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Social Services Legislation Amendment (Cashless Debit Card) Bill 2017

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2016-2017-2018

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

SOCIAL SERVICES LEGISLATION AMENDMENT

(CASHLESS DEBIT CARD) BILL 2017

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Social Services, the Honourable Dan Tehan MP)



SOCIAL SERVICES LEGISLATION AMENDMENT

(CASHLESS DEBIT CARD) BILL 2017

 

 

OUTLINE

 

These amendments extend the trial of cashless welfare arrangements to 30 June 2019.  The amendments also specify that the trial areas are East Kimberley and the Included Communities, Ceduna and the Surrounding Region and Goldfields

 

Financial impact statement

 

The financial impact of these amendments is not for publication as negotiations with potential commercial providers are yet to be finalised.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



SOCIAL SERVICES LEGISLATION AMENDMENT

(CASHLESS DEBIT CARD) BILL 2017

 

Government amendments

 

The amendments to the Bill specify that the sites for the cashless debit card trial are East Kimberley and the Included Communities, Ceduna and the Surrounding Region and Goldfields. The amendments also extend the cashless debit card trial until 30 June 2019.

 

The Bill retains existing legislated limitations on trial parameters in relation to the number of sites, participant numbers and duration of the Cashless Debit Card program.  Additionally, the Bill removes the ability for trial areas to be determined under legislative instrument and instead provides for them under the primary legislation.  The Minister will instead be able to declare that specific parts of the Ceduna area, East Kimberley area and Goldfields area are not trial areas.

 

NOTES ON AMENDMENTS

 

Amendment 1 omits Schedule 1, items 1 and 2, page 3 (lines 4-8) of the Bill, which would have repealed section 124PF of the Social Security (Administration) Act 1999 and made a consequential change to the heading of Subdivision A of Division 2 of Part 3D.  Section 124PF of the Social Security (Administration) Act 1999 currently provides that the cashless debit card trial will occur in up to three discrete locations, include no more than 10,000 people, and will end on 30 June 2018. 

 

Amendment 1 substitutes Schedule 1, items 1 and 2, page 3 (lines 4-8) with the following amendments:

 

Item 1 inserts definitions of Ceduna area , East Kimberley area , Goldfields area , and Local Government Area into subsection 124PD(1) of the Social Security (Administration) Act 1999.  

 

Ceduna area means Ceduna within the meaning of the Social Security (Administration) (Trial Area—Ceduna and Surrounding Region) Determination 2015 as in force on 15 March 2016 and includes the Surrounding Region (within the meaning of that determination as so in force).

 

At 15 March 2016 the Social Security (Administration) (Trial Area-Ceduna and Surrounding Region) Determination 2015 defined Ceduna as the area of the District Council of Ceduna as defined in accordance with the Local Government Act 1999 (SA).  This area is commonly referred to as the Ceduna local government area.   Surrounding Region is defined as the area composed of and limited to the Australian Bureau of Statistics’ 2011 Australian Statistical Geography Standard (ASGS) Statistical Area Level 1s (SA1) of 40601113409, 40601113410, 40601113501 and 40601113502.

 

This description identifies areas in South Australia west of Ceduna and south of the APY lands, as depicted in the map below:

 

 

The geographical boundaries of SA1 areas in the ASGS can also be viewed using the online tool provided by the Australian Bureau of Statistics (ABS) available at:

 

http://betaworks.abs.gov.au/betaworks/betaworks.nsf/projects/ASGSBoundariesOnline/frame.htm .

As at the commencement of the Social Security (Administration) (Trial Area-Ceduna and Surrounding Region) Determination 2015 , the Surrounding Region included the communities of Bald Hill, Betts Corner, Bookabie, Border Village, Bulinda, Cactus Beach, Ceduna, Ceduna Town Camp, Charra, Chundaria, Colona, Coorabie, Cungena, Denial Bay, Dinah Line, Emu Farm, Fowlers Bay, Glen Boree, Head of the Great Australian Bight, Kalanbi, Koongawa Dundee, Koonibba, Laura Bay, Lookout Hill, Maltee, Merghiny, Mudamuckla, Munda Munda Wata Tjina, Munda Wanna-Mar, Nadia, Nanbona, Nanwoora, Nullarbor, Nundroo, Nunjikompita, Oak Valley, Over Road, Penong, Pintumba, Scotdesco, Smoky Bay, Tallowon, Thevenard, Tia Tuckia, Uworra, Wandana, Warevilla, Watraba, White Well Corner, Yalata, Yarilena, Yellabinna and Yumbarra.

 

East Kimberley area means East Kimberley within the meaning of the Social Security (Administration) (Trial Area-East Kimberley) Determination 2016 as in force on 26 April 2016 and includes the areas of each of the Included Communities (within the meaning of that determination as so in force).

 

At 26 April 2016, the Social Security (Administration) (Trial Area-East Kimberley) Determination 2016 defined East Kimberley as the area composed of and limited to the Australian Bureau of Statistics’ 2011 Australian Statistical Geography Standard (ASGS) Statistical Area Level 1s (SA1) of 5120808, 5120810, 5120802, 5120805, 5120801, 5120807, 5120815, 5120812, 5120814, 5120816, 5120818, 5120811 and 5120817.  Included Communities are defined in Schedule 1 of the Social Security (Administration) (Trial Area-East Kimberley) Determination 2016 as follows:

 

Included Communities:

 

NAME

ALTERNATE NAME 1

ALTERNATE NAME 2

ALTERNATE NAME 3

ALTERNATE NAME 4

ALLIGATOR HOLE

ALLIGATOR COMMUNITY

ALLIGATOR HOLE COMMUNITY

ALLIGATOR CAMP

 

BELL SPRINGS

 

 

 

 

COCKATOO SPRINGS

NGUNULUN

NGUNULUM

 

 

DINGO SPRINGS

YARDANGARLI

YARDUNGARL

 

 

FOUR MILE

4 MILE

 

 

 

GEBOOWAMA

MORNING GLORY

GEBOOWANA

GEBOWAMA

ROCKY SPRING

GULBERANG

8 MILE

EIGHT MILE (GULBERANG)

GALBURRING

GULBURANG

HOLLOW SPRINGS

WOOLEREEREERLING

WOOLERREGERBERLENG

WOOLIE

 

NGULWIRRIWIRRI

FOUR MILE CREEK

NGULLY

 

 

RED CREEK

RED CREEK

BILJING BILGING BINGAR

BILJING BILJING BINGARR

 

DILLON SPRINGS

 

 

 

 

WUGGABUN

WUGGUN

CARD CREEK

WUGGUBUN

WUGGUBYN

WOOLAH

DOON DOON

DOON DOON STATION

DUNHAM RIVER

 

GLEN HILL

MANDANGALA

 

 

 

MUNTHANMAR

 

 

 

 

MUD SPRINGS

RIBINYUNG DAAWANG

RIBINYUNG DAWANG

ROWENA DOWNS

RIBIMYUNG DAWANG

MINIATA

 

 

 

 

  

 

These descriptions identify an area and various communities in Western Australia, as depicted in the map below. Included Communities are denoted with a blue rather than grey dot in the map. The area which is to the north of the red dotted line is East Kimberley referred to by ASGS SA1 areas.

 

 

The geographical boundaries of SA1 areas in the ASGS can also be viewed using the online tool provided by the Australian Bureau of Statistics (ABS) available at:

 

http://betaworks.abs.gov.au/betaworks/betaworks.nsf/projects/ASGSBoundariesOnline/frame.htm .

 

 

Goldfields area means the following Local Government Areas, as at 7 February 2018:

 

Local Government Areas:

 

(a)   the Shire of Leonora;

(b)   the Shire of Laverton;

(c)   the Shire of Kalgoorlie Boulder;

(d)   the Shire of Coolgardie; and

(e)   the Shire of Menzies

 

 

The definition of Goldfields makes it clear that the area is defined by the Local Government Areas designated at 7 February 2018. This will prevent individuals being included in the Goldfields trial area if the boundaries of the Local Government Areas change in the period between commencement of the Bill and the end of the trial period.

 

Local Government Areas means areas designated by the Governor of Western Australia to be a city, town or shire, in accordance with the Local Government Act 1995 (WA).

 

 

Item 2 repeals the definition of trial area in subsection 124PD(1) of the Social Security (Administration) Act 1999 and provides for a new definition of trial area .

 

trial area means the East Kimberley area, the Ceduna area and the Goldfields area but excludes any part of such an area determined in an instrument made under subsection 124PD(2) 

 

Item 3 repeals and substitutes subsection 124PD(2) of the Social Security (Administration) Act 1999 .  Subsection 124PD(2) currently allows the Minister to specify, by legislative instrument, an area for the purposes of the definition of trial area.  It will no longer be necessary to specify the trial areas by legislative instrument as the trial areas will be specified in subsection 124PD(1) of the Social Security (Administration) Act 1999 .  New subsection 124PD(2) will allow the Minister to determine, by legislative instrument, that parts of the Ceduna area, East Kimberley Area and Goldfields area are excluded from the trial area.

 

This provides the Minister with flexibility to remove localities. This reflects that discussions with communities in the Goldfields area are still ongoing and that requirements for communities who are already on the cashless debit card may change over time.

 

Item 4 amends paragraph 124PF(1)(b) of the Social Security (Administration) Act 1999 to substitute the date of 30 June 2018 with 30 June 2019.  Subsection 124PF(1) currently provides that the cashless welfare arrangements will be trialled during the period beginning on 1 February 2016 and ending on 30 June 2018. Amending the end date in paragraph 124PF(1)(b) to 30 June 2019 will extend the cashless debit card trial until that date.

 

Item 5 amends subsection 124PF(2) of the Social Security (Administration) Act 1999 to remove the reference to “up to 3 discrete” trial areas.  Subsection 124PF(2) will instead refer to the “the” trial areas, which will be specifically defined in subsection 124PD(1) of the Social Security (Administration) Act 1999 as East Kimberley and the Included Communities, Ceduna and the Surrounding Region and Goldfields. 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SERVICES LEGISLATION AMENDMENT

(CASHLESS DEBIT CARD) BILL 2017

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

These amendments extend the trial of cashless welfare arrangements to 30 June 2019.  The amendments also specify that the trial areas are East Kimberley and the Included Communities, Ceduna and the Surrounding Region and Goldfields.  The Minister may, by legislative instrument, exclude parts of East Kimberley and the Included Communities, Ceduna and the Surrounding Region and Goldfields from the trial area.

 

Human rights implications

The Parliamentary Joint Committee on Human Rights conducted a review of the Social Security Legislation Amendment (Debit Card Trial) Bill 2015, which notes that the Cashless Debit Card engages and limits three human rights: the right to social security, the right to a private life and the right to equality and non-discrimination.

 

These rights, and a number of other specific human rights, are addressed in turn below.

 

Objectives

 

The objectives of the Cashless Debit Card, set out in Part 3D of the Act, are to:

 

(a) reduce the amount of certain restrictable payments available to be spent on alcoholic beverages, gambling and illegal drugs; and

(b) determine whether such a reduction decreases violence or harm in the Region; and

(c) determine whether such arrangements are more effective when community bodies are involved; and

(d) encourage socially responsible behavior.

 

In other words, the Cashless Debit Card has the objective of reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behaviour, and reducing the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments.

 

In both Ceduna and the Surrounding Region, and the East Kimberley, there is clear evidence of the harm caused by alcohol in the community.

 

In Ceduna and the Surrounding Region the deaths of six Aboriginal people related to alcohol abuse and sleeping rough were the subject of a coronial inquest in 2011.  In March 2013, the Ceduna Sobering Up Unit had 89.7 per cent occupancy, and breath testing figures that recorded the maximum measurable amount. [i]

 

In a submission to the Senate Standing Committee on Community Affairs, the Mayor of Ceduna, Mr Alan Suter, provided an unsigned affidavit stating that in his role, he has participated in various initiatives to assist with the problems caused by alcohol abuse in Ceduna.  Mr Suter stated that the most effective attempt ‘was a restriction of sales …. [which] reduced the availability of take away alcohol and helped considerably until it was withdrawn by the licensees.’ [ii]

 

As well as alcohol, illegal drug abuse and gambling are also causing unacceptable levels of harm in Ceduna and the Surrounding Region.

 

Ceduna and the Surrounding Region has a high level of welfare dependence and, importantly, there is an openness to participate in the Cashless Debit Card trial from within the community.

 

In a submission to the Senate Standing Committee on Community Affairs, the Executive Chairman of the Wunan Foundation, Mr Ian Trust stated that ‘the East Kimberley experiences…high levels of social dysfunction, including widespread alcohol and drug abuse…Chronic substance abuse in the region has led to a raft of catastrophic social outcomes’. [iii] The Committee heard high levels of social dysfunction in the East Kimberley, including widespread drug and alcohol abuse, has resulted in:

·          high rates of family violence (in 2012-13, there were 100 reported incidents of family violence per 1000 people in the East Kimberley, compared to the next highest figure of 43 incidents per 1000 people in the south-eastern region of WA);

·          high rates of child abuse and neglect:

·          large numbers of children spending their nights on the street rather than returning to unsafe homes;

·          increasing rates of Foetal Alcohol Spectrum Disorder;

·          high rates of suicide (the rate of suicide in the Kimberley is 70 per 100 000 people, compared to the national rate of 11 per 100 000 people); and

·          high rates of alcohol-fuelled violence (the hospitalisation rate for assault in Kununurra is significantly higher than the national average due to alcohol-fuelled violence). [iv]

 

In the East Kimberley, according to WA Police data, in 2013-14 in Western Australia there were 1,456 offences against the person for every 100,000 people. The Kimberley region had offence rates against the person 4.5 times that of Western Australia overall. [v]

 

The final independent evaluation of the Cashless Debit Card Trial by ORIMA Research was released on 1 September 2017, and included results from the two trial sites, Ceduna and the East Kimberley.

 

The evaluation found that the Cashless Debit Card has had a “considerable positive impact” in the communities where it has operated. The evaluation also concluded that the trial “has been effective in reducing alcohol consumption and gambling in both trial sites and [is] also suggestive of a reduction in the use of illegal drugs”, and “that there is some evidence that there has been a consequential reduction in violence and harm related to alcohol consumption, illegal drug use and gambling.”

 

In particular, the evaluation reported the following findings:

·          Of people surveyed who drank alcohol before the trial started, 41 per cent  reported drinking alcohol less frequently (up from 25 per cent in the Wave 1 survey, which was done approximately six months into the trial); 37 per cent of binge drinkers were doing this less frequently (up from 25 per cent at Wave 1).

·          A decrease in alcohol-related hospital presentations including a 37 per cent reduction in Ceduna in the first quarter of 2017 compared with first quarter of 2016 (immediately prior to the commencement of the trial).

·          A 14 per cent reduction in Ceduna in the number of apprehensions under the Public Intoxication Act compared to the previous year.

·          In the East Kimberley, decreases in the alcohol-related pick-ups by the community patrol services in Kununurra (15 per cent reduction) and Wyndham (12 per cent), and referrals to the sobering up shelter in Kununurra (8 per cent reduction).

·          Qualitative evidence of a decrease in the number of women in East Kimberley hospital maternity wards drinking through pregnancy.

·          Qualitative evidence of a decrease in alcohol-related family violence notifications in Ceduna.

·          A noticeable reduction in the number of visible or public acts of aggression and violent behaviour. Nearly 40 per cent of non-participants perceived that violence in their community had decreased.

·          People are now seeking medical treatment for conditions that were previously masked by alcohol effects.

·          48 per cent of gamblers reported gambling less (up from 32 per cent at Wave 1).

·          In Ceduna and surrounding local government areas (which covers a much bigger region than is covered by the card’s operation), poker machine revenue was down 12 per cent.  This is the equivalent of almost $550,000 less spent on poker machines in the 12 month trial.

·          The card has had “a positive impact in lowering illegal drug use” across the two sites.

·          Of those who reported drug use before the trial started, 48 per cent reported using illegal drugs less often (up from 24 per cent at Wave 1).

·          40 per cent of participants who had caring responsibility reported that they had been better able to care for their children (up from 31 per cent at Wave 1).

·          45 per cent of participants have been better able to save more money (up from 31 per cent at Wave 1).

·          Feedback that there has been a decrease in requests for emergency food relief and financial assistance in Ceduna.

·          Merchant reports of increased purchases of baby items, food, clothing, shoes, toys and other goods for children.

·          Considerable observable evidence being cited by many community leaders and stakeholders of a reduction in crime, violence and harmful behaviours over the duration of the trials.

 

Expanding the Cashless Debit Card to the Goldfields and surrounding regions will build on these positive findings, and offer an opportunity to continue to test the card’s effectiveness in a different setting and on a larger scale.

 

General safeguards

 

The Bill retains existing legislated limitations on trial parameters in relation to the number of sites, participant numbers and duration of the Cashless Debit Card program.  Additionally, the Bill removes the ability for trial areas to be determined under legislative instrument and instead provides for them under the primary legislation.

 

The Minister may, by legislative instrument, exclude parts of East Kimberley and the Included Communities, Ceduna and the Surrounding Region and Goldfields from the trial area. This provides the Minister with flexibility to remove localities. This reflects that discussions with communities in the Goldfields area are still ongoing and that requirements for communities who are already on the cashless debit card may change over time.

 

A number of general safeguards that help to protect human rights have been incorporated into the operation of the Cashless Debit Card. First, the roll out of the Cashless Debit Card in existing locations was subject to an extensive community consultation process. Details of this process in Ceduna and the East Kimberley are provided in the Explanatory Statements accompanying each Trial Area Determination. [vi] Similar consultation has been conducted for the Goldfields and surrounding regions and will  be detailed in the relevant instrument.

 

Secondly, the initial 12 month trial of the Cashless Debit Card in Ceduna and the East Kimberley has been subject to an independent, comprehensive evaluation considering the impacts of limiting the amount of welfare funds that may contribute to community level harm. The extension of current arrangements, and expansion to a new site will also be monitored and continue to build on the evidence base established through the formal evaluation.

 

The right to social security

 

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises ‘ the right of everyone to social security, including social insurance’.  The United Nations Committee of Economic, Social and Cultural Rights (the UN Committee) has stated that implementing this right requires a country, within its maximum available resources, to provide ‘ a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic form of education ’. 

 

The Cashless Debit Card, which restricts what participants can spend their social security payments on, does not detract from the eligibility of a person to receive welfare, nor reduce the amount of a person’s social security entitlement.  Rather, these arrangements place a limitation on how payments can be spent and provides a mechanism to ensure that certain recipients of social security entitlements are restricted from spending money on alcohol, gambling and illegal drugs.

 

Under the Cashless Debit Card, a portion of social security payments received by a participant is placed into a restricted bank account. Funds held in this bank account cannot be withdrawn as cash, or spent at businesses which sell alcohol and gambling products. This limitation is necessary to ensure that these products cannot be purchased with the restrictable portion of a participant’s social security payment. Without the diversion of social security payments into a restricted bank account, welfare quarantining would not be possible and the objectives of the Cashless Debit Card, outlined above, could not be met.

 

To the extent possible, the restricted bank account functions like a standard, mainstream bank account. This serves to minimise restrictions on the way social security is received. The Cashless Debit Card itself is a standard Visa debit card that can be used at the majority of merchants that accept EFTPOS. The account allows a range of flexible payment options including online transfers, BPAY, some online shopping and recurring deductions. As well as accessing these services online, a mobile application has been developed for use on smartphones. To further support participants, there are Local Partners in the current sites who assist with things such as a replacement cards and account balance checking. There are also two hotline services operated by the card provider and the Department of Social Services. Given the objectives of the Cashless Debit Card and the prevalence of social harm in the three trial areas, any limitation on the right to social security is reasonable and proportionate.

 

The right to a private life

 

Article 17 of the International Covenant on Civil and Political Rights sets out the right to a private life. It prohibits arbitrary or unlawful interferences with an individual’s privacy, family, correspondence or home.

 

The Cashless Debit Card program seeks to achieve the legitimate objective of reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behaviour, and reducing the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments.

 

By reducing a person’s choice in how and where they access and spend their social security payments, the Cashless Debit Card program limits the right to a private life. The program is targeted to communities where high levels of welfare dependence exist alongside high levels of social harm. This limitation on the right to a private life is directly related to the objectives of reducing such harm. This is because the limitations put in place restrict transactions at businesses selling goods that contribute to such harm.

 

In designing the Cashless Debit Card, the Government worked closely with communities to reduce any stigma associated with use of the card. The card looks and operates like a normal bank card. Additionally, the card applies to participants across the communities, in order to impact on the availability of discretionary cash. It does not apply punitively to individuals experiencing harmful addictions, financial instability or other forms of hardship. Furthermore, the Wave 1 Interim Evaluation Report identified that only six per cent of participants surveyed raised stigma or shame with the card as an issue.

 

There is a clear, rational connection between the program’s objectives, detailed above, and the restrictions on the right to a private life. The trial could not prevent participants from purchasing these products if the program did not restrict how, and at what businesses, participants spend their welfare payment. In turn, these restrictions on the purchase of alcohol, illegal drugs and gambling products are designed to reduce violence and harm, and to encourage socially responsible behaviour. Given the objectives of the program and the prevalence of social harm in targeted communities, any limitation on the right to a private life is reasonable and proportionate.

 

The right to privacy

 

The Cashless Debit Card also engages the right to privacy. Section 124PN allows the disclosure of information to the Secretary by a financial institution. Section 124PN does not provide a blanket exemption from privacy laws. It merely allows the sharing of information necessary for the operation and evaluation of the program.  As a result, there are still safeguards in place to protect individual privacy.  Both Government and the card provider are required to act in accordance with privacy laws, more generally, and the Australian Privacy Principles (APPs).  The APPs set out strict rules around how personal information can be used.  For example, they prohibit the disclosure of personal information for direct marketing. Notably, under the Cashless Debit Card Government cannot see what people are purchasing.

 

The section seeks to enable the program to achieve a legitimate objective and are necessary for the Cashless Debit Card to operate effectively and to be evaluated.  In order to establish bank accounts for participants, the Department of Human Services (DHS) must transfer customer information to the card provider. The card provider in turn provides new account details back to DHS.  While the Cashless Debit Card is operating, the card provider must also transfer information about participants to the Department of Social Services (DSS). DSS uses this information to run and evaluate the program. Without this sharing of information, new accounts cannot be set up and so the Cashless Debit Card could not proceed.

 

Any limitation on a person’s right to privacy is reasonable and proportionate given the extensive social harm discussed above under the section titled ‘Objectives’. There are also effective community safeguards over the extent of the restrictions imposed.  

 

The rights of equality and non-discrimination

 

The rights of equality and non-discrimination are provided for in a number of the seven core international human rights treaties to which Australia is a party, most relevantly the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Racial Discrimination (the CERD).  In particular, article 5 of the CERD requires parties ‘t o prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as  to race, colour or national or ethnic origin, to equality before the law ’, notably in the enjoyment of ‘ the right to…social security and social services ’ (article 5(e)(iv)). 

 

Discrimination is impermissible differential treatment among persons or groups that results in a person or a group being treated less favourably than others, based on a prohibited ground for discrimination, such as race.  However, the UN Human Rights Committee has recognised that ‘ not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective, and if the aim is to achieve a purpose which is legitimate under the Covenant ’. 

 

The rights to equality and non-discrimination are not directly limited by the Cashless Debit Card. The program is not applied on the basis of race or cultural factors. Locations for the program have been chosen based on objective criteria. This includes high levels of welfare dependence and community harm, as well as the outcomes of comprehensive community consultation.

 

Anyone residing in locations where the Cashless Debit Card operates, and receiving a payment specified by instrument, will become a participant. The program is therefore not targeted at people of a particular race, but to welfare recipients who meet particular criteria. People will also be able to volunteer for the program.

 

While the Cashless Debit Card does not directly limit the rights to equality and non-discrimination, it may indirectly limit these rights.  For example, before the Cashless Debit Card commenced in the East Kimberley, Aboriginal and Torres Strait Islander people made up around 83 per cent of the total income support payment population that would become trial participants. Women comprised around 57 per cent of projected participants and Disability Support Pension recipients were likely to comprise around 26 per cent of participants.

 

However, locations have been chosen based on objective criteria, outlined above.  These criteria clearly relate to the legitimate objectives of the program. Given these objectives and the scale of unacceptable harm in Ceduna and the East Kimberley, as discussed above in the section titled ‘Objectives’, any limitation on the right to equality and non-discrimination is reasonable and proportionate. 

 

Noting the indirect impact the Cashless Debit Card currently has on Aboriginal and Torres Strait Islander people, in identifying the Goldfields and surrounding regions as a third location, consideration was given to including a community with lower Aboriginal and Torres Strait Islander population It is estimated that 44 per cent of participants in Goldfields and surrounding regions will be Aboriginal and Torres Strait Islander people. Where communities do have high Aboriginal and Torres Strait Islander populations, the support of key Aboriginal and Torres Strait Islander leaders will be critical to ensure the Government upholds its commitment to ‘work with’ First Australians.

 

The right to self-determination

 

Article 1 of the ICESCR states that ‘ all peoples have the right of self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. 

 

The extension and expansion of the Cashless Debit Card will not impact on or interfere with a person’s right to pursue freely their economic, social or cultural development. 

 

Under the Cashless Debit Card, people are able to spend their restricted funds on any goods or services except alcohol, gambling and illegal drugs as a result of having less access to discretionary cash.  This limitation ensures that vulnerable people are protected from abuse of these substances, and any associated harm and violence. Comprehensive community consultation was conducted in all locations to gauge community interest and support in the arrangements, including from local community leaders. 

 

The right to an adequate standard of living

 

Article 11(1) of the ICESCR states that everyone has the right to ‘ an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’ and that ‘appropriate steps’ be taken to ‘ ensure realisation of this right’.  Further to this, article 11(2) of the ICESCR states that ‘ measures, including specific programmes,’ should be taken in ‘ recognising the fundamental right of everyone to be free from hunger’. 

 

The Cashless Debit Card does not limit the right to an adequate standard of living for affected people. Under the Cashless Debit Card people are able to use restricted funds to access any goods and services with the exception of alcohol and gambling products, with the aim of reducing abuse of these goods and services and associated harm and violence. It would not restrict access to the essential goods and services required to maintain an adequate standard of living. Access to some discretionary cash is available to ensure that people can still participate in cash economies to purchase items which contribute to an adequate standard of living.

 

The rights of children

 

By ensuring that a portion of welfare payments is available to cover essential goods and services, welfare quarantining can improve living conditions for the children of welfare recipients. Such measures thereby advance the right of children to the highest attainable standard of health and the right of children to adequate standards of living (articles 24, 26 and 27 of the Convention on the Rights of the Child, respectively).

 

Conclusion

 

The amendments are compatible with human rights. The continuation of and expansion of the Cashless Debit Card will advance the protection of human rights by ensuring that income support payments are spent in the best interests of welfare payment recipients and their dependents.

 

To the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate to achieving the objectives of the welfare quarantining measures. The Cashless Debit Card will assist to reduce immediate hardship and deprivation, reduce violence and harm, encourage socially responsible behaviour, and reduce the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments. 

 

 

 

 

 




[i] Submission to the Senate Standing Committee on Community Affairs inquiry to the Social Services Legislation Amendment (Debit Card Trial) Bill 2015 , District Council of Ceduna, Annexure 1, p. 3.

[ii] Submission to the Senate Standing Committee on Community Affairs inquiry to the Social Services Legislation Amendment (Debit Card Trial) Bill 2015 , District Council of Ceduna, Annexure 3, p. 2.

[iii] Submission 10 to the Senate Standing Committee on Community Affairs inquiry to the Social Services Legislation Amendment (Debit Card Trial) Bill 2015 , Wunan Foundation, p. 1.

[iv] Submission 10 to the Senate Standing Committee on Community Affairs inquiry to the Social Services Legislation Amendment (Debit Card Trial) Bill 2015 , Wunan Foundation.

[vi] Social Security (Administration) (Trial Area — East Kimberley) Determination 2016, Explanatory Statement; Social Security (Administration) (Trial Area — Ceduna and Surrounding Region) Determination 2015, Explanatory Statement.