particular by being required to attend the Work for
Dole programme. If she refused to participate, she
would be impoverished by a reduction or suspension
of her unemployment benefits.
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 programme.
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.
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.
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 programme, 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.
4.6 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.
4.2 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 programme 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 programme 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 programme 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.
4.7 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. 3
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.4
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.
3
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 pretrial
custody.]
4
Manfred Nowak, U.N. Covenant on Civil and Political
Rights: CCPR Commentary (N.P. Engel, Kehl am Rhein,
1993), p. 157.
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
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