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 labour” as inadmissible for lack of
substantiation.
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 per
cent 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 cancelling
unemployment assistance because a person does not want
to participate in the Work for the Dole programme 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.11
The author has also failed to exhaust
administrative and judicial remedies. In her complaint, the
author challenges the “Work for Dole” programme
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 labour.”
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.
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.
11
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).
75
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