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1. The author of the
communication, initially dated 19 June 2001, is Bernadette Faure, an
Australian and Maltese national, born 22 April 1980. She claims to be a
victim of a violation by Australia of her rights under articles 2,
paragraphs 2 and 3(a)-(c), and 8, paragraph 3. She is represented by her
father, Leonard Faure, who acts with her express authority.
FACTUAL BACKGROUND
2.1 After leaving high school aged 16 in 1996, the author continuously drew
unemployment benefits. On 7 July 1997, the Social Security Legislation
Amendment (Work for the Dole) Act 1997 ("the 1997 Act") entered into force.
2.2 On 3 November 2000, after having been referred to and attending an
"Intensive Assistance" program at IPA Personnel Ltd (a government-accredited
private employment agency), the author failed to comply with the terms of
her "Preparing for Work Agreement" (first "activity test" breach in two
years). As a result, on 13 November 2000, a rate reduction period was
imposed on her unemployment benefit. [FN1]
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[FN1] The State party explains that the reduction in payment for a first
activity test breach in two years is 18% of the person's maximum basic rate
of payment for 26 weeks.
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2.3 Following completion of the "Intensive Assistance" program, the author
was referred on three occasions to an employer, Mission Australia, to
undertake the Work for Dole program, with an interview scheduled on each
occasion. She did not attend any interview. In the meantime, on 12 June
2001, the Human Rights and Equal Opportunities Commission (HREOC) also
declined to investigate a complaint lodged on her behalf that the Work for
Dole program amounted to a forced or compulsory labour, reasoning that the
alleged violation arose by direct operation of legislation, rather than as a
result of a decision-maker's discretion and therefore fell outside of its
statutory mandate. HREOC observed, in addition, that "...reducing or
canceling unemployment assistance because a person does not want to
participate in the Work for the Dole program does not constitute forced or
compulsory labour, as the nature of the punishment and the degree of
involuntariness does not reach the threshold required to breach article
8(3)(a) of the [Covenant]."
2.4 On 9 July 2001, the author commenced the Work for Dole program,
finishing her initial employment placement on 7 October 2001. After starting
a second employment placement on 24 October 2001, she did not attend the
placement on 30 October and again on 5-6 November. On 22 November 2001, a
rate reduction period was imposed on her unemployment benefit for her
unexplained absence on 30 October (second "activity test" breach in two
years). [FN2]
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[FN2] The State party explains that the reduction in payment for a second
activity test breach in two years is 24% of the person's maximum basic rate
of payment for 26 weeks.
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2.5 On 6 December 2001, her unemployment benefit was entirely cancelled for
her unexplained absence on 5-6 November 2001 (her third "activity test"
breach in two years) and she left the Work for Dole program. Prior to the
cancellation, she was contacted and claimed that she had been too ill to
attend the employment placement. She was unable to provide a medical
certificate for her absence, claiming to have lost the original one provided
by her doctor, and was unable to provide a copy from the doctor. The
cancellation resulted in a two months non-payment period of her unemployment
benefits.
2.6 On 10 December 2001, an administrative review officer affirmed the
decision to cancel the author's unemployment benefit. On 26 February 2002,
her unemployment benefits were reinstated following a renewed application
for payment of unemployment benefits.
THE COMPLAINT
3.1 The author alleges that she was required to perform forced or compulsory
labour in violation of article 8, paragraph 3(a), of the Covenant, in
particular by being required to attend the Work for Dole program. If she
refused to participate, she would be impoverished by a reduction or
suspension of her unemployment benefits.
3.2 The author further claims that she is without a remedy for her
complaint, in violation of article 2, paragraphs 2 and 3(a),(b) and (c), of
the Covenant, as her complaint to HREOC was not accepted for consideration.
In particular, she argues that HREOC had the authority to make reports or
recommendations to the Attorney-General which could have been utilized in
this case.
THE STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY AND MERITS
4.1 By submissions of 17 June 2002, the State party challenges both the
admissibility and merits of the communication. The State party details the
operation of its WFD program, imposing on persons such as the author the
obligation to perform certain community labour, upon pain of reduction of
unemployment benefits. The scheme is described in greater detail in Annex to
the communication.
4.2 As to the admissibility of the communication, the State party argues
that the principal claim under article 8 is inadmissible for failure to
exhaust domestic remedies, as the author's participation in the Work for
Dole program could have been challenged under an extensive domestic social
security review and appeals system established by law. Administrative review
is available for any decision made in relation to social security
entitlement - thus, a decision to include participation in a Work for Dole
program in a person's 'Preparing for Work' Agreement is subject to review,
as is a decision that a person participate in a Work for Dole program as
part of the general activity test. This objective review is carried out by
specialist officer, not being the original decision-maker. Thereafter,
review is available in the Social Security Appeals Tribunal and appeal to
the Administrative Appeals Tribunal. Further appeal to the federal courts
and the High Court of Australia then is available.
4.3 In the present case, the author only sought an internal administrative
review on 10 December 2001, not availing herself of the further appeals
available. The communication was submitted well prior to that date, despite
the author having been notified on numerous occasions as to her appeal
rights. She can thus be taken to have been reasonably aware of her review
rights, and any doubts she may have about their effectiveness cannot absolve
her of her obligation to pursue them.
4.4 The author also did not apply for judicial review of HREOC's decision
that it did not have jurisdiction to entertain her complaint on the basis
that it concerned direct operation of social security law, rather than any
exercise of discretion by a decision-maker. Alternatively, the State party
argues that the author could have applied to Federal Court directly for
judicial review of the decision to refer her to a Work for Dole program.
4.5 Turning to the subsidiary claim under article 2, the State party argues
that the claim under article 2 is incompatible with the Covenant and further
inapplicable to the facts pleaded. The State party refers to the Committee's
jurisprudence that article 2 is of accessory nature to the substantive
articles of the Covenant, and thus, in the absence of a violation of article
8 of the Covenant, a separate article 2 issue cannot arise. In addition, the
communication contains no claims that are capable of amounting to a breach
of article 2, nor does the communication set out the nature of the alleged
violation claimed.
4.6 The State party adds that this claim is inadmissible for failure to
exhaust domestic remedies on the basis of the arguments set out in this
respect in relation to article 8, supra. Finally, it contends this claim is
unsubstantiated, for purposes of admissibility: it is a mere assertion, with
no evidence submitted to suggest that the author has been denied an
effective remedy.
4.7 On the merits of the article 8 claim, the State party points out that in
the absence of substantive consideration of the issue of forced labour by
the Committee, the Committee should be guided by the approaches of other
international organizations. [FN3] While reference to the ILO conventions on
forced labour (No. 29 of 1930) and on the abolition of forced labour (No.
105 of 1957) was deliberately omitted from the Covenant because of
difficulties with the ILO definitions, it is suggested that conclusions of
the ILO's Committee of Experts can still be drawn on for assistance in
determining the "permissible" forced or compulsory labour that can be
imposed. An academic commentator argues that States must meet certain
minimum labour and social welfare law standards contained in the two ILO
conventions in order to come within the exceptions set out in article 8,
paragraph 3, of the Covenant. [FN4]
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[FN3] The State party refers to but two occasions where the issue was even
touched on: Timmerman v The Netherlands Communication No. 871/1999, Decision
adopted on 29 October 1999, and Wolf v Panama Communication No. 289/1988,
Views adopted on 26 March 1992. [Note to the Committee: In the first case,
the Committee declared inadmissible a claim that engaging in certain
professional employment on a disputed pay scale amounted to forced labour,
while in the second, the Committee found unsubstantiated a claim that a
remind prisoner had to perform forced labour while in pre-trial custody.]
[FN4] Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR
Commentary, N.P. Engel, Kehl am Rhein, 1993, at 157.
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4.8 The State party concedes that the ILO Committee of Experts monitoring
Chilean legislation on unemployment benefits considered a loss of benefits
imposed if a person refused to carry out community relief work to be
"equivalent to a penalty in the sense of the Convention." It distinguishes
the schemes, however, on the basis that, in Chile, payment of unemployment
benefits was conditional upon payment of contributions for 52 weeks of the
preceding two years, while in Australia benefits are not conditional upon
any prior contribution. In addition, Chilean unemployment benefits are
time-bound, while in Australia they are not. In the State party's view,
therefore, the Committee of Experts' comments on Chile are not presently
relevant.
4.9 Turning to the relatively scarce jurisprudence arising under the similar
terms of article 4 of the European Convention on Human Rights, the State
party refers to the case of Van der Mussele v Belgium. [FN5] The European
Court there held that a law student, voluntarily choosing to enter the legal
profession, could not be held to have been required to perform forced labour
by a requirement to undertake a certain amount of pro bono work during his
clerking apprenticeship in order to register as advocates. In the Court's
view, the service did not impose a burden so excessive or disproportionate
to the advantages attached to future exercise of the profession that it
could be treated as not having been voluntarily accepted beforehand. Given
that the governing ideas of the exceptions to article 4 were the general
interest, social solidarity and what is in the ordinary or normal course of
affairs, the requirement of service was not disproportionate or
unreasonable.
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[FN5] Series A, 70 (1983).
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4.10 In X v The Netherlands, [FN6] the European Commission of Human Rights
found that a suspension for 26 weeks of a builder's unemployment benefit due
to the builder's refusal, on grounds of alleged over-qualification, of a job
offer made to him did not amount to forced or compulsory labour. The
Commission reasoned that nobody was forced, by penalty, to accept a job
offer made by competent public authorities. Rather, acceptance of such an
offer was simply a condition to receipt of unemployment benefits, a refusal
being penalized only by temporary loss of those benefits.
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[FN6] No. 7602/76, 7 DR 161 (1976).
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4.11 The State party observes that the Covenant's exception for "any work or
service which forms part of normal civic obligations" is not specifically
defined, but should be interpreted against the backdrop of the minimum
standards contained in ILO Convention No. 29. That Convention, in article 2,
paragraph 2(e), excludes:
"...minor communal services of a kind which, being performed by the members
of the community in the direct interests of the said community, can
therefore be considered as normal civic obligations incumbent on members of
the community, provided that the members of the community or their direct
representatives shall have the right to be consulted in regard to the need
for such services."
4.12 It is also relevant that article 11 sets out a minimum age of 18 and
prior medical examinations for those required to perform compulsory labour,
while article 12 states that the maximum labour period shall not exceed
sixty days per year. Article 13 provides that the working hours in question
should correspond to those of voluntary labour, and article 14 sets out cash
remuneration not less than prevailing for similar work in the district.
Article 15 applies workers' compensation and incapacitation legislation to
both forms of labour. The State party argues that the Work for Dole program
generally satisfies the minimum standards of the Convention. It is quite
proper, as recognized in the above-mentioned ILO instruments, to place
reasonable conditions on social security payments. By participating in the
Work for Dole program, long-term unemployed persons enhance their skills,
employability and thus future self-sufficiency. Unemployment benefits in
Australia are not dependent on prior contributions, nor are they time-bound.
Nobody is forced to accept them, but if an individual does choose to do so,
compliance with participation in a Work for Dole program is a reasonable
condition.
4.13 The State party argues that the present communication raises issues of
compulsory rather than forced labour, given the absence of any physical or
mental constraint. Applying the Van der Mussele test developed by the
European Court, the author's participation in the Work for Dole program does
not even reach the threshold of compulsory labour, as neither the necessary
intensity of penalty or of involuntariness are involved. The State party
points out that it carefully considered the program's compatibility with its
international obligations, as borne out by statements made during the second
parliamentary reading of the draft Bill:
"The government is cognizant of its international obligations. It has taken
advice of the Attorney-General's Department that a work for the dole
initiative should not contravene our international obligations, provided
that the work offered under work for the dole is 'suitable' and 'reasonable'
for that person. The fact that payment of unemployment allowance is not
based on any prior mandatory contribution, coupled with the positive
benefits of work for the dole for participants, means that the initiative
should be regarded as reasonable in its requirement of a contribution to the
community from participants."
4.14 Assessing the two dimensions of penalty and involuntariness, the State
party points out that a failure to participate in the program, without
reasonable excuse, initially only leads to a reduction in the rate of
unemployment benefits payable, with repeated failure - again without
reasonable excuse - leading to non-payment for 2 months only. There is no
absolute right to social security, and ILO standards on unemployment
benefits accept that they may be withdrawn where an individual refuses an
offer of suitable and reasonable employment. [FN7] In this light, there is
no element of penalty for failure to participate in the Work for Dole
program that would raise participation in the program to the threshold of
compulsory labour.
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[FN7] ILO Convention No. 44 of 1934 Ensuring Benefit or Allowances to the
Involuntarily Unemployed and ILO Convention No. 168 of 1988 Concerning
Employment Promotion and Protection against Unemployment.
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4.15 In terms of involuntariness, the State party argues that the program
modalities satisfy requirements of reasonableness and proportionality.
Unemployed people are not required to accept benefits but, if they do, a
pre-condition to receipt may be participation in the Work for Dole program.
Long-term youth unemployment is a serious problem in Australia, and this
program is part of a series of innovative responses to the problem. The
program is based on the concept of mutual obligation between an unemployed
person and the community supporting him or her. The relevant projects
provide real tangible benefits to communities in the form of community
facilities, infrastructure, care and assistance. The program is specially
designed to improve the skills, employability, self-esteem and experience of
young unemployed people. 18-20 year olds are only required to work 12 hours
per week, while older persons work 15 hours per week, with working hours
corresponding to those in the general marketplace.
4.16 In addition, participants can only work in the program for six months
at a time, and for six months per year. Job search requirements applicable
to participants are reduced to two employer contacts per fortnight. Checks
and balances, coupled with review processes, ensure specific work is
suitable and reasonable, with a participant being able to raise these
issues. The State contracts personal injury and third party liability
insurance for participants. Finally, a fortnightly supplement is paid in
view of the extra costs. In light of these elements, the burden the Work for
Dole program imposes on young unemployed persons as a condition of receiving
unemployment benefits is not unreasonable, or disproportionate when weighed
up to the positive benefits received by them and the community.
4.17 The author had received unemployment benefits for four years before her
referral to the program, at age 21. Previously, she had been involved in a
number of activities enhancing her employability, including a year-long
Intensive Assistance program. Her benefits were cancelled because of her
failure to provide supporting evidence for alleged illness and thus being
unable to demonstrate a reasonable excuse for her absence. This decision was
upheld on review. In the review, she also contended she was unable to carry
out concreting work as part of the project. However the Community Work Co-ordinator
for the project advised that the concreting was minor, there were other
young women involved and nobody was asked to do anything they were incapable
of physically performing. In the State party's view, these processes show
how checks and balances work to ensure that Work for Dole participants are
given reasonable and suitable work.
4.18 In conclusion, the State party invites the Committee to find that the
author was not required to engage in compulsory labour, within the meaning
of article 8 of the Covenant, or that, if so, the labour is justified by the
exception of "normal civic obligation" contained in article 8, paragraph
3(c)(iv), resulting in no violation of the Covenant.
4.19 On the merits of the article 2 claims, the State party argues that as
the substantive claim under article 8 is either inadmissible or without
merit, the assertion of an article 2 claim must also be considered to be
without merit. In any event, the author has not provided evidence sufficient
to enable a proper consideration of this claim. Even if the communication
could be said to contain any substantiated evidence, the State party
contends, in the light of its admissibility submissions on article 2, that
it fully protects Covenant rights under common law and Federal, State and
Territory legislation. In the present case, numerous appeal and review
instances were available but not utilized. Her failure to exhaust domestic
remedies also supports a finding that there is no violation.
4.20 On the specific claim that HREOC did not make a report and
recommendations to the Attorney-General, the State party points out that
this was because HREOC rejected the author's complaint and thus cannot serve
as a basis for an article 2 claim.
THE AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5.1 By letter of 1 September 2002, the author challenged the State party's
submissions, rejecting the present applicability of the Van der Mussele
reasoning of the European Court, on the basis that she was not in a
apprentice-teacher relationship or training for a specific vocation
compulsory labour. In any event this precedent is inapplicable as she was
never offered, and thus could not have refused, suitable work, as said to be
required by the ILO instruments. Rather, she was enrolled into the Work for
Dole program, and subsequently had her unemployment benefits suspended, in
the absence of a prior offer of suitable work. She emphasizes that she was
enrolled into the Work for Dole program for purposes of doing community
work. She rejects the European Commission's reasoning in the X case that
suspension of unemployment benefits cannot be taken as amounting to payments
later suspended without having being offered such work.
5.2 The author argues that the threat, real or perceived, of an entire
suspension of unemployment benefits in the event of her failure to
participate in the Work for Dole program must be taken as imposing a high
degree of mental constraint, contending that "the prospective scenario of
starvation cannot be reasonably construed otherwise".
5.3 The author rejects the contention that domestic remedies were not
exhausted, arguing that HREOC and certain Work for Dole administrative
correspondence did not explicitly advise a right of review. In any event,
the threat of cancellation of unemployment benefits described in the latter
conveyed the impression that no right of review was available. The author
cites the Committee's decision in Landry v Canada [FN8] as support for the
proposition that in such circumstances the State party is stopped from
advancing a claim that domestic remedies have not been exhausted.
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[FN8] Communication No. 112/1981, Decision adopted on 8 April 1986.
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ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
6.2 On the issue of exhaustion of domestic remedies, the Committee observes
that there is no dispute that the author comes squarely within the scope of
the impugned legislation, with the alleged violation deriving from the
direct application of the law to her. As the Committee observed in a similar
context, it would be futile to expect an author to bring judicial
proceedings which would merely confirm the undisputed fact that the primary
legislation in question, in this case the 1997 Act and the requirement of
participation in the Work for Dole program imposed pursuant to it, does in
fact apply to her, when what is being challenged before the Committee is the
substantive operation of that law, the content of which is not open to
challenge before the domestic courts. [FN9] As the State party has not shown
how the substantive content of the Work for Dole regime set out in the 1997
Act that is applicable to her can be challenged in the domestic courts, the
Committee considers that it is not precluded by article 5, paragraph 2(b),
of the Optional Protocol from consideration of the case.
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[FN9] See the Committee's rejection of the same argument with respect to
mandatory detention provisions of the Migration Act in A v Australia, Case
No 560/1993, Views adopted on 4 March 1997, C v Australia, Case No 900/1999,
Views adopted on 28 October 2002, Baban et al. v Australia, Communication
1014/2001, Views adopted on 6 August 2003, and Bakhtiyari v Australia, Case
No 1069/2002, Views adopted on 29 October 2003.
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6.3 As to the argument that the claims under articles 2 and 8 fall ratione
materiae outside the scope of the Covenant and are insufficiently
substantiated, the Committee considers that the author has advanced
arguments of a sufficient weight to substantiate, for purposes of
admissibility, her claims under these articles of the Covenant.
CONSIDERATION OF THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
7.2 Turning first to the claim under article 2 of the Covenant, the
Committee recalls that article 2 requires a State party to provide an
effective remedy for breaches of Covenant rights. In its decision in the
case of Kazantzis v Cyprus, [FN10] the Committee stated that "Article 2,
paragraph 3, requires that in addition to effective protection of Covenant
rights States parties must ensure that individuals also have accessible,
effective and enforceable remedies to vindicate those rights .... A literal
reading of this provision seems to require that an actual breach of one of
the guarantees of the Covenant be formally established as a necessary
prerequisite to obtain remedies such as reparation or rehabilitation.
However, article 2, paragraph 3(b), obliges States parties to ensure
determination of the right to such remedy by a competent judicial,
administrative or legislative authority, a guarantee which would be void if
it were not available where a violation had not yet been established. While
a State party cannot be reasonably required, on the basis of article 2,
paragraph 3(b), to make such procedures available no matter how
unmeritorious such claims may be, article 2, paragraph 3, provides
protection to alleged victims if their claims are sufficiently well-founded
to be arguable under the Covenant." (internal footnote omitted)
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[FN10] Case No 972/2001 , Decision adopted on 7 August 2003, at paragraph
6.6.
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7.3 Applying this reasoning to the present claim that the State party did
not provide an effective remedy for the alleged breach of article 8 of the
Covenant, the Committee observes, with reference to its admissibility
considerations identified above in the context of exhaustion of domestic
remedies, that, in the State party's legal system, it was and remains
impossible for a person such as the author to challenge the substantive
elements of the Work for Dole program, that is, the obligation imposed by
law on persons such as the author, who satisfy the pre-conditions for access
to the program, to perform labour in exchange for receipt of unemployment
benefits. The Committee recalls that the State party's proposed remedies
address the question of whether or not an individual in fact satisfies the
requirements for access to the program, but no remedy is available to
challenge the substantive scheme for those who are by law subject to it.
7.4 As the Committee's consideration (infra) on the merits of the
substantive article 8 shows, the question presented undoubtedly raises an
issue, in the language of the Committee's decision in Kazantzis, that was
"sufficiently well-founded to be arguable under the Covenant". It follows,
therefore, that the absence of a remedy available to test an arguable claim
under article 8 of the Covenant such as the present amounts to a violation
of article 2, paragraph 3, read together with article 8, of the Covenant.
7.5 Concerning the principal claim under article 8, paragraph 3, of the
Covenant, the Committee observes that the Covenant does not spell out in
further detail the meaning of the terms "forced or compulsory labour". While
the definitions of the relevant ILO instruments may be of assistance in
elucidating the meaning of the terms, it ultimately falls to the Committee
to elaborate the indicia of prohibited conduct. In the Committee's view, the
term "forced or compulsory labour" covers a range of conduct extending from,
on the one hand, labour imposed on an individual by way of criminal
sanction, notably in particularly coercive, exploitative or otherwise
egregious conditions, through, on the other hand, to lesser forms of labour
in circumstances where punishment as a comparable sanction is threatened if
the labour directed is not performed. The Committee notes, moreover, that
article 8, paragraph 3(c)(iv), of the Covenant exempts from the term "forced
or compulsory labour" such work or service forming part of normal civil
obligations. In the Committee's view, to so qualify as a normal civil
obligation, the labour in question must, at a minimum, not be an exceptional
measure; it must not possess a punitive purpose or effect; and it must be
provided for by law in order to serve a legitimate purpose under the
Covenant. In the light of these considerations, the Committee is of the view
that the material before it, including the absence of a degrading or
dehumanizing aspect of the specific labour performed, does not show that the
labour in question comes within the scope of the proscriptions set out in
article 8. It follows that no independent violation of article 8 of the
Covenant has been made out.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation of
article 2, paragraph 3, read together with article 8, of the Covenant.
9. While in accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy, the Committee is of the view that in the present case its Views on
the merits of the claim constitutes sufficient remedy for the violation
found. The State party is under an obligation to ensure that similar
violations of the Covenant do not occur in the future.
10. Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant to provide an effective
and enforceable remedy in case a violation has been established, the
Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to its Views.
________________________
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.
Pursuant to rule 90 of the Committee's rules of procedure, Committee member
Mr. Ivan Shearer did not participate in the adoption of the present
decision.
The text of an individual opinion signed by Committee member Ms. Ruth
Wedgwood is appended to the present document.
ANNEX
THE STATE PARTY'S DESCRIPTION OF THE WFD PROGRAM
The WFD program was introduced by the 1997 legislation. Its object,
according to the statute, is "to reinforce the principle of mutual
obligations applying to [unemployment benefits] by recognizing that it is
fair and reasonable that persons in receipt of such payments participate in
approved programs of work in return for such payments and to set out the
means by which they may be enabled, or required, to undertake such work".
4.3 The State party points out that a Work for Dole program cannot require
more than 24 or 30 hours' work (up to and beyond 21 years of age,
respectively) per fortnight, and an individual is referred to a program for
a maximum of 6 months per year. To qualify for an unemployment benefit, a
person must generally:
(a) be unemployed;
(b) satisfy the "activity test" or be exempt from it by virtue of, for
example, being in full-time education, being in a remote area, giving birth
to a child, and so forth. The "activity test" requires a person to be
actively seeking and willing to undertake suitable paid work and to attend
such programs, for example the Work for the Dole program, and training that
may be directed;
(c) be prepared to enter into and comply with a 'Preparing for Work'
Agreement, which may include participating in a Work for Dole program; and
(d) satisfy certain other formal criteria of age, residence and the like.
4.4 After receiving an unemployment benefit for six months, an unemployed
person must, if subject to "activity testing", commence a program or
activity of their choice, of which the Work for Dole program is one, geared
towards enhancing their employment prospects. Failure on the part of the
person to choose a program or activity results in referral for a Work for
Dole placement for six months as a matter of administrative practice if:
(a) the person receives the full rate of unemployment benefit;
(b) the person possesses the skills and experience to perform the required
tasks;
(c) the tasks of the employment placement in question are medically
appropriate and do not otherwise pose occupational health and safety; and
(d) certain other requirements are satisfied.
4.5 Once a Work for Dole placement begins, the person's unemployment benefit
is augmented by AUS$21 per week reflecting the extra costs of participating
in the program. Community Work Co-ordinators both assist the person in the
placement and submit, under strict requirements, participation reports to
ensure that participation requirements are being met.
4.6 Failure to commence or complete the Work for Dole program, including
where this forms part of a Preparing for Work Agreement, or failure to
comply with conditions of a Work for Dole program, result, in the absence of
reasonable excuse, in an "activity test" breach and accompanying financial
penalties in the form of reduced payment of unemployment benefits. Any third
such breach within a two year period results in a two-month non-payment of
unemployment benefits.
APPENDIX
INDIVIDUAL OPINION BY COMMITTEE MEMBER MS. RUTH WEDGWOOD
In a world that is still replete with problems of caste, customary systems
of peonage and indentured labor, forced labor in remote areas under
conditions that often mimic slavery, and the disgrace of sexual trafficking
in persons, it demeans the significance of the International Covenant on
Civil and Political Rights to suppose that a reasonable work and training
requirement for participation in national unemployment benefits in a modern
welfare state could amount to "forced or compulsory labor" within the
meaning of Article 8(3)(a).
Australia has a program of unemployment benefits that supports new job
seekers for six months, so long as they are willing to accept gainful
employment. After six months, continued receipt of benefits may be
conditioned on the participant's willingness to enhance his or her job
skills and give something back to the community, through a "Work for Dole"
program. The latter program is limited to 12 hours per week (for persons
under 21 years of age), and 15 hours per week (for persons of 21 years or
older).
The author of this communication, Ms. Bernadette Faure, began to draw
unemployment benefits immediately after leaving high school in 1996. In
November 2000, after attending an "Intensive Assistance" program at a
government-accredited employment agency, she failed to comply with the terms
of a "Preparing for Work Agreement" and her public benefit was partially
reduced. She then failed to attend three scheduled interviews with an
employer called "Mission Australia" as part of the Work for Dole program.
Finally, in July 2001, she took part successfully in the "Work for Dole"
program and worked at a job placement until 7 October 2001. She started
another placement on 24 October 2001, but failed to show up on 30 October or
5-6 November 2001, and did not corroborate her claim of illness with any
medical certificate. The unexcused absence on 30 October resulted in a rate
reduction of 24 percent and the second absence resulted in cancellation of
her benefits. Her benefits were reinstated on 26 February 2002.
Ms. Faure asserts that Australia has imposed a type of "forced or compulsory
labor" forbidden by the Covenant, by requiring that she should take part in
a work and training program as a condition of receiving public unemployment
benefits. The state party argues that the program contributes to the
acquisition of employment skills, and is a form of "mutual obligation" that
respects the claims of the community and the job seeker, Ms. Faure
characterizes the work requirement in terms one might have thought
originally aimed at horrific instances such as the forced labor required by
colonial powers to build canals and roads, rather than the mutual
obligations of a modern democratic society.
Professor Manfred Nowak, in his work on the UN Covenant on Civil and
Political Rights, CCPR Commentary (2nd edition 2005), at page 202, has
concluded that "The mere lapse of unemployment assistance when a person
refuses to accept work not corresponding to his or her qualifications does
not ... represent a violation [of Article 8]; in this case, neither the
intensity of the involuntariness nor that of the sanction reaches the degree
required for forced or compulsory labour." Professor Nowak's common-sense
assessment is faithful to the purposes of Article 8. On the uncontested
facts of this case, I would dismiss the author's claim of "forced or
compulsory labor" as inadmissible for lack of substantiation.
The author has also failed to exhaust administrative and judicial remedies.
In her complaint, the author challenges the "Work for Dole" program because,
inter alia, her work assignments were not "suitable" (e.g., she was required
to learn how to apply "concrete" in a community project) and did not amount
to training for a "specific vocation." See Views of the Committee,
paragraphs 4.17 and 5.1 supra. Thus, she says, her assignments cannot be
characterized as apprenticeship or vocational training that might escape the
opprobrium of "forced labor."
But the author did not challenge the "suitability" of her assignments
through the framework of administrative and judicial remedies available in
Australia for a "Work for Dole" participant. A beneficiary is apparently
entitled to challenge a particular work assignment, or dispute its use as a
"general activity test" for the continued receipt of benefits. See id.,
paragraphs 4.2 - 4.4, supra. The appeals include review by a specialist
officer, and remedies in the Social Security Appeals Tribunal,
Administrative Appeals Tribunal, federal courts and High Court.
So, too, after the author's unexcused absences from her employment placement
resulted in a loss of benefits, she declined to pursue any appeal of the
decision beyond a first-level review, even though she was "notified on
numerous occasions as to her appeal rights." See id., paragraph 4.3.
It is true that the author did seek early intervention by the Australian
Human Rights and Equal Opportunities Commission, after failing to show up
for three scheduled interviews at Mission Australia, and suffering an 18
percent reduction in her benefits. See id., paragraphs 2.2-2.3. In a
decision on 12 June 1991, the Australian human rights commission concluded
that its jurisdiction was limited to the discretionary decisions of
government personnel, rather than the review of statutory mandates. But the
Australian human rights commissioners also observed on the merits that
"reducing or canceling unemployment assistance because a person does not
want to participate in the Work for the Dole program does not constitute
forced or compulsory labour, as the nature of the punishment and the degree
of involuntariness does not reach the threshold required to breach article
8(3)(a) of the Covenant." The author did not apply for judicial review of
the Commission's decision. [FN11]
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[FN11] In Baban et al. v. Australia, Communication No 1014/2001, Views
adopted on 6 August 2003, this member offered the view that the Committee
"should not presume what the courts of the State party might decide in a
particular case. A court's interpretation of parliamentary intent may be
informed by Covenant norms, and the permissible inference that parliament
would have wished to comply with the State party's treaty obligations." See
also Young v. Australia, Case No. 941/2000, Views adopted on 6 August 2003
(concurring opinion of R. Wedgwood).
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By virtue of these facts, it is difficult to conclude that the author has
exhausted her domestic remedies. Nor has she established that the State
party failed to provide an effective remedy as required by Article 2 for an
"arguable" violation of Covenant rights.
[signed] Ms. Ruth Wedgwood
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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