Waiting for Dignity in Australia: Migrant Rights to Social Security and Disability Support under International Human Rights Law

Abstract

This article argues that the two year waiting period for social security benefits, which applies to all migrants to Australia, unlawfully interferes with the rights to social protection and an adequate standard of living under the International Covenant on Economic, Social and Cultural Rights (ICESCR), even when the State’s discretion to ‘progressively realise’ socio-economic rights is duly taken into account. This article further argues that the ten year waiting period for the Disability Support Pension interferes with the human rights of newly arrived migrants relating to an adequate standard of living and social protection, health, and potentially even freedom from inhuman or degrading treatment, which is contrary to the Convention on the Rights of Persons with Disabilities and equivalent provisions of the ICESCR. It also examines whether these waiting periods constitute impermissible discrimination under human rights law, on the grounds of nationality, disability, or ‘any other status’, and concludes that it is difficult to establish at law that the waiting periods are unlawfully discriminatory. The restrictions nonetheless embody an outmoded ‘medicalised’ policy approach to disabilities which considers persons with disabilities economic burdens and objects of charity, rather than honouring their inherent worth, human dignity and contribution to social diversity.

Keywords: migration, social security, disability, socio-economic rights, Convention on the Rights of Persons with Disabilities

JEL Classification: K10, K30, K33