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Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019

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2019

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

SOCIAL SECURITY (ADMINISTRATION) AMENDMENT

(INCOME MANAGEMENT TO CASHLESS DEBIT CARD TRANSITION) 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

(INCOME MANAGEMENT TO CASHLESS DEBIT CARD TRANSITION) BILL 2019

 

 

OUTLINE

 

This Bill:

·          extends the end date for existing CDC trial areas from 30 June 2020 to 30 June 2021 and establishes an end date for the CDC trial in the Cape York area of 31 December 2021;

·          removes the cap on the number of CDC trial participants;

·          removes the exclusion to allow people in the Bundaberg and Hervey Bay trial area to be able to voluntarily participate in the CDC trial;

·          establishes the Northern Territory (NT) and Cape York area as CDC trial areas and transitions IM participants in these sites onto the CDC trial in 2020;

·          enables the Secretary to advise a community body when a person has exited the CDC trial; and

·          improves the workability of the evaluation process.

 

Financial impact statement

 

$17.8 million for support services to assist the transition in the NT and Cape York area.

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

 

 

 



SOCIA SECURITY (ADMINISTRATION) AMENDMENT

(INCOME MANAGEMENT TO CASHLESS DEBIT CARD TRANSITION) BILL 2019

 

NOTES ON CLAUSES

 

Abbreviations and Acronyms used in this explanatory memorandum

 

  • 1991 Act means the Social Security Act 1991 ;

 

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

 

  • CDC trial means the Cashless welfare arrangements established by Part 3D of the Social Security Administration Act;

 

  • CDC account means a welfare restricted bank account within the meaning of section 124PP of the Social Security Administration Act;

 

  • community body means a body authorised in an instrument made under section 124PD of the Social Security Administration Act;

 

  • FRC means the Family Responsibilities Commission, which is a statutory body within the meaning of the term ‘Queensland Commission’ as defined in section 123TC of the Social Security Administration Act;

 

  • IM means the Income Management regime established by Part 3B of the Social Security Administration Act;

 

  • IM account means an income management account kept in accordance with section 123WA of the Social Security Administration Act;

 

  • NT means Northern Territory.

 

Note: To assist the reader, this Explanatory Memorandum italicises the first mention of an Act of Parliament, as well as various terms defined in the social security law not mentioned above.

 

Clause 1 sets out how the new Act is to be cited - that is, as the Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) 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:

·          extends the end date for existing CDC trial areas from 30 June 2020 to 30 June 2021 and establishes an end date for the CDC trial in the Cape York area of 31 December 2021;

·          removes the cap on the number of CDC trial participants;

·          removes the exclusion to allow people in the Bundaberg and Hervey Bay trial area to be able to voluntarily participate in the CDC trial;

·          establishes the NT and Cape York area as CDC trial areas and transitions IM participants in these areas onto the CDC trial in 2020;

·          enables the Secretary to advise a community body when a person has exited the CDC trial; and

·          improves the workability of the evaluation process.

 

Background

 

Overview

 

In the 2019-20 Federal Budget, the Australian Government announced that the CDC trial will be extended and that IM participants in the NT and Cape York area in   Queensland will transition to the CDC trial in 2020.  If enacted, this Schedule will implement this decision by establishing the Cape York area and the NT as CDC trial areas and providing transitional arrangements for IM participants residing in these areas.  CDC trial participants in the Cape York area and the NT will be subject to different approaches due to the number of participants in each region and the role of the FRC in managing IM participants in the Cape York area.

 

Extending the end date for the CDC trial

 

Section 124PF of the Social Security Administration Act currently provides that the trial of CDC in the trial areas will end on 30 June 2020.  This Bill will extend the end date to 30 June 2021 in most trial areas so that communities are able to build on the positive outcomes that the CDC trial is delivering and to develop a rigorous evidence base to inform policy decisions through evaluation.  For the Cape York area, the CDC trial will end on 31 December 2021.

 

Removing the cap on CDC trial participants

 

Section 124PF of the Social Security Administration Act establishes that a maximum of 15,000 people may be subject to the CDC trial under Part 3D of the Social Security Administration Act.  By removing this cap, IM participants in the NT and Cape York area will be able to participate in the CDC trial.  This will ensure that any person identified (by an officer or employee of the FRC in the Cape York Area, or an alternative referrer, such as a child protection worker in the NT) as someone who should participate in IM or the CDC trial is not prevented from accessing the CDC trial merely because of numerical limits.

 

Transitioning participants in the CY area

 

Approximately 150 IM participants within the Cape York area will transition to the CDC trial on a single day, being the later of 8 April 2020 or on the day after the end of the period of three months beginning on the day the Act receives the Royal Assent (the  start date ).  

 

This schedule enables notices issued by the FRC which relate to IM participants to remain in force to be taken to be notices for the purposes of the CDC trial.  This approach acknowledges the existing legal framework and current arrangements in a way that ensures that the FRC maintains its functions and jurisdiction and avoids unnecessary administrative burdens.

 

The CDC trial participant criteria for the Cape York area are the same as the criteria for IM participation.  However, the provision requiring that a person is an IM participant because they receive a veteran payment will not be transitioned to the CDC trial given there are only small numbers of IM participants in the Cape York area on a veteran payment.  There will be no changes to these IM provisions under Part 3B of the Social Security Administration Act.

 

Transitioning participants in the NT

 

In the NT, there will be a staggered rollout of the CDC trial commencing from the start date under which approximately 23,000 IM participants in the NT will transition to the CDC trial over a period of nine months.  The CDC trial participation criteria for the NT are the same as the criteria for IM.  The provision requiring that a person is an IM participant because they receive a veteran payment will also not be transitioned to the CDC trial as there are currently no IM participants in the Northern Territory on a veteran payment.  There will be no changes to these IM provisions under Part 3B.

 

From 1 January 2020, no   new participants will be transitioned onto IM under the disengaged youth and long-term welfare payment recipient measures.  This means that these people will not have to participate in IM for the short period prior to their entry into the CDC trial.



 

Sharing information with community bodies

 

The Social Security Administration Act allows for sharing of information in certain circumstances.  Among other things, the amendments made by this Schedule will enable the Secretary to advise a community body when a person ceases to be a participant in the CDC trial.  This will help community bodies to monitor the effectiveness of the CDC trial and ensure that community members are not required or encouraged to re-enter the trial where it would be contrary to their mental, physical or emotional wellbeing.

 

Improving the evaluation process

 

The Social Security Administration Act presently requires that, where the Minister causes a review of CDC trial to be conducted, the Minister must cause the review to   be evaluated.  This requirement is potentially circular and, unless resolved, might generate ongoing evaluation under section 124PS.  The proposed amendments address this issue and supports a desktop evaluation to lessen the ethical implications associated with avoidable repeat contact with vulnerable individuals.

 

 



 

Explanation of the changes

 

Part 1 - Stage 1 amendments

 

Amendments to the Social Security Administration Act

 

Items 1 and 2 add subsections 123UCB(5) and 123UCC(5) which provide that a person is not subject to the IM regime under the relevant section on or after the day the subsection commences, unless the person was subject to IM on the day before that day.  This prevents a person from being commenced on IM under these sections for a short period of time prior to the rollout of the CDC trial in their region.  The amendments will preclude the entry of new IM participants who meet the criteria for the disengaged youth or long-term welfare payment recipient measures, even if the Minister were to make a legislative instrument specifying new trial sites under subsection 123UCB(4) or 123UCC(4).

 

Part 2 - Stage 2 amendments

 

Amendments to the Social Security Administration Act

 

Item 3 adds new subsection 123UF(4) which provides for the relationship between section 123UF and Part 3D of the Social Security Administration Act as a person transitions from IM to the CDC trial.  New subsection123UF(4) provides that the Secretary may transfer an amount equal to funds held in a person’s IM account to their CDC account within 60 days of a person transitioning from IM to the CDC trial in the Cape York area.  This will ensure that, during the transition from IM to the CDC trial, a person will be able to access all of their funds through one source at any one time.

 

When a person has transitioned to the CDC trial, their IM account will be closed.  Where a person exits the CDC trial before a CDC account is credited with any amounts, the Secretary may decline to credit the CDC account and instead close the person’s IM account and pay any outstanding credit balance to them in accordance with section 123WJ.  This ensures that exiting trial participants can access their funds when they exit the CDC trial.

 

In allowing a 60-day transfer period, new subsection 123UF(4) allows sufficient time for a person to ensure that their CDC account (and associated card) is activated and deduction arrangements are transferred to their CDC account prior to closure of their IM account.

 

Item 4 adds a new Subdivision E—Relationship with Part 3D for Northern Territory trial participants .  This item also adds new section 123UP, which allows for the transfer of funds from a person’s IM account to their CDC account within 60 days of transitioning to the CDC trial in the same manner (as described in item 3 above), and with the same objectives, as provided for under new subsection 123UF(4) above.

 

New subsection 123UP(4) ensures that once a person transitions to the CDC trial, they are no longer subject to the IM regime.  If a person exits the CDC trial prior to their CDC account being credited with funds from their IM account, the Secretary may close their IM account and pay any outstanding credit balance (defined as the residual amount ) to the exiting participant in accordance with section 123WJ of the Social Security Administration Act.

 

New subsection 123UP(5) provides that a person will not be prevented from returning to the Income Management regime if they do not meet the criteria to be a CDC trial participant under new section 124PGE and their usual place of residence is outside the NT.  However, items 2 and 3 have a limiting effect on the amendments proposed by item 4 as they will prevent an exiting CDC trial participant from returning to IM where that person meets the criteria for the IM disengaged youth or long-term welfare payment recipient measures.

 

Item 5 inserts a new subparagraph (aa) into subsection 123ZN(1) of the Social Security Administration Act.  The new subparagraph will provide authority for funds to be appropriated from the Consolidated Revenue Fund for the purposes of making payments under paragraph 123UF(4)(a) or subsection 123UP(2), that is, to give effect to the transfer of funds from a person’s IM account to their CDC account.

 

Item 6 amends section 124PB which contains a simplified outline for Part 3D relating to the Trial of CDC.  This item amends the second paragraph of the outline to reflect existing arrangements with community bodies in specific trial areas and allow communities to have a say in how the CDC trial is implemented in the relevant community. The amendments explain how the restricted and unrestricted portions of certain welfare payments may be varied under Part 3D.

 

Item 7 inserts new defined terms into subsection124PD(1), for the purposes of Part 3D of the Social Security Administration Act.  All but one of these new terms have the same meaning as in Part 3B relating to IM.  The definition of the ‘Cape York area’ is defined to mean the area determined in an instrument under subsection (1A) - which is a new provision to be inserted by item 14 of this Schedule.

 

Items 8 and 9 amend the definition of restrictable payment in subsection 124PD(1). Item 8 maintains the existing definition of restrictable payment for existing trial areas by confining the current definition to sections 124PG, 124PGA, 124PGB and 124PGC (that is, in respect of the Ceduna area, the East Kimberley area, the Goldfields area and the Bundaberg and Hervey Bay area).

 

Item 9 then inserts a new subparagraph 124PD(1)(aa) to list each payment that will be a restrictable payment for CDC trial participants in the Cape York area and the NT under new sections 124PGD and 124PGE.  The new paragraph does not capture transitioning IM participants who are receiving a veteran payment.  

 

Items 10, 11 and 15 will extend the CDC trial area to the Cape York area and NT and allow areas to be excluded to facilitate the staggered rollout in the NT.

 

Item 10  amends the definition of trial area under subsection 124PD(1) to establish the Cape York area and the whole of the NT as CDC trial areas for the purposes of Part 3D of the Social Security Administration Act. The term trial area is currently subject to exclusion (or carve-out) of any part of an area as determined in a notifiable instrument made by the Minister under subsection 124PD(2).   Item 15 will allow the Minister to make a notifiable instrument under subsection 124PD(2) to exclude any part of the NT from the trial area .  Subsection 124PD(2) does not require an express reference to the Cape York area as the Minister’s power to make such an instrument will automatically expand upon the enactment of item 10.   Item 11 is required to amend the definition of trial area so that it takes account of any notifiable instrument that identifies any part of the NT as being outside the trial area.

 

The Minister’s power to make a notifiable instrument under subsection 124PD(2) is a pre-existing power being modified to support the extension of the CDC trial to the NT.

 

Item 12 amends the definition of trial participant by omitting a reference to section 124PGC and substituting it with a reference to section 124PGE.  This means that a person who meets the criteria in new sections 124PGD or 124PGE will be defined as a trial participant for the purposes of Part 3D of the Social Security Administration Act.

 

Item 13 inserts a definition of vulnerable welfare payment recipient to give it the meaning applied in Part 3B of the Social Security Administration Act.  This term is used to determine whether a person is a trial participant for the purposes of section 124PGE relating to a person whose usual residence is, becomes or was within the NT.

 

Item 14 inserts a new subsection 124PD(1A) to provide that the Minister may determine an area for the purposes of the definition of Cape York area by notifiable instrument.  This is required to establish the area as a trial area and ensure consistency with the definition of the Cape York area used by the FRC.  This new power to make a notifiable instrument is consistent with the existing power under section 124PD(2), which is to be modified to bring the NT into the CDC trial.

 

Item 16 inserts new subsection 124PD(3) clarifying that a notifiable instrument determining an area to be a trial area , made under subsection 124PD(1A) or (2), may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as   in force or existing from time to time.  This clarification is made despite subsection 14(2) of the Legislation Act 2003 .  This approach is necessary to ensure that the CDC trial operates seamlessly for people who usually reside in the Cape York area.   The process will also assist the FRC to perform its role effectively and according to Commonwealth and Queensland law.  The department will make any incorporated material freely available to the public either by publication of the material on the department’s website and by allowing public inspection of any incorporated material at its National Office.

 

Item 17 repeals paragraph 124PF(1)(b) and substitutes it with a new paragraph which provides that the end date for trial is 30 June 2021 for all trial areas other than the Cape York area, which will have a trial end date of 31 December 2021.  The extension of the CDC trial was announced in the 2019-2020 Budget and ensures the ongoing support for CDC participants.  An extended trial for the Cape York area aligns with the Commonwealth’s agreements in relation to the operation of the FRC and ensures certainty for all stakeholders involved.

 

Item 18 repeals subsection 124PF(3) to remove the cap on the number of CDC trial participants.  This amendment will ensure that all IM participants in the Cape York area and the NT are able to transition to the CDC trial.

 

Items 19, 21, 23 and 25 repeal paragraphs 124PG(1)(d), 124PGA(1)(d), 124PGB(1)(d) and 124PGC(1)(d) and substitutes in new paragraphs (d) in each provision.  Under current arrangements, a person can only be a trial participant where the person does not have a Part 3B payment nominee (within the meaning of Part 3B of the Social Security Administration Act).  New paragraphs 124PG(1)(d), 124PGA(1)(d), 124PGB(1)(d) and 124PGC(1)(d) will only exclude persons from being a trial participant where they have a nominee who is   not a CDC trial participant or is not subject to IM under Part 3B.  

 

Items 20, 22, 24 and 26 repeal paragraphs 124PG(1)(f), 124PGA(1)(f), 124PGB(1)(f) and 124PGC(1)(e).  This replicates the current arrangements for IM participants who receive weekly payments to provide consistency across all CDC trial areas and ensures that a person is not excluded from being a CDC trial participant on the basis of receiving weekly payments.

 

Item 27 adds new sections 124PGD and 124PGE at the end of Subdivision A of Division 2 of Part 3D of the Social Security Administration Act.  These new sections, respectively, establish the criteria that lead to a person becoming a trial participant in the Cape York area or the NT.

 

New subsection 124PGD(1) provides that a person is a trial participant in the Cape York area if:

(a)   the person’s usual place of residence is, becomes or was within the Cape York area; and

(b)   the person, or the person’s partner, is an eligible recipient of a category P welfare payment ; and

(c)   a written notice given under a law of Queensland from the Queensland Commission (presently the FRC) to the Secretary requiring that the person be a trial participant under this section is in force; and

(d)   if the person has a Part 3B payment nominee—that nominee is a CDC trial participant or is subject to IM under Part 3B.

 

Subitem 47(2) transitions notices given by the FRC to the Secretary, requiring a person to be subject to IM, for the purposes of the CDC trial under subsection 124PGD(1). 

 

Subsection 124PGD(2) clarifies that where a person becomes a trial participant under subsection (1) and continues to satisfy those criteria, the person continues to be a trial participant even if their usual place of residence is no longer in the Cape York area.

 

New section 124PGE provides a person can become a trial participant in the NT under subsections (1), (2), or (3).  These subsections largely replicate the IM participant criteria in order to ensure that existing IM participants are captured in the transition and that people with similar vulnerabilities will be moved onto the CDC trial in the future.

 

For the CDC trial, subsection 124PGE(1) reproduces the long-term welfare recipients and disengaged youth measures established under IM but combines the criteria into one subsection for the purposes of the CDC trial.  In a similar way, subsection 124PGE(2) merges the child protection and recognised State/Territory authority referral measures, while subsection 124PGE(3) reproduces the vulnerable welfare payment recipient measure. 

 

Under subsection 124PGE(1) a person is a trial participant if the:

(a)   the person’s usual place of residence is, becomes or was within the NT; and

(b)   the person is an eligible recipient of a category E welfare payment ; and

(c)   if the person has a Part 3B payment nominee—that nominee is a CDC trial participant or is subject to IM under Part 3B; and

(d)   the person is not undertaking full-time study (as defined by section 541B of the 1991 Act); and

(e)   the Secretary gives the person a notice under subsection (5) stating that the person is a trial participant under this subsection and the notice is in force; and

(f)    the person is not covered by a determination under subsection 124PHA(1); and

(g)   the person is not covered by a determination under subsection 124PHB(3).

 

The criterion to become a trial participant in subparagraph 124PGE(1)(e) that the Secretary must have given the person a notice has been included to facilitate the staggered rollout of the CDC trial across the NT.

 

Subparagraphs 124PGE(1)(f) and (g) ensure that a person does not become or continue to be a trial participant if they are covered by a wellbeing or exit determination under subsection 124PHA(1) or subsection 124PHB(3).   

 

The criteria to become a trial participant under subsection 124PGE(2), are consistent with subsection (1) except that the person or their partner must instead be an eligible recipient of a category P payment and, under subparagraph (2)(c), a child protection officer of the Northern Territory, or an officer or employee of a recognised State/Territory authority of the Northern Territory, must have given the Secretary a   written notice requiring that the person be a trial participant under the section and the notice is in force.  Additionally, paragraph 124PGE(2)(d) requires that the notice was given either under a law (whether written or unwritten) in force in the NT (other than a law of the Commonwealth) or in the exercise of the executive power of the NT.

 

The criteria to become a trial participant under subsection 124PGE(3) differ from subsection 124PGE(2) only in relation to the requirement that the person be an eligible recipient of a category P welfare payment and that the person is a vulnerable welfare payment recipient (within the meaning given in section 123UGA).

 

The category of payments to become a trial participant under subsections 124PGE(2) and (3) are broader as they apply to measures with additional criteria, for example the referral of a child protection officer.  Subsection 124PGE(4) clarifies that if a person becomes a trial participant under subsection (1) (2) or (3), the person continues to be a trial participant, even if their usual place of residence ceases to be in the NT, provided they continue to satisfy the criteria specified in the subsection under which they became a trial participant.

 

Subsection 124PGE(5) enables the Secretary to give a person a written notice stating that the person is a trial participant under subsection (1), (2) or (3).  This allows the Secretary to ensure that when a person transitions from IM to the CDC trial, they become a trial participant under the corresponding provision.  Subsection 124PGE(6) provides that the Secretary may revoke the notice at any time, while subsection 124PGE(7) clarifies that a notice given under subsection 124PGE(6) is not a legislative instrument.  This continues the position that applies under the CDC trial.

 

Item 28 omits ‘except the Bundaberg and Hervey Bay area’ from paragraph 124PH(1)(b).  This amendment will allow a person in the Bundaberg and Hervey Bay area to enter the CDC trial as a voluntary trial participant.

 

Item 29 repeals paragraph 124PH(1)(ba) which currently excludes a person from being a voluntary trial participant on that basis that they have a Part 3B payment nominee.  New paragraph 124PH(1)(ba) provides that a person who has a Part 3B payment nominee is a voluntary trial participant where the nominee is a CDC trial participant or is subject to IM under Part 3B.

 

Item 30 repeals paragraph 124PH(1)(bc) to ensure that a person is no longer excluded from being a voluntary participant on the basis that they have a weekly payment arrangement.

 

Item 31 adds new subsection 124PHA(5) which provides that a determination under subsection 124PHA(1) has no effect in relation to section 124PGD (which relates to trial participants in the Cape York area).  This excludes a person who is a trial participant from being exempted under 124PHA on the basis that the FRC has existing wellbeing exemption processes for people in the Cape York area who become CDC trial participants.  Allowing Cape York area CDC trial participants to access the broader CDC exit provisions would also undermine the jurisdiction of the FRC and impact on the autonomy of the Cape York Welfare Reform measure

 

Item 32 amends subsection 124PHB(1) to ensure that a person who is a CDC trial participant in the Cape York area under section 124PGD is not able to exit the CDC trial under section 124PHB. This also ensures the introduction of the CDC does not undermine the jurisdiction of the FRC.

 

Items 33 and 37 inserts new headings ‘Payments by instalments’ and ‘Payments otherwise than by instalments’ before subsections 124PJ(1) and 124PJ(2) respectively to guide the reader.

 

Item 34 amends subsection 124PJ(1) to ensure that trial participants moved onto the CDC trial under new sections 124PGD and 124PGE will not be subject to the same restricted portion and unrestricted portion as existing trial areas.  This will maintain the current restricted and unrestricted portions for the NT and Cape York area under IM.

 

Item 35 adds a note at the end of subsection 124PJ(1) to inform the reader that the restricted and unrestricted portion percentages may be varied under subsection (3) or section 124PK.

 

Item 36 adds new subsections 124PJ(1A), (1B) (1C) and (1D) after subsection 124PJ(1), which outline the restricted and unrestricted portion percentages that apply to a person who becomes a trial participant under new sections 124PGD and 124PGE.

 

New subsection 124PJ(1A) provides that for a person who is a trial participant under section 124PGD, the restricted portion is set at the percentage specified in a notice given by the Queensland Commission (presently the FRC) under paragraph 124PGD(1)(c).  If the notice given under paragraph 124PGD(1)(c) does not refer to a percentage for the purposes of the restricted portion, then the restricted portion will be set at 50 per cent of the gross amount of the payment.  The unrestricted portion is then set at either the remainder required to be equal to 100 per cent for those who are subject to notice in which the percentage of the restricted portion is specified, or the remaining 50 per cent where a notice does not specify a percentage for the restricted portion.  This subsection includes a note clarifying that the percentages for the restricted and unrestricted portions may be varied under subsection 124PJ(3).

 

New subsection 124PJ(1B) provides that for a person who is a trial participant under section 124PGE(1), both the restricted and unrestricted portions of a person’s gross payment are set at 50 per cent.  This subsection includes a note clarifying that the percentages for the restricted and unrestricted portions may be varied under subsection 124PJ(2A) or (3).

 

New subsection 124PJ(1C) provides that for a person who is a trial participant under section 124PGE(2), the restricted portion of the gross amount of a person’s payment is 70 per cent, with the unrestricted portion being the remaining 30 per cent.  This subsection includes a note clarifying that the percentages for the restricted and unrestricted portions may be varied under subsection 124PJ(2B) or (3).

 

New subsection 124PJ(1D) provides that for a person who is a trial participant under section 124PGE(1), both the restricted and unrestricted portions of a person’s gross payment are set at 50 per cent.  This subsection includes a note clarifying that the percentages for the restricted and unrestricted portions may be varied under subsection 124PJ(2B) or (3).

 

The restricted and unrestricted portions that being applied to the Cape York area and the NT under section 124PJ(1A), (1B), (1C) and (1D) reflect the portions that currently apply to these regions under the IM regime.

 

Item 38 adds a note at the end of subsection 124PJ(2) clarifying that the restricted and unrestricted portion percentages may be varied under subsection 124PJ(3).

 

Item 39 inserts new subsections 124PJ(2A), (2B) and (2C) which relate to the variation of the restricted and unrestricted portion percentages for NT trial participants.

 

New subsection 124PJ(2A) provides that the Minister may make a notifiable instrument that—for persons who are trial participants under subsection 124PGE(1) and whose usual place of residence is, becomes or was within an area specified in the instrument—varies :

(a)   the percentage for the restricted portion amount in paragraph 124Pj(1B)(a) to an amount higher than 50 per cent and less than or equal to 100 per cent; and

(b)   the percentage for the unrestricted portion amount in paragraph 124PJ(1B)(b) to an amount that is below 50 per cent (including 0 per cent).

 

This subsection will enable the Minister to increase the restricted portion for trial participants under 124PGE(1) for specific communities in the NT to reflect community requests.  It is appropriate for these variations to be made by determination because the Secretary has a power under subsection 124PJ(3) to determine the restricted and unrestricted portions for an individual which (as discussed below) will prevail over any ministerial determination in accordance with new subsection 124PJ(2C).

 

New subsection 124PJ(2B) provides that the Minister may make a notifiable instrument that, for persons who are trial participants under subsection 124PGE(2) or (3), varies:

(a)   the percentage for the restricted portion amount in paragraph 124PJ(1C)(a) or (1D)(a) to a percentage (not exceeding 100 per cent and including 0 per cent); and

(b)   the percentage for the unrestricted portion amount in paragraph 124PJ(1C)(b) or (1D)(b) to a percentage (not exceeding 100 per cent and including 0 per cent).

 

This subsection will enable the Minister to either increase or decrease the restricted and unrestricted portions for the entire cohort of trial participants under subsection 124PGE(2) or (3), to reflect requests made by a recognised State/Territory authority in the NT or a child protection officer. 

 

New subsection 124PJ(2C) clarifies that a determination made under subsection 124PJ(2A) or (2B) has no effect in relation to a trial participant during the period a determination under subsection 124PJ(3) is in effect in relation to the trial participant.  This ensures that a (general) Ministerial determination made under subsection 124PJ(2A) or (2B) has no effect where the Secretary has made a determination varying the percentages of the restricted and unrestricted portions for an individual under subsection 124PJ(3).

 

Item 40 inserts the heading ‘Variation by Secretary’ before subsection 124PJ(3) to guide the reader.

 

Items 41 and 42 amend paragraphs 123PJ(3)(a) and (b) to extend the Secretary’s  power to vary the restricted and unrestricted portions for a person who is a trial participant or voluntary participant so that it applies to people in the Cape York area and NT trial areas.

 

Item 43 adds new sections 124POA, 124POB, 124POC and 124POD at the end of Division 4 of Part 3D, which authorises certain information disclosures to be made to the Secretary by an officer or employee of a financial institution or by a member, officer or employee of a community body (as well as certain reverse disclosures).

 

New section 124POA will allow the Secretary to disclose information to a member, officer or employee of a community body that a person has ceased to be a trial participant or a voluntary trial participant.  This provision will support the functioning of community bodies in monitoring the effectiveness of the CDC trial.  It will also advance the interests of those people whose participation in the trial would pose a serious risk to their mental, physical or emotional wellbeing.  Under this provision, community bodies will know whether a person’s re-entry to the trial is unauthorised.  This will help ensure that these bodies do not take inappropriate action that may undermine the person’s wellbeing.  Community bodies will be advised only of the basis for the exemption and not any specific wellbeing factor or factors (or other sensitive personal information) relevant to the person.

 

New sections 124POB, 124POC and 124POD replicate the current information sharing provisions in place for IM in Part 3B of the Social Security Administration Act.  This will support information sharing between the Secretary on the one hand and, on the other, the FRC, child protection officers in the NT or other officers or employees of recognised State/Territory authority of the NT.  These powers are essential to ensure that the CDC trial operates effectively and that people can, or are only required to, enter and exit the CDC trial as is appropriate to their circumstances.

 

Items 44 and 45 insert new paragraphs into subsection 127(4) and section 144 of the Social Security Administration Act so that specified decisions relating to trial participation are not reviewable, respectively, by the Secretary or the Administrative Appeals Tribunal. These are decisions to:

·          make a payment to the credit of a CDC account under paragraph 123UF(4)(a) or subsection 123UP(2); and

·          give a notice under subsection 124PGE(5) that a person is a trial participant; and

·          revoke a notice under subsection 124PGE(6) that a person is a trial participant.

 

These decisions will be excluded from merits review due to their purpose and character as well as the inefficiencies associated with reviewing these matters.  In relation to decisions to transfer amounts from an IM account to a CDC account, this is an essential feature of participation in the CDC trial such that review and appeal processes could frustrate the CDC trial and create inefficiencies to the review and appeals system.

 

More specifically, a decision to issue a notice to a person under subsection 124PGE(5) is just one precondition to a person becoming a CDC trial participant.  The purpose of the notice is to activate the transition to the CDC trial in the Cape York area or the NT through an administrative process.  The precondition provides an evidentiary fact to commence trial participation and merely reflects other decisions made by other bodies such as the FRC, child protection officers of the NT or officers or employees of recognised State/Territory authority of the NT.  Those decisions will themselves be subject to review under the laws of the relevant jurisdiction.

 

For persons in respect of whom a notice is revoked under new subsection 124PGE(6), they will be able to enter the CDC trial as a voluntary participant provided they are within the scope of Part 3D of the Social Security Administration Act.  Otherwise, their participation in the CDC trial will not be appropriate.  Accordingly, any review of these decisions would be unwarranted and at risk of frivolous review applications.

 

Item 46 relates to the Secretary’s general powers to obtain information in section 192 of the Social Security Administration Act in the context of the CDC trial.  Section 192 allows the Secretary to require a person to give information, or produce a document, to the Department if the Secretary considers that the information or document may be relevant to a range of matters, including the operation of IM under Part 3B (see paragraph 192(db)).  This item amends paragraph 192(db) so that it extends to the operation of the CDC trial under Part 3D of the Social Security Administration Act. The effect of this amendment is that where the Secretary considers that information may be relevant to Part 3D, such as whether a person is or should be a CDC trial participant or how payments are administered, she may require information or a document under a person’s custody or control to be provided to the Department.  This amendment is essential to allow the Secretary to determine whether a person should not participate in the CDC trial on the basis of their mental, physical or emotion wellbeing or where they can demonstrate reasonable or responsible management of their affairs (including their financial affairs).  

 

Item 47 provides application and transitional provisions for the Cape York area.

 

Subitem 47(1) provides that new section 124PGD of the Social Security Administration Act applies in relation to a person whose usual place of residence is or becomes within the Cape York area on or after the day the item commences.  The note at the end of this subitem clarifies that section 124PGD may continue to apply to a person if the person’s usual place of residence ceases to be within the Cape York area after the item commences.

 

Subitem 47(2) provides a mechanism for recognising a written notice, given by the Queensland Commission (presently the FRC) in compliance with section 123UF of the Social Security Administration Act, requiring a person to be subject to IM to have the effect as if it had been given (in essentially the same circumstances) under section 124PGD.  This subitem ensures minimal impact on the FRC and IM participants who are transitioning to the CDC trial because there will be no need for FRC to issue new notices. It relates to notices issued by the FRC before the commencement of Item 47.

 

Subitem 47(4) similarly translates written notices requiring a person to be subject to IM given by the Queensland Commission (presently the FRC) on or after the commencement of Item 47 in compliance with section 123UF.  By allowing the Secretary to accept notices given for the purposes of IM, this subitem allows the FRC to continue referring people for welfare quarantining without amending the Families Responsibilities Commission Act 2008 (Qld) which would otherwise be required .

 

Subitems 47(3) and (5) provide that subitem (2) and (4) cease to apply in relation to the person and a notice referred to in paragraph (2)(a) and (4)(a) in item 47 if the notice is withdrawn or revoked.

 

Subitem 47(6) provides that if subitem (2) or (4) applies in relation to a person; and the notice referred to in paragraph (2)(a) or (4)(a) specifies a percentage in connection with the exercise of a power of the Secretary under subsection 123XM(3) of the Social Security Administration Act in relation to the person, then that percentage is   taken to be the percentage applicable under subparagraph 124PJ(1A)(a)(i) of that Act in relation to the person.  This subitem ensures that the FRC maintains its capacity to determine the appropriate restricted and unrestricted portion percentages in line with current IM practice.

 

Item 48 sets out application and transitional provisions for the NT. Subitem 48(1) provides that new section 124PGE of the Social Security Administration Act applies in relation to a person whose usual place of residence is within the NT on the day this item commences or becomes within the NT, on or after the day this item commences.  The note at the end of this subitem clarifies that section 124PGE may continue to apply to a person if the person’s usual place of residence after the commencement of this item ceases to be in the NT.

 

Subitem 48(2) transitions written notices given by a child protection officer under and in compliance with section 123UC, or an officer or employee of a recognised State/Territory authority of the NT under section 123UFAA, to be a notice in respect of which paragraphs 124PGE(2)(c) and (d) of the Social Security Administration Act are satisfied.  For a notice to be transitioned, this subitem also requires that the notice be given under a law (whether written or unwritten) in force in the NT (other than a law of the Commonwealth), or in the exercise of the executive power of the NT; and that the notice was in force immediately before the commencement of this item.

 

Subitem 48(4) similarly transitions written notices requiring a person to be subject to the IM regime given by relevant persons on or after the commencement of item 48 in compliance with section 123UFAA.

 

Subitems 48(3) and (5) provide, respectively, that subitems 48(2) and (4) cease to apply in relation to the person and notice referred to in paragraph (2)(a) and (4)(a) if the notice is withdrawn or revoked.

 

Subitem 48(6) provides that new paragraph 123PGE(3)(c) that a person is a vulnerable welfare payment recipient (which is a precondition for trial participation in the NT) applies in relation to a determination made under section 123UGA before, on or after Item 48 commences.

 

Item 49 provides that new section 124POA will apply to a person who ceases to be a trial participant or a voluntary participant on or after the commencement of item   48.  This is required to ensure that section 124     POA will apply to exiting trial participants so that information disclosures can take place in a way that provides protective support.   

 

Item 50 confers a power on the Minister to make rules, by legislative instrument, prescribing transitional matters (including saving or application provisions relating to the amendments or repeals made Part 2 of this Schedule).  The new power is not limited by any other amendments in the Part 2 of the Schedule other than by subitem 50(2), which provides that the rules may not:

·          create an offence or civil penalty;

·          provide powers of (a) arrest or detention or (b) entry, search or seizure;

·          impose a tax;

·          set an amount to be appropriate from the Consolidated Revenue Fund under an appropriation in the Act;

·          directly amend the text of the Act.

 

As a legislative instrument, any rule made by the Minister under this provision will be subject to disallowance by the Parliament.

 

 

Part 3 - Stage 3 amendments

 

Item 51 repeals subsections 124PS(2) and (3) to remove the statutory requirement that an evaluation be conducted by an independent expert within 6 months of the completion of the trial review.  This addresses the potentially circular nature of current section 124PS.  The repeal of subsection 124PS(3) removes the requirement on independent experts to consult trial participants which, in turn, will avoid the ethical implications of unnecessary repeat contact with vulnerable individuals. 

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SERVICES LEGISLATION AMENDMENT

SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (INCOME MANAGEMENT TO CASHLESS DEBIT CARD TRANSITION) 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

 

This Bill sets out the transition of Income Management participants in the Northern Territory and Cape York region in Queensland onto the Cashless Debit Card and extends the end for existing Cashless Debit Card trial areas from 30 June 2020 to 30 June 2021 with the exception of Cape York, which has an end date of 31 December 2021.

 

These measures will give further certainty to participating communities and will continue to improve outcomes for individuals and families in those communities.  

 

Human rights implications

 

The Parliamentary Joint Committee on Human Rights conducted a review of the Social Services Legislation Amendment (Cashless Debit Card) Bill 2017, 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 Social Security (Administration) Act 1999 (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)      

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

(e)    encourage socially responsible behaviour.



 

In other words, the Cashless Debit Card 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 meet the needs of any children, and can lead to long-term welfare dependency.  The primary purpose of the Cashless Debit Card trial is to reduce harm at a community level from the use of harmful products such as alcohol, illicit 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 first independent evaluation of the Cashless Debit Card Trial by ORIMA Research was released on 1 September 2017, and included results from the first two trial sites, Ceduna, South Australia, and the East Kimberley, Western Australia.  It 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.”  Results found that 41 per cent of participants surveyed who drank alcohol reported drinking less frequently; 48 per cent of participants surveyed who used drugs reported using drugs less frequently; and 48 per cent of those who gambled before that trial reported gambling less often.

 

A baseline data collection in the Goldfields, Western Australia, undertaken by the University of Adelaide, was released on 21 February 2019.  The report measured socioeconomic conditions prior to the introduction of the card, and the community’s initial perceptions of the Cashless Debit Card immediately following implementation.  Many respondents reported a reduction in levels of substance misuse, a decrease in alcohol-related antisocial behaviour and crime, improvements in child welfare, and improvements in financial literacy and management.

 

The University of Adelaide is also currently undertaking a second impact evaluation of Ceduna, the East Kimberley, and the Goldfields, and a baseline data collection in the Bundaberg and Hervey Bay region, Queensland.  This is in line with the Government’s commitment to ensure the Cashless Debit Card is meeting its objectives of promoting positive outcomes for communities and responsible spending of welfare money. 

Extending the Cashless Debit Card for a further 12 months and transitioning Income Management participants in the Northern Territory and the Cape York area to the Cashless Debit Card trial will result in more communities experiencing positive outcomes and a reduction in the social harm caused by alcohol, drug and gambling misuse.



 

General safeguards

 

The Cashless Debit Card trial aims to support communities where high levels of welfare dependence coexist with high levels of social harm by limiting the amount of welfare payment available as cash in a community.  It does not affect people according to race, religion, ethnicity or any other factor.  It is not a punitive measure, nor is it designed to stigmatise people.  It aims to ensure that income support payments are spent in the best interests of welfare payment recipients and their dependents, and in line with community expectations.

 

A number of general safeguards that help to protect human rights have been incorporated into the operation of the Cashless Debit Card trial and the transition of Income Management participants onto the Cashless Debit Card trial in the Northern Territory.

 

Firstly, the rollout of the Cashless Debit Card has been and continues to be the subject of an extensive community consultation and engagement process. 

 

The Department of Social Services (DSS) has held several information sessions throughout the Northern Territory in preparation for the transition and consulted with key community leaders and organisations to provide initial information about the Cashless Debit Card and seek guidance about the most appropriate way to consult with the broader community.  The information sessions focused on providing communities with an understanding of the Cashless Debit Card product, how it operates, and how the card is different in both policy and function to the BasicsCard in the Income Management regime.

 

Secondly, following the first initial independent, comprehensive evaluation of the first two Cashless Debit Card trial areas, the Government is conducting a second evaluation of the Cashless Debit Card trial across the first three trial sites, to assess the ongoing effectiveness of the trial.  This will continue to build on initial results and further develop a rigorous evidence base for the Cashless Debit Card.  It will draw on data and methodology developed as part of the Goldfields baseline data collection, and utilise data collected through program monitoring. Findings from the second evaluation will be published in late 2019.

 

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’. 



 

Across all Cashless Debit Card trial areas, 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.  In targeted communities, support from leaders is driven by the view that the Cashless Debit Card trial can help address this harm, particularly where dependence is also high.

 

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.  Rather, there is 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 drugs.

 

Further, the Bill does not introduce a new area to welfare quarantining arrangements.  Rather, the Bill transitions the Northern Territory and Cape York area from Income Management to the Cashless Debit Card and extends the Cashless Debit Card in existing sites for a further 12 months. 

 

Under both the Income Management regime and the Cashless Debit Card trial, portions of social security payments received by a participant are quarantined, and the participant is unable to purchase restricted goods or withdraw cash using this portion.  Income Management participants have between 50 and 90 per cent of their payment quarantined, according to the participant’s specific measure. 

 

Participants transitioning from the Income Management regime to the Cashless Debit Card trial will get to keep their existing quarantine rate.  The benefits of the Cashless Debit Card program include a more streamlined approach to welfare quarantining, the use of improved technology, and fewer restrictions on purchases that allow participants to shop from a wide variety of sellers, including online retailers, thereby increasing a participant’s ability to spend their welfare payments to meet their essential needs.

 

Businesses that sell restricted items can serve participants where they have systems in place that do not allow for the sale of such products to holders of a Cashless Debit Card.  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 Cashless Debit Card, 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 Cashless Debit Card itself is a standard Visa debit card that can be used at the majority of merchants that accept EFTPOS payments.  The account allows for a range of flexible payment options including online transfers, BPAY, 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 Cashless Debit Card trial, 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 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 limits the right to a private life.  The Cashless Debit Card 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.  Therefore, the limitation that is placed on the right to a private life with the Cashless Debit Card is directly related to improving the welfare of the recipient and any dependents.

 

The Cashless Debit Card trial also engages the right to privacy. Section 124PN of the Act 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 Cashless Debit Card trial.  As a result, there are still safeguards in place to protect individual privacy.  Any information collected by the Department of Social Services (DSS) or Services Australia will be protected information that is subject to the secrecy provisions in the Act.  Both Government and the card provider are required to act in accordance with the Privacy Act 1988 , 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, the Government cannot see what items or products people are purchasing, only the merchants in which the money is being spent

 

The section seeks to enable the Cashless Debit Card trial to achieve a legitimate objective and are necessary for the trial to operate and be evaluated effectively.  In order to establish bank accounts for participants, Services Australia must transfer customer information to the card provider.  The card provider in turn provides new account details back to Services Australia.  While the Cashless Debit Card 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 Cashless Debit Card trial could not proceed.

 

Proposed sections 124POA to 124POD of the Bill expand the existing disclosure provisions for the disclosure of information under Income Management to the Cashless Debit Card trial provisions.  The purpose of disclosures by the Secretary under these provisions is to ensure that the Cashless Debit Card trial is properly administered and appropriate information can be shared about a participant to provide protective support.

 

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 ‘ to 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 trial operates, receiving a payment and being of a certain age as specified by instrument or legislation, will become a Cashless Debit Card trial participant.  The Cashless Debit Card trial is therefore not targeted at people of a particular race, but to welfare recipients who meet particular criteria.  In addition, this Bill extends the operation of the Cashless Debit Card in existing sites and introduces the Cashless Debit Card into the Northern Territory and Cape York area where welfare quarantining arrangements are already in place.

 

Right to be free from self-incrimination

 

Article 14(3)(g) of the ICCPR protects the right of an individual to be free from self-incrimination in the determination of a criminal charge by providing that a person may not be compelled to testify against him or herself or confess guilt.  The privilege against self-incrimination may be subject to permissible limits.  Any limitations must be for a legitimate objective and be reasonable, necessary and proportionate to that objective.  The right to privilege against self-incrimination can be revoked where a statutory body is authorised to compel individuals to produce information, which may incriminate that individual.

The proposed amendment to paragraph 192(db), to extend the powers to Part 3D of the Act, seeks to achieve the legitimate objective of investigating the operation of the Cashless Debit Card including to determine whether a person is or should be a Cashless Debit Card participant or how payments are administered.  There is not a less restrictive investigative technique available that provide the same information-gathering purpose and requiring trial participants to provide information voluntarily is unlikely to be effective. Compelling a person to provide information under this section is reasonably capable of achieving the stated aim of investigating the effective operation of welfare payments and the Cashless Debit Card trial.  Section 197A excludes information given on a compulsory basis from being admissible in criminal proceedings (except for proceedings in respect of giving false or misleading information).

 

Items 43 and 46 of the Bill operates to limit the right to be free from self-incrimination by expressly removing the privilege against self-incrimination in relation to the production or disclosure of information specific to the trial or voluntary participant.  This is necessary to ensure that DSS can check the records (required to be kept by law) to verify that a person is receiving whole or part of certain welfare payments and therefore subject to welfare quarantining under the Act.  Allowing a claim of privilege in relation to such information would be contrary to the purpose of the legislation, as the production of this disclosed information is directly relevant to the operations of Part 3D under the Act.  These provisions are in place to ensure the due performance of functions or exercise of powers provided for under legislation, and also ensure that a proper transition from Income Management to the Cashless Debit Card can be adequately and appropriately implemented.  



 

Items 43 and 46 of the Bill also provides for collection, storage, use or disclosure of other personal information, removing the privilege against self-incrimination which represents a loss of personal liberty for a welfare recipient whose information (whether they are a trial participant or voluntary participant) is shared between the Secretary and community bodies, the Queensland Commission (presently the Family Responsibilities Commission), child protection officer of the Northern Territory, or officers or employees of a recognised State/Territory authority of the Northern Territory. 

 

The limitations discussed above are reasonable, necessary and proportionate to achieving the objectives of the Cashless Debit Card trial as they enable the Secretary to ascertain the fact regarding the circumstances of trial participants.  By modifying the application of the privilege against self-incrimination, the Bill ensures that it is the public interest to properly transition Income Management participants onto the Cashless Debit Card, and to improve their financial management practices more generally.

 

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’. 

 

Under the Cashless Debit Card trial, people are able to spend their restricted funds on any goods or services except alcohol, gambling and illicit drugs because 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.  In addition, the transition from Income Management to the Cashless Debit Card trial offers more opportunities for participants to spend their quarantined welfare payments, for example by allowing the use of online shopping.

 

The transition of Income Management participants to the Cashless Debit Card trial will not impact on or interfere with a person’s right to pursue freely their economic, social or cultural development. 

 

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 trial does not limit the right to an adequate standard of living for affected people.  Under the Cashless Debit Card trial , people 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 Cashless Debit Card trial does not restrict a person’s 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 through the use of a Cashless Debit Card can improve living conditions for the children of welfare recipients.  An independent evaluation conducted by ORIMA Research in 2017 showed that the Cashless Debit Card trial had a considerable positive impact in reducing the harms related to the misuse of alcohol, drugs and gambling.  The evaluation also found several widespread spill-over benefits, including 40 per cent of the participants surveyed were better able to look after their children and 45 per cent were better able to save money.  There was also a decrease in requests for emergency food relief and financial assistance in Ceduna and merchants reported in increased purchases of baby food, clothing and other goods for children.

 

In 2018, DSS commissioned the Future of Employment and Skills Research Centre (FES) at the University of Adelaide to undertake an independent collection of baseline data from trial participants to allow an assessment of the conditions in the Goldfields region around the time of the rollout of the Cashless Debit Card program.  The findings of participants taking part in the study reported positive impacts relating to improvements in child welfare and wellbeing.  These improvements in child wellbeing were as a result of the changes in spending patterns with the introduction of the Cashless Debit Card, which led to children in the region having an increase in the provision of food, being suitability clothed in and out of school, improved access to toys such as bikes and scooters as well as having better general health and hygiene attributable to receiving access to vital medical treatment.

 

Therefore, measures used to restrict payment spent on alcohol, drugs and gambling by each participant on the Cashless Debit Card trial can be used to 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 Bill is compatible with human rights.  The extension of the Cashless Debit Card trial and the transition of participants on Income Management to the Cashless Debit Card will advance the protection of human rights by ensuring that welfare payments are spent in the best interests of welfare recipients and their dependents by restricting spending on alcohol, drugs and gambling.

 

To the extent that the Bill will limit human rights, those limitations are reasonable, necessary and proportionate to achieving the objectives of the welfare quarantining measures.  The Cashless Debit Card program aims 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