights of Indigenous Peoples
The Declaration on the Rights of Indigenous Peoples contains provisions relevant to the right of Indigenous peoples to social security. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous peoples.
What is the obligation under ICESCR?
The obligations discussed in this section are Australia's obligations under ICESCR, not obligations that may exist under Australian law relating to social security benefits.
Obligations of progressive realisation
Under article 2(1) of ICESCR, a country is obliged to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realisation' of the rights recognised in ICESCR. The UN Committee on Economic Social and Cultural Rights has stated that this provision is 'a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights'. However, the Committee has also stated that 'the phrase must be read in the light of the overall objective of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question', and that 'it thus imposes an obligation to move as expeditiously and effectively as possible towards that goal'.
Obligations of immediate effect
The Committee has stated that, notwithstanding the progressive realisation provision, there are two obligations that are of immediate effect. They are the guarantee in article 2(2) of ICESCR that the rights under the Covenant will be exercised without discrimination of any kind and the obligation under article 2(1) to 'take steps'. This means that steps towards realisation of the rights under the Covenant must be taken within a reasonably short time after the country becomes party to the Covenant and that the steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations under the Covenant.
Can the right to social security be limited?
Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportional and the least restrictive alternative where several types of limitations are available, and even where such limitations are permitted, they should be of limited duration and subject to review. Measures that are retrogressive to the realisation of economic, social and cultural rights must also be properly justified. A retrogressive measure is one that reduces the extent to which an economic, social and cultural right is guaranteed.
The UN Committee has stated that it 'acknowledges that the realisation of the right to social security carries significant financial implications for States parties, but notes that the fundamental importance of social security for human dignity and the legal recognition of this right by States parties mean that the right should be given appropriate priority in law and policy'.
Which domestic laws relate to the right to social security?
A number of existing laws are relevant to the realisation of the right to social security in Australia.
The Health Insurance Act 1973 underpins the Medicare scheme by providing for payments by way of medical benefits and for hospital services.
The National Health Act 1953 makes provision for pharmaceutical, sickness and hospital benefits, and for medical and dental services.
The Social Security Act 1991 and the Social Security (Administration) Act 1999 govern entitlement to and administration of a number of benefits, including the age pension, disability support pension and child disability assistance, carer payment and allowance, parenting payment, youth allowance, Austudy, Newstart allowance, sickness allowance, special needs pensions, farmers hardship bonus, crisis and disaster recovery payment, concession cards and the student financial supplement scheme. The Social Security (Administration) Act also makes provision for the Social Security Appeals Tribunal. The Tribunal is the first level of external review of decisions made by Centrelink about social security, family assistance, education or training assistance and parental leave payments.
The Carer Recognition Act 2010 is intended to increase recognition and awareness of carers and to acknowledge the valuable contribution they make to society.
The Aged Care Act 1997 facilitates access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location.
Family Tax Benefits Parts A and B and the baby bonus are payable under the A New Tax System (Family Assistance) Act 1999. The Act also provides for Maternity Immunisation Allowance, Child Care Benefit and Child Care Rebate.
The Paid Parental Leave Act 2010 provides for payments to eligible primary carers (mainly birth mothers) of newborn and newly adopted children.
The Safety, Rehabilitation and Compensation Act 1988 provides for compensation for reasonable medical expenses and for time off work for Commonwealth employees who are injured or become ill in the course of employment. Members of the Defence Force are covered for injury, disease or death due to their service on or after 1 July 1994 by the Military Rehabilitation and Compensation Act 2004. Benefits are also payable under the Veterans' Entitlements Act 1986.
The Veterans' Entitlements Act 1986 provides for the payment of disability pension, war widow/ers pension service pension, income support supplement and other benefits to eligible veterans, their dependants or both. The Act also provides for the provision of treatment and counselling services to eligible veterans, their dependants or both.
Applications for review of a range of decisions made under these schemes may be made to Commonwealth tribunals, such as the Social Security Appeals Tribunal and the Administrative Appeals Tribunal.
What other rights and freedoms relate to the right to social security?
The UN Committee has stated that the right to social security plays an important role in supporting the realisation of many of the rights in ICESCR. In particular, the right to social security may be relevant to:
- the right to work under article 6 of ICESCR
- the obligation in article 10 of ICESCR to provide protection and assistance to the family, including the obligation to accord working mothers paid leave or leave with adequate social security benefits during a reasonable period before and after childbirth
- the right to an adequate standard of living under article 11 of ICESCR
- the right to the highest attainable standard of health under article 12 of ICESCR.
Articles from relevant Conventions
International Covenant on Economic, Social and Cultural Rights
Article 9
The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.
See also: CERD article 5(e)(iv); CEDAW articles 11(1)(e), 14(2)(c); CRC article 26; CRPD article 28.
Where can I read more about the right to social security?