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Social Security (Administration) Amendment (Cashless Welfare) Bill 2019

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                                                                     2019

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (CASHLESS WELFARE) BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for Families and Social Services, Senator the Hon Anne Ruston)



SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (CASHLESS WELFARE) BILL 2019

 

 

OUTLINE

 

The Bill allows the Secretary of the Department of Social Services (DSS) to be the decision maker for all Cashless Debit Card (CDC) exit applications and broadens the criteria for the exit provisions to allow the Secretary to take into account a person’s ability to manage their affairs generally, including their financial affairs. Further, the Bill clarifies that exit applications need to be made in a form that is approved by the Secretary and expands the wellbeing exemption provisions so they apply more broadly across all regions.

 

 

FINANCIAL IMPACT STATEMENT

 

This Bill has nil financial impact.

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statements of compatibility with human rights appears at the end of this explanatory memorandum.



 



SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (CASHLESS WELFARE) BILL 2019

 

 

NOTES ON CLAUSES

 

Abbreviations and Acronyms used in this explanatory memorandum

 

 

  • Social Security Administration Act means the Social Security (Administration) Act 1999 ;

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the Social Security (Administration) Amendment (Cashless Welfare) Act 2019 .

 

Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedules to, the new Act.

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.

 



Schedule 1 - Amendments

 

 

Summary

 

This Schedule allows the Secretary of DSS to be the decision maker for all CDC exit applications and broadens the criteria for the exit provisions to allow the Secretary to take into account a person’s ability to manage their affairs generally, including their financial affairs.  Further, the Schedule clarifies that exit applications need to be made in a form that is approved by the Secretary and expands the wellbeing exemption provisions so they apply more broadly across all regions.

 

Background

 

Under section 124PHA of the Social Security Administration Act, as inserted by the Social Security (Administration) Amendment (Income Management and Cashless Welfare) Act 2019 (the Income Management and Cashless Welfare Act), a CDC participant may apply on or after 1 July 2019 to exit the CDC trial if they can demonstrate reasonable and responsible management of their financial affairs.  Applications may be made to a community body if the CDC participant resides in an area where a body is established; or to the Secretary of DSS where they reside in an area with no community body.  This section requires that if a community body is authorised for a CDC trial area, the community body must assume responsibility for decisions relating to applications to exit the CDC program and cannot defer their power to make a decision to the Secretary.

 

Following passage of the Income Management and Cashless Welfare Act, feedback from communities indicated the majority of community body representatives strongly indicated a lack of support of the exit process and particularly the role of community bodies as the decision maker.  Community stakeholders also indicated that any process to exit the program should be based on a participant meeting social norms, as well as the current criteria relating to financial management.  Without the critical support of the community bodies and agreement to make decisions on these applications, it is not possible to implement the exit process as provided for under the current provisions.

 

This Bill will amend the exit criteria under current paragraph 124PHA(2)(a) to allow broader consideration of a person’s ‘affairs’, including their financial affairs.  This allows full consideration of all the factors listed in paragraph 124PHA(2)(a), such as the impacts on children and family safety.  This change to criteria is in line with feedback from consultation with community stakeholders and is consistent with the broader social objectives of the CDC program.

 

This Bill will amend the exit process to reflect the feedback from consultation and to require applications be made in a form approved by the Secretary.  The amendments also enable the Secretary to make a determination in relation to applications, which will be a reviewable decision.

 

These amendments will also move the exit and wellbeing exemption arrangements under one subdivision in the Social Security Administration Act.  This removes differences in decision-making processes, increasing consistency and fairness for participants across trial areas regardless of whether a person is a participant in a trial area where there is a community body in place.

 

CDC participants can also be exited from the trial if they were incorrectly placed on the trial or if they no longer meet the participant criteria. This is different to the wellbeing exemption process, where a CDC participant could be exempted from the trial if being on the trial could pose a serious risk to their mental, physical or emotional wellbeing.

 

The amendments made by this Schedule commence on the day after this Act receives Royal Assent.

 

Explanation of the changes

 

 

Items 1, 3, 5 and 7 repeal paragraphs 124PG(1)(ha) and (i), 124PGA(1)(ha) and (i), 124PGB(1)(ha) and (i) and 124PGC(1)(ga) and (h) of the Social Security Administration Act and substitutes them with two new requirements for the purposes of whether a person is a trial participant.  These requirements are that the person is not covered by a determination under subsections 124PHA(1) and 124PHB(3).

 

Items 2, 4, 6 and 8 repeal subsections 124PG(4) to (6), 124PGA(4) to (6), 124PGB(4) to (6) and 124PGC(4) to (6) of the Social Security Administration Act.  These provisions provided for the wellbeing exemption arrangements in each CDC trial site.  Repealing these provisions will mean that the wellbeing exemption provisions will no longer apply specifically in each trial site.  Instead, new section 124PHA inserts new wellbeing exemption arrangements across all CDC regions from commencement of this Bill.

 

Item 9 repeals Subdivision C of Division 2 of Part 3D and substitutes it with new Subdivision C—When persons not subject to cashless welfare arrangements.

 

New section 124PHA provides the requirements for assessing whether a person’s mental, physical or emotional wellbeing is at serious risk.  From commencement of this Bill, this amendment provides for the wellbeing exemptions to apply across all CDC sites.

 

Subsection 124PHA(1) provides that the Secretary must determine that a person is not a trial participant if the Secretary is satisfied that being a trial participant would pose a serious risk to the person’s mental, physical or emotional wellbeing.  The intent of this provision is to protect those persons who, based on an assessment of their circumstances, may seriously be at risk of adverse impacts on their mental, physical or emotional wellbeing, as a result of being subject to the CDC trial.

 

 

 

Subsection 124PHA(2) provides that the Secretary is not required to inquire into whether a person being a trial participant would pose a serious risk to the person’s mental, physical or emotional wellbeing.  The Secretary will consider making this determination once he or she is aware of facts, which indicate that being a trial participant may seriously risk a person’s mental, physical or emotional wellbeing.  Where the Secretary is satisfied that being a trial participant would seriously risk that person's mental, physical or emotional wellbeing and makes a determination to this effect, the person will not be subject to the CDC trial. 

 

If the serious risk to the person is only brought to the Secretary’s attention after they have become a trial participant, and provided the Secretary is satisfied that being subject to the trial poses a serious risk to the person’s mental, physical or emotional wellbeing, the Secretary must determine that the person should no longer be a trial participant. 

 

Subsection 124PHA(3) provides that the Secretary must not revoke a determination made under subsection 124PHA(1).  This subsection clarifies that a decision made under subsection (1) cannot be revoked and that a person is permanently exempt from the CDC trial if a determination has been made under subsection 124PHA(1).  Subsection 124PHA(3) applies to prior determinations to which sub-item 10(1) applies.

 

Subsection 124PHA(4) provides that a determination under subsection 124PHA(1) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 . This subsection is declaratory only, because such a determination is not legislative in character, in that it affects only the person.

 

New section 124PHB provides for how a person may exit the trial of cashless welfare arrangements.

 

Subsection 124PHB(1) provides that a person may apply to the Secretary to exit the trial of cashless welfare arrangements.

 

Subsection 124PHB(2) provides that the application must be in a form approved by the Secretary.

 

Subsection 124PHB(3) provides that the Secretary may determine that the person is not a trial participant if the Secretary is satisfied that:

 

(a)               the person can demonstrate reasonable and responsible management of the person’s affairs (including financial affairs), taking into account all of the following:

 

(i)     the interest of any children for whom the person is responsible;

(ii)   whether the person was convicted of an offence against a law of the Commonwealth, a State or a Territory, or was serving a sentence of imprisonment for such an offence, at any time in the last 12 months;

(iii) risks of homelessness;

(iv) the health and safety of the person and the community;

(v)   the responsibilities and circumstances of the person;

(vi) the person’s engagement in the community, including the person’s employment or efforts to obtain work; and

 

(b)               the person satisfies any requirements determined in an instrument under subsection 124PHB(6).

 

As well as demonstrating that a CDC participant is able to financially provide for themselves and their dependents, subparagraph 124PHB(3)(a)(i) requires the Secretary to take account of whether the participant has ensured that the interests of children in their care are met, for example opportunities to participate in age-appropriate activities such as school attendance.

 

Other considerations for the Secretary include whether a person is subject to an order of the court, such as a community or detention order but has not been convicted of an offence.

 

Section 33(3) of the Acts Interpretation Act 1901 applies to a decision made under subsection 124PHB(3), so that the Secretary may revoke a determination if he or she is no longer satisfied that the person should not be subject to the CDC trial.

 

Subsection 124PHB(4) requires that the Secretary must give the person written notice of the Secretary’s decision on the application.  If the Secretary refuses to make a determination, the notice must set out the reasons for the refusal and that the decision is subject to internal or external review.

 

Subsection 124PHB(5) provides that a determination under subsection 124PHB(3) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .  This subsection is declaratory only, because such a determination is not legislative in character, in that it affects only the person.

 

Subsection 124PHB(6) provides that the Minister may, by legislative instrument, determine requirements for the purposes of paragraph 124HB(3)(b).

 

Subsection 124PHB(7) requires that before the Minister makes a determination under subsection 124PHB(6), the Minister must:

 

(a)   consult with local communities and trial participants; and

 

(b)   have regard to any feedback received as a result of those consultations.

 

Subsection 124PHB(8) provides for a reconsideration of the Secretary’s determination under subsection 124PHB(3).  A health or community worker (as defined in subsection 124PD(1) of the Social Security Administration Act) may request the Secretary to reconsider a determination made under subsection 124PHB(3) if the worker considers that it is necessary for the person to be a trial participant for medical or safety reasons.

 

Subsection 124PHB(9) provides that the Secretary must revoke the subsection 124PHB(3) determination if the worker makes such a request and, having taken into account the information provided by the worker, the Secretary is no longer satisfied of the matters in paragraphs 124PHB(3)(a) and (b).  However, if the Secretary continues to be satisfied of the matters in paragraphs 124PHB(3)(a) and (b), the person will continue not to be subject to the CDC trial.

 

Subsection 124PHB(10) provides that subsection 124PHB(9) does not prevent the person from making another application under subsection 124PHB(1).

 

Item 10 provides the transitional arrangements for this measure.

 

Subitem 10(1) provides that if, immediately before the commencement of this item, a determination under subsection 124PG(4), 124PGA(4), 124PGB(4) or 124PGC(4) of the Social Security Administration Act was in force in relation to a person, then, at the commencement of this item, the Secretary is taken to have made a determination under subsection 124PHA(1) of that Act in relation to the person.  This ensures that wellbeing determinations made in relation to a trial participant before commencement are not disturbed and will continue to apply from commencement. 

 

Subitem 10(2) provides that if, immediately before the commencement of this item, section 124PHA of the Social Security Administration Act applied to a person, then, at the commencement of this item, the Secretary is taken to have made a determination under subsection 124PHB(3) of that Act in relation to the person.  This ensures that exit determinations made in relation to a trial participant before commencement are not disturbed and will continue to apply from commencement of this Bill.

 

Subitem 10(3) provides that if, immediately before the commencement of this item, an application under subparagraph 124PHA(1)(a)(ii) or (b)(ii) of the Social Security Administration Act was pending, then:

 

(a)   at the commencement of this item, the application is taken to have been made under section 124PHB of that Act; and

 

(b)               the Secretary must decide the application in accordance with section 124PHB of that Act.

 

As a result of subitem 10(3), where exit applications have been received prior to the amendments commencing, but no decision has been made, these applications would be assessed under exit provisions as amended by this Bill.  

 

The change to criteria is in line with feedback from consultation with community stakeholders. It also ensures consistency of the new exit pathway with the broader social objectives of the CDC program; as listed in section 124PC of the Social Security Administration Act, the trial of cashless welfare arrangements seeks to determine whether such arrangements lead to decreases in violence or harm in trial areas and encourage socially responsible behaviour.

 

Application of the broader criteria under this approach addresses at the earliest opportunity the unintended consequence posed by the current criteria, namely participants being exited who would have been required to stay on the program had consideration been given to factors beyond the person’s financial affairs.  The emphasis on financial management in the current criteria may lead to anomalous situations whereby a person could meet the criteria based on financial grounds despite being in contact with authorities for non-financial reasons (such as child protection or family violence issues).  It would also restrict the opportunity for a person to be able to demonstrate they are acting in the best interest of children, families and the community such as positive school attendance outcomes.  Given the CDC seeks to improve social outcomes and reduce anti-social and harmful behaviour, it would be more beneficial for communities if the criteria allowed such behaviours to be taken into account.

 

Subitem 10(3) also ensures consistency in the decision-making process, as all applications would be assessed by the Secretary from commencement onwards.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (CASHLESS WELFARE) BILL 2019

 

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

The Bill allows the Secretary of the Department of Social Services (DSS) to be the decision maker for all Cashless Debit Card (CDC) exit applications and broadens the criteria for the exit provisions to allow the Secretary to take into account a person’s ability to manage their affairs generally, including their financial affairs.  Further, the Bill clarifies that exit applications need to be made in a form that is approved by the Secretary and expands the wellbeing exemption provisions so they apply more broadly across all regions.

Human rights implications

The Parliamentary Joint Committee on Human Rights reviewed the Social Security (Administration) Amendment (Income Management and Cashless Welfare) Bill 2019, the Social Services Legislation Amendment (Cashless Debit Card Trial Expansion) Bill 2018, and previously the Social Services Legislation Amendment (Cashless Debit Card) Bill 2017 and the Social Security Legislation Amendment (Debit Card Trial) Bill 2015.  These reviews note the Committee’s views that the CDC trial engages and limits three human rights: the right to social security, the right to privacy and the right to equality and non-discrimination.

 

This Bill proposes administrative amendments to the exit application process and streamlines legislative provisions.  It does not change the objectives of the CDC trial and does not change or exceed the three human rights that the trial currently engages and limits:  the right to social security, the right to privacy 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 CDC trial, 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 trial areas; and

 

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

 

(d) encourage socially responsible behaviour.

 

In other words, the CDC trial 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 remain on welfare and out of the workforce for extended periods of time.

 

The consumption of alcohol and drugs and partaking in gambling at harmful levels can negatively impact on a person’s ability to work, and can lead to long-term welfare dependency.  The CDC trial’s primary purpose is to reduce harm at a community level from the use of harmful products such as alcohol, drugs and gambling.  A flow-on impact of providing this tool to help address these issues is that participants are able to stabilise their lives, leading to an increased ability to participate in the workforce.

 

The CDC trial sites have been selected where there has been evidence of community level harms that the program objectives aim to address.  They have also been selected due to strong levels of community support in each of the trial sites.  Discussions to establish continued levels of support are ongoing and support from key stakeholders in each site remains today due to the positive impact the card has had on the community as a whole, not just the participants themselves.

 

Regarding the CDC trial, the final independent evaluation of the CDC trial by ORIMA Research was released on 1 September 2017, and included results from the first two trial areas, Ceduna, South Australia, and the East Kimberley, Western Australia.

 

The evaluation found that the CDC trial 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’.

 

A second independent impact evaluation of the CDC trial is currently being undertaken to further assess the ongoing effectiveness of the trial in the first three sites of Ceduna, East Kimberley and the Goldfields.  The Future of Employment and Skills Research Centre at the University of Adelaide has been commissioned to undertake this second impact evaluation, which is designed to extend and enhance the evidence base previously generated during the first independent impact evaluation of the first two sites.

 

General safeguards

 

A number of general safeguards that help to protect human rights have been incorporated into the operation of the CDC trial. First, the rollout of the CDC trial in existing and proposed locations was subject to an extensive community consultation process.  Discussions in relation to the continued operation of the program with key stakeholders in each location are ongoing.

 

Secondly, following the first initial independent, comprehensive evaluation of the first two sites, the Government is conducting a second evaluation of the CDC trial across the first three trial sites, to assess the ongoing effectiveness of the program.  The second evaluation will build on the evidence base established through a continuous data monitoring activity, ongoing engagement with the communities and baseline data collected in the Goldfields site.  When completed, this second evaluation will be subject to an independent review process in accordance with section 124PS of the Social Security Administration Act .  An impact evaluation of the Bundaberg and Hervey CDC trial will also commence in 2019-20, building on baseline data collection currently underway.

 

The right to social security

 

These amendments do not detract from the eligibility of a person to receive welfare, nor reduce the amount of a person’s social security entitlement.

 

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 ’. 

 

Across all CDC sites, the right to social security is limited only in the participant’s ability to use a proportion of their payment to purchase harmful goods, in an area where there are demonstrated high levels of community harm.  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.

 

A portion of social security payments received by a CDC participant is quarantined, with restricted goods not able to be purchased using this portion.  These funds are held in a welfare restricted bank account, and cannot be withdrawn as cash, or used to purchase alcohol, gambling products or ‘cash-like’ products that could be used to obtain alcoholic beverages or gambling.  Businesses which sell restricted items or products may service participants, where they have systems in place that do not allow the sale of these products to holders of a CDC.  These limitations are necessary to ensure that restricted 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 schemes, outlined above, could not be met.

 

The restricted bank account functions like a standard, mainstream bank account.  This serves to minimise restrictions on the way social security is received.  The CDC itself is a standard Visa debit card that can be used at the majority of merchants that accept EFTPOS.  The account allows for a range of flexible payment options including online transfers, BPAY, direct debits, online shopping and recurring deductions.  As well as accessing these services online, a mobile application has been developed for use on smartphones.  There are also two hotline services operated by the card provider and DSS to provide technical and practical support for participants.

 

Given the objectives of the CDC trial, and the prevalence of social harm in the areas these schemes operate, any limitation on the right to social security is reasonable and proportionate.

 

The right to a private life

 

The impact of the trial on the right to a private life and privacy has previously been raised.

 

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 CDC trial 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 welfare schemes limit the right to a private life.  The CDC trial 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.

 

The CDC trial 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 CDC trial, Government cannot see what items or products people are purchasing.

 

The section seeks to enable the program to achieve a legitimate objective and are necessary for the CDC trial to operate effectively and to be evaluated.  In order to establish bank accounts for participants, Services Australia (formerly the Department of Human Services) must transfer customer information to the card provider.  The card provider in turn provides new account details back to Services Australia.  While the CDC trial is operating, the card provider must also transfer information about participants to 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 CDC trail 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 CDC trial.  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 CDC trial operates, and receiving a payment specified by instrument or legislation, will become a participant. The program is therefore not targeted at people of a particular race, but to welfare recipients who meet particular criteria.

 

The wellbeing exemption provisions apply to any CDC participant, if being on the trial poses a serious risk to their mental, physical or emotional wellbeing.  Further, the CDC exit provisions under new section 124PHB is open to all CDC trial participants to apply for an exit from the trial if they can demonstrate reasonable and responsible management of their affairs.

 

While the CDC trial does not directly limit the rights to equality and non-discrimination, it may indirectly limit these rights.  For example, before the CDC trial commenced in the East Kimberley, Western Australia, 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, South Australia, 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 CDC trial currently has on Aboriginal and Torres Strait Islander people, consideration of the most recent sites of the Goldfields and the Bundaberg and Hervey Bay area also looked at these being communities with significantly lower Aboriginal and Torres Strait Islander population.  With the addition of the Goldfields areas, Western Australia, and the Bundaberg and Hervey Bay area, Queensland, the proportion of Indigenous participants across the four sites is around 38 per cent.

 

Where communities do have high Aboriginal and Torres Strait Islander populations, the support of key Aboriginal and Torres Strait Islander leaders will continue to 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 amendments will not impact on or interfere with a person’s right to pursue freely their economic, social or cultural development. 

 

CDC participants can continue 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.  The limitation on these products and services ensures that vulnerable people are protected from abuse of these substances, and any associated harm and violence.

 

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 CDC trial does not limit the right to an adequate standard of living for affected people.  CDC participants are able to use restricted funds to access any goods and services with the exception of alcohol and gambling products, or ‘cash-like’ products that could be used to obtain alcoholic beverages or gambling, with the aim of reducing abuse of these goods and services and associated harm and violence.  The trial does 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 that 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.  Broadening the scope of the CDC exit process will ensure that the rights of Children is duly considered, beyond the limited scope of a CDC participant’s management of their financial affairs only.  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 do not change the existing compatibility of the CDC trial with human rights. The CDC trial will continue to 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 CDC trial and income management aim to reduce immediate hardship and deprivation, reduce violence and harm, encourage socially responsible behaviour, and reduce the likelihood that welfare payment recipients will remain on welfare and out of the workforce for extended periods of time.

 

 

 

 

 

 

 

 

 

 

 

 

[Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston]