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Beth Goldblatt - Visiting Fellow_ Australian Human Rights Centre

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Beth Goldblatt - Visiting Fellow_ Australian Human Rights Centre Powered By Docstoc
					ACOSS National Conference: Thursday 29 March 2012, Australian Technology Park, Bay
4, Locomotive St, Eveleigh, 10.05 – 11.05

Session: Poverty and Inequality: How to protect a social safety net in an age of
uncertainty

        This Plenary will take us to the heart of how we share Australia’s wealth, by
        analysing Australia's social welfare policies and responses to economic instability.
        Professor Peter Whiteford, Social Policy Research Centre, will present the latest data
        on income inequality to discuss international approaches to social security; and the
        implications of Australia’s persistently low payment levels and increasing reliance on
        conditionality policies. This will be followed by Beth Goldblatt, Visiting Fellow at the
        Australian Human Rights Centre, talking about the possibilities of using human
        rights, along with other strategies, to address some of the challenges facing Australia
        in the current global and local context.

Beth Goldblatt: ‘Realising the right to social security – strategies to address poverty and
inequality’

In recent months we have witnessed the Italian welfare minister breaking down and crying
while announcing the raising of the pension age and the freezing of annual inflation-related
increases to the pension. Spain has also had to lift the pension age amongst other austerity
measures that have deepened poverty for the vulnerable in that society. And we have watched
the human face of the Greek debt crisis when a woman and her husband, facing job losses,
threatened suicide. Less newsworthy has been the massive increase in food insecurity,
malnutrition and starvation in developing countries following the global financial crisis.

But we should not forget that social security down-scaling since 2008 follows three decades
of the erosion of the welfare state in many of the developed countries of the world. These
‘reforms’ have also seen a growing trend towards conditionality where welfare applicants are
being required to meet increasingly onerous conditions in order to access benefits. In the US
for example, the Temporary Assistance to Needy Families law introduced the idea of
providing cash support only to those with jobs or prepared to be placed in government-
imposed ‘workfare’. The original Bill had proposed ‘chastity training’ for single mothers.
Even today, beneficiaries are instructed on how to change their attitudes and applicants for
many programs are subjected to drug testing and finger-printed to see if there are arrest
warrants pending in their names. There are proposals to introduce urine tests for
unemployment benefits.1

Australia’s own policies of income management in the Northern Territory Intervention and
elsewhere and the School Enrolment and Attendance through Welfare Reform Measure
(SAEM) are local examples of the same logic. They use the stick of controlling or
withholding social security to enforce government policies that they are having difficulties
1
 Barbara Ehrenreich ‘The poor - always with us, not necessarily us’ Guardian online, Thursday 15 March
2012.
with. This necessarily becomes punitive along with invasive of people’s privacy and dignity.
It makes people feel monitored, scrutinised and controlled, rather than supported by the state.
Conditionality, for many law makers, seems appropriate because of the discourse around
poverty and welfare recipients. People are seen as either helpless or devious, bludgers or
shirkers, irresponsible or ignorant, lacking self control or ‘child like’ in their inability to
manage their own lives. (A lot of this language is overlaid with racism, sexism, ageism and is
demeaning of people with disabilities and their carers). All of this rather than just as ordinary
people who are struggling and who are entitled to support from their country.

I have deliberately used the term ‘entitled’ because all people in the world have a right to
social security and should not be made to feel that they are supplicants, begging for a hand
out from those who have more.

I will now set out what this right entails and then discuss how we can use rights to address
inadequate transfers and unfair conditions.

What is this right?

The Universal Declaration of Human Rights (1948) in Article 22 says:

Everyone, as a member of society, has the right to social security and is entitled to realization,
through national effort and international co-operation and in accordance with the organization and
resources of each State, of the economic, social and cultural rights indispensable for his dignity and
the free development of his personality.

Article 25 is closely related to Article 22. It says:

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself
and of his family, including food, clothing, housing and medical care and necessary social services,
and the right to security in the event of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born
in or out of wedlock, shall enjoy the same social protection.

In addition to this founding statement on international human rights, the International
Covenant on Economic, Social and Cultural Rights (1966) turns this into a binding obligation
for all states that are party to the covenant. Article 9 says the following:

The States Parties to the present Covenant recognize the right of everyone to social security,
including social insurance.

The right to social security is also repeated in many of the main UN Conventions on the
rights of children, women, migrants and people with disabilities.

It is also taken forward as a mandate of the International Labor Organisation which has a
number of conventions on social security.

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Australia is party to the International Covenant, the UN conventions and some of the ILO
conventions although it has not ratified the ILO convention on social security.

The Committee responsible for the International Covenant has produced a general comment
which explains what the right to social security means for the countries of the world. It sees
the right as encompassing ‘the right to access and maintain benefits, whether in cash or in
kind, without discrimination in order to secure protection from a range of social and
economic difficulties. It notes that the right to Social security, through its redistributive
character, plays an important role in poverty reduction and alleviation, preventing social
exclusion and promoting social inclusion.

States have an obligation to progressively realise this right to the maximum of their
available resources. What does this mean? This means that states have to keep working to
fully realise the social security right of all people within their countries. They have to use all
possible resources to achieve this and if they can show that they don’t have sufficient
resources, they have to show that they have plans to keep trying to realise the right over time.

Accompanying this obligation is a principle of international law called ‘non-retrogression’
which means that states should not reduce or take away rights that they have provided to
people in their countries. There are stringent requirements that a state has to meet to show
that it had to go back on what it had provided (Paragraph 42 of the General Comment). This
is something to think about with regard to the international cutbacks and erosions of welfare
provision that have occurred.

Social security must be ‘Available, adequate and accessible and meet a list of social risks
and contingencies’. This means that the state must put in place a system that is sustainable
and can be realised for future generations. Benefits must be adequate which means that they
should be sufficient to ensure that people can afford what is needed for a decent life and
sufficient to ensure they can realise their other human rights such as rights to housing,
healthcare, food etc. The social security system must be accessible and transparent and
physically accessible for people in remote areas, with disabilities, for migrants, etc.

The duties a state has are to respect, protect and fulfil the right to social security. This
means that the state should not interfere with any existing rights and prevent others from
doing so, and should work to ensure that the right is provided and promoted.

States must remove all discrimination that affects access to social security by disadvantaged
groups such as women, people of different races and ethnicities, indigenous people, people
with disabilities, migrants, refugees and others. It should pay attention to the plight of people
working in the informal sector, domestic workers, home-based workers and other groups of
workers who are often marginalised.

What this rights framework clearly demonstrates is that each country’s resources, usually
through the tax system, should be used to assist those facing poverty and should be expanded
in difficult times rather than cut back. The extent and amount of transfers should be increased

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not reduced if the right is to be progressively realised. Conditions on transfers that make it
harder for people requiring support should be removed rather than imposed.

In addition, Australia should be playing a greater role in assisting developing countries to
meet the rights of their people. This is also required in terms of the international covenant.

How do we use these rights?

I will speak about some of the legal measures available for rights enforcement but more
importantly, we need to use rights to reframe the discussion and to support our campaigns
and advocacy. Human rights language and adherence is growing significantly in today’s
world. While rights may have initially been viewed as obscure legal formulations in some far
away place, they are increasingly accepted as central to the international order and the
domestic arrangements of all civilised nations. Ordinary people understand and claim their
rights from Syria to Myanmar and from the Northern Territory to NSW. More specifically,
rights should be used to measure government programs and reforms and should be asserted
where violations are immanent or occurring.

At the international level, Australia is required to report on its rights compliance to
international treaty bodies. Government reports can be criticised or corrected by shadow
reports of NGOs. This gives treaty bodies the information needed to question countries on
their reports and test their versions against evidence from other groups within a country. The
treaty bodies as well as the Universal periodic review produce statements about the countries
human rights compliance and recommend changes where needed. The current government
has listened to some of these bodies and addressed some of the challenges such as the
introduction of paid parental leave. So these bodies are influential and we should continue to
engage with them.

There are currently efforts to get sufficient countries to ratify the Optional Protocol to the
ICESCR. This will allow individuals who believe their rights have been violated and have
pursued all avenues open to them within a country to approach the UN committee responsible
for the covenant to consider their case. Australia has not signed this protocol and it is not yet
in force but could be an important future avenue for challenges around economic and social
rights if Australia can be convinced to become a party.

Human rights at the National level:

Despite a national human rights consultation the government decided not to enact human
rights legislation or to develop a charter of rights, as occurs in most other countries in the
world. There are however, human rights acts in Victoria and the ACT. These laws include
common civil and political rights but do not include social and economic rights such as the
rights to health, housing or social security. Nevertheless, they may still be used in cases
where people’s equality or dignity rights have been violated in relation to social security
issues. There are also proposals for constitutional reform to recognise indigenous people


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which may include broader rights to equality. And there are reforms underway to harmonise
the various anti-discrimination laws into a single Act.

The Government’s Human Rights Framework does, however, contain some commitments to
strengthen the promotion and protection of human rights in Australia which include:

      establishing a Parliamentary Joint Committee on Human Rights to provide greater
       scrutiny of legislation for compliance with Australia’s international human rights
       obligations;

      requiring that each new Bill introduced into Federal Parliament is accompanied by a
       Statement of Compatibility with Australia’s international human rights obligations;

      investing in human rights education;

      developing a new National Action Plan on Human Rights;

      consolidating and harmonising federal anti-discrimination laws into a single Act.

The Human Rights (Parliamentary Scrutiny) Act 2011 passed into law on 25 November 2011.
Government ministers are now required to prepare statements of compatibility to show how
their new bills are consistent with international human rights. Example of these can be found
in relation to the recent ‘Family Assistance Amendment Bill of 2012’ and the Social Security
and Other Legislation Amendment (Income Support and Other Measures) Bill 2012.

Non-governmental bodies need to keep a close eye on these statements to assess whether the
minister is correctly interpreting international law and raise concerns when they are not.
Monitoring of and participation in hearings of the Parliamentary committee could also be
important. Ensuring that government education programs on human rights contain
information on social and economic rights and in particular, the right to social security is also
important. And of course groups need to do their own human rights education in
communities.

Strategies from other countries:

A number of countries have the right to social security in their constitutions. Welfare rights
groups have been able to take governments to court to enforce these rights. This has
encouraged such organisations to compile research and develop creative arguments and
strategies to push for change in court and beyond it. In South Africa a case (Khosa) dealing
with the rights of non-citizens who were permanent residents to get social assistance grants
succeeded. The constitutional court found that the equality rights of the people who brought
the case had been violated as they were treated differently from citizens and this was unfair
discrimination. Here the court said:

       Sharing responsibility for the problems and consequences of poverty equally as a
       community represents the extent to which wealthier members of the community view
       the minimal well-being of the poor as connected with their personal well-being and
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       the well-being of the community as a whole. In other words, decisions about the
       allocation of public benefits represent the extent to which poor people are treated as
       equal members of society (para 74).
Similarly, (Reyes Aguilera, Daniela v Argentina (2007)) the Supreme Court of Argentina
held that harsh restrictions on access to disability pensions for immigrants were
unconstitutional.

Also in South Africa, where I worked, a group of men challenged the fact that the Old age
pension was given to women at age 60 and men only at 65. The court had not yet reached a
decision in the case when the government announced that it was changing the law and
lowering the pension age for men. This demonstrated that public pressure and the fear of non-
compliance with the bill of rights had an impact on government in changing its laws.
Similarly, advocacy and litigation around the age of eligibility of a child support grant has led
to this grant being gradually increased for children aged 7 to now reaching all children under
18 years of age. All of these cases point to the strong relationship between equality or non-
discrimination and the right to social security. But there are many other ways that the right to
social security can be asserted to challenge government cutbacks or lack of provision of the
right. Also, poor service delivery and inaccessible social security can be tackled in rights
terms. Of course, courts have their limits and are just one of the many vehicles for achieving
change and justice in the area of social security.

The right to social security is an entitlement – it is the right of all people in Australia. Where
it is being violated or depleted it should be challenged and where it is not being provided it
should be demanded.




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