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Social Services Legislation Amendment (Cashless Debit Card Trial Expansion) Bill 2018

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2016-2017-2018

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

Social Services Legislation Amendment (Cashless Debit Card Trial Expansion) BILL 2018

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Social Services, the Hon Dan Tehan MP)



 

SOCIAL SERVICES LEGISLATION AMENDMENT (CASHLESS DEBIT CARD TRIAL EXPANSION) BILL 2018

 

OUTLINE

 

These amendments move the current content of the Social Security (Administration) (Trial of Cashless Welfare Arrangements) Determination 2018 into primary legislation or, in uncontentious cases such as authorising Community Bodies, into notifiable instruments. The amendments prescribe trial participants, allow for the variation of restricted portions of restrictable payments in particular circumstances, and make clear merchants capacity to decline particular transactions using the cashless debit card involving alcoholic beverages or gambling, for existing trial sites. The amendments also repeal the Determination.

 

 

Financial impact statement

 

The financial impact of these amendments is nil.



 

 

Social Services Legislation Amendment (Cashless Debit Card Trial Expansion) Bill 2018

 

Government amendments

 

 

These amendments move the current content of the Social Security (Administration) (Trial of Cashless Welfare Arrangements) Determination 2018 into primary legislation or, in uncontentious cases such as authorising Community Bodies, into notifiable instruments. The amendments prescribe trial participants, allow for the variation of restricted portions of restrictable payments in particular circumstances, and make clear merchants capacity to decline particular transactions using the cashless debit card involving alcoholic beverages or gambling, for existing trial sites. The amendments also repeal the Determination.

 

The amendments generally commence upon the day after the Act receives the Royal Assent.

 

NOTES ON AMENDMENTS

 

In this explanatory memorandum:

  • ‘the Determination’ means the Social Security (Administration) (Trial of Cashless Welfare Arrangements) Determination 2018 ;
  • ‘the Administration Act’ means the Social Security (Administration) Act 1999

 

Amendment (1) sets out the commencement date for the amendments contained in new Schedule 1A inserted by these amendments.

 

Amendment (2) replaces the commencement date for the contingent amendments set out in Part 2 of Schedule 1 to the Act, to reflect the earlier commencement of Schedule 1A set out above.

 

Amendment (3) inserts Schedule 1A before existing Schedule 1 to the Bill.

 

Schedule 1A

 

Item 1 updates the definition of ‘trial participant’ consequential to item 4 below.

 

Item 2 amends subsection 124PD(2), which provides for capacity to determine a part of an area to exclude it from the definition of trial area, to substitute determination by notifiable instrument rather than legislative instrument. Exclusions of areas from the legislated trial areas changes the scope of the trial, but does not directly affect any individual’s rights or alter the content of the law. Any change to an individual’s circumstances will result from the factors determining whether any particular person is a trial participant, of which residence in a trial area is only one factor.

 

Item 3 amends section 124PE to allow a Community body to be authorised by notifiable instrument, rather than legislative instrument. The authorisation of a Community body empowers that body to enter into agreements with trial participants and vary the restricted portion of their payment. However, the authorisation of a Community body of itself does not alter the content of the law or affect any individual’s rights.

 

Item 4 repeals section 124PG and inserts new sections 124PG, 124PGA and 124PGB .

 

New section 124PG provides for trial participants in the Ceduna area, broadly duplicating current sections 12 and 13 of the Determination. The geographical boundaries of the Ceduna area are detailed in subsection 124PD(1) of the Administration Act.

 

In order to be a trial participant in the Ceduna area, a person’s usual place of residence must currently be, becomes or was within the Ceduna area. The person must be receiving a trigger payment, not have reached pension age, not have a payment nominee (as this term is defined for the Part 3B income management provisions), their ABSTUDY scheme payment is not being paid to another person, is not receiving weekly payments, not subject to the income management regime under potentially applicable income management measures, subsection 124PG(3) does not apply to the person and the person is not covered by a determination under subsection 124PG(4).

 

Subsection 124PG(2) provides that to avoid doubt, if a person’s usual place of residence becomes within the Ceduna area (at a time when it is a trial area) and they otherwise meet all the elements of subsection 124PG(1), then the person is a trial participant on or after the day that the person’s usual place of residence becomes within that area.

 

Subsection 124PG(3) will apply to a person, such that they are not a trial participant, if the person is undertaking full-time study as defined in section 541B of the Social Security Act 1991 , and while undertaking that study, the person is living outside the Ceduna area.

 

Subsection 124PG(4) provides that the Secretary must determine that a person is not a trial participant under this section if the Secretary is satisfied that being a trial participant under this section would pose a serious risk to the person’s mental, physical or emotional wellbeing. To avoid undue administrative burden in administering the scheme, the Secretary is not required, under subsection 124PG(5), to inquire into whether a person being a trial participant would pose a serious risk to the person’s mental, physical or emotional wellbeing. However, if the Secretary became aware that subsection 124PG(4) may apply to a person, the Secretary would respond by considering making a determination.

 

Under subsection 124PG(6), a determination under subsection 124PG(4) is not a legislative instrument. This section is declaratory only, because such a determination is not legislative in character, in that it affects only the person.

 

New section 124PGA provides for trial participants for the East Kimberley trial area, broadly duplicating current sections 10 and 11 of the Determination. The geographical boundaries of the East Kimberley area are detailed in subsection 124PD(1) of the Administration Act.

 

In order to be a trial participant in the East Kimberley area, a person’s usual place of residence is, becomes or was within the East Kimberley area. The person must be receiving a trigger payment, not have reached pension age, not have a payment nominee (as this term is defined for the Part 3B income management provisions), their ABSTUDY scheme payment is not being paid to another person, is not receiving weekly payments, not subject to the income management regime under potentially applicable income management measures, subsection 124PGA(3) does not apply to the person and the person is not covered by a determination under subsection 124PGA(4).

 

Subsection 124PGA(2) provides that to avoid doubt, if a person’s usual place of residence becomes within the East Kimberley area (at a time when it is a trial area) and they otherwise meet all the elements of subsection 124PGA(1), then the person is a trial participant on or after the day that the person’s usual place of residence becomes within that area.

 

Subsection 124PGA(3) will apply to a person, such that they are not a trial participant, if the person is undertaking full-time study as defined in section 541B of the 1991 Act, and while undertaking that study, the person is living outside the East Kimberley area.

 

Subsection 124PGA(4) provides that the Secretary must determine that a person is not a trial participant if the Secretary is satisfied that being a trial participant under this section would pose a serious risk to the person’s mental, physical or emotional wellbeing. To avoid undue administrative burden in administering the scheme, the Secretary is not required, under subsection 124PGA(5), to inquire into whether a person being a trial participant would pose a serious risk to the person’s mental, physical or emotional wellbeing. However, if the Secretary became aware that subsection 124PGA(4) may apply to a person, the Secretary would respond by considering making a determination.

 

Under subsection 124PGA(6), A determination under subsection 124PGA(4) is not a legislative instrument. This section is declaratory only, because such a determination is not legislative in character, in that it affects only the person.

 

New section 124PGB provides for trial participants for the Goldfields trial area, broadly duplicating current sections 8 and 9 of the Determination. The geographical boundaries of the Goldfields area are detailed in subsection 124PD(1) of the Administration Act.

 

In order to be a trial participant in the Goldfields area, a person’s usual place of residence is, becomes or was within the Goldfields area. The person must be receiving a trigger payment, not have reached pension age and will not reach pension age before 26 March 2019 (which is 12 months after the commencement of the Goldfields trial under the Determination, to ensure that a person would not be placed on the card for a short period of time before reaching pension age). The person must not have a payment nominee (as this term is defined for the Part 3B income management provisions), their ABSTUDY scheme payment is not being paid to another person, is not receiving weekly payments, not subject to the income management regime under potentially applicable income management measures, subsection 124PGB(3) does not apply to the person and the person is not covered by a determination under subsection 124PGB(4).

 

Subsection 124PGB(2) provides that to avoid doubt, if a person’s usual place of residence becomes within the Goldfields area (at a time when it is a trial area) and they otherwise meet all the elements of subsection 124PGA(1), then the person is a trial participant on or after the day that the person’s usual place of residence becomes within that area.

 

Subsection 124PGB(3) will apply to a person, such that they are not a trial participant, if the person is undertaking full-time study as defined in section 541B of the 1991 Act, and while undertaking that study, the person is living outside the Goldfields area.

 

Subsection 124PGB(4) provides that the Secretary must determine that a person is not a trial participant if the Secretary is satisfied that being a trial participant under this section would pose a serious risk to the person’s mental, physical or emotional wellbeing. To avoid undue administrative burden in administering the scheme, the Secretary is not required, under subsection 124PGB(5), to inquire into whether a person being a trial participant would pose a serious risk to the person’s mental, physical or emotional wellbeing. However, if the Secretary became aware that subsection 124PGB(4) may apply to a person, the Secretary would respond by considering making a determination.

 

Under subsection 124PGB(6), a determination under subsection 124PGB(4) is not a legislative instrument. This section is declaratory only, because such a determination is not legislative in character, in that it affects only the person.

 

Item 5 repeals and substitutes paragraph 124PH(1)(a), providing for when a person may be a voluntary participant in the trial. Voluntary participants will be limited to persons receiving a trigger payment (defined in section 124PD) or an age pension.

 

This minor refinement to the scope of the voluntary participant provisions under the current Act and Determination will not exclude any current voluntary participants in the trial.

 

Item 6 inserts additional limitations upon who may be a voluntary participant. Voluntary participants may only be persons who do not have a payment nominee (within the meaning of the Part 3B income management provisions), their ABSTUDY payment is not being paid to another person, they are not receiving weekly payments and are not subject to the income management regime under Part 3B.

 

Items 7 and 8 remove the current reference to a legislative instrument determining persons who may not be voluntary participants. Item 8 repeals section 124PI which empowers the making of this aspect of the Determination. Item 7 is consequential, to retain the current power of the Secretary in subsection 124PH(3) to determine that a person is not to be a voluntary participant.

 

Item 9 moves into the Act the circumstances in which the Secretary may determine a changed restricted portion of payments made to trial participants and voluntary participants, which are currently determined under sections 17, 18 and 19 of the Determination. This item repeals subsection 124PJ(3) to (5), and substitutes new subsection 124PJ(3) to (6).

 

New subsection 124PJ(3) enables the variation of the restricted portion to zero, and the unrestricted portion to 100 per cent in the circumstances set out in subsection 124PJ(4).

 

New subsection 124PJ(4) prescribes circumstances in which restriction of payments will cease. These include where the Secretary is satisfied that the person is unable to use the person’s debit card that was issued to the person and that is attached to the person’s welfare restricted bank account, or is unable to access that account, as a direct result of a technological fault or malfunction with that card or account; or a natural disaster. These terms take their ordinary meaning. The circumstances also include where the person’s restrictable payment is payable in instalments and the Secretary is satisfied that any part of the payment is payable at a time determined under subsection 43(2), where that determination is made because the person is in severe financial hardship as a result of exceptional and unforeseen circumstances; or under a determination under subsection 51(1), relating to advances in cases of severe financial hardship.

 

New subsection 124PJ(5) provides that a determination under subsection 124PJ(3) takes effect on the day specified in the determination (which must not be any earlier than the day on which the determination is made).

 

New subsection 124PJ(6) provides that a determination under subsection 124PJ(3) is not a legislative instrument. This section is declaratory only, because such a determination is not legislative in character, in that it affects only the person.

 

Items 10, 11 and 12 relate to the interaction of determinations of restrictable portions made by Community bodies and determinations made under section 124PJ. Item 10 repeals subsection 124PK)(4) because it refers to the legislative instrument made under subsection 124PJ(3) or (4) which are repealed and substituted by item 9 above. Item 11 is consequential to item 12. Item 12 gives priority to a determination of a restricted portion under subsection 124PJ(3) in emergency or hardship circumstances by new subsection 124PK(6) providing that any pre-existing determination by a Community body has no effect while a determination under subsection 124PJ(3) is in effect.

 

Items 13 and 14 bring forward amendments previously contained in Schedule 1 to the Bill.

 

Item 13 inserts new subsection 124PQ(2A), providing an additional exemption from the Competition and Consumer Act 2010 . New subsection 124PQ(2A) provides that for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 , the declining of a transaction by a supplier of goods or services is specified and specifically authorised if the transaction would involve money in a welfare restricted bank account and the obtaining of:

            (i)         alcoholic beverages; or

            (ii)        gambling; or

(iii)       a cash-like product that could be used to obtain alcoholic beverages or gambling.

 

A note alerts the reader that a ‘cash-like product’ is defined in new section 124PQA inserted by item 14 below.

 

Item 14 inserts new section 124PQA after section 124PQ. New section 124PQA provides that, without limiting sections 124PM and 124PQ, cash-like product includes any of the following:

(a)        a gift card, store card, voucher or similar article (whether in a physical or electronic form);

(b)        a money order, postal order or similar order (whether in a physical or electronic form);

(c)        digital currency.

 

These terms are not further defined, but take their ordinary meaning.

 

Item 15 provides application and transitional provisions for these amendments.

 

Subitem 15(1) provides that Section 124PG of the Administration Act, as substituted by this Schedule, applies in relation to a person whose usual place of residence is, on the day this item commences, within the Ceduna area; or becomes, on or after the day this item commences, within the Ceduna area.

 

Subitem 15(2) provides that Paragraph 124PG(1)(a) of the Administration Act , as substituted by this Schedule, is taken to be satisfied in relation to any person whose usual place of residence was within the Ceduna area on any day during the period beginning on 15 March 2016 and ending at the end of the day this Act receives the Royal Assent. This earlier day is the day that Ceduna first became declared as a trial area.

 

Subitem 15(3) provides that Section 124PGA of the Administration Act, as substituted by this Schedule, applies in relation to a person whose usual place of residence is, on the day this item commences, within the East Kimberley area; or becomes, on or after the day this item commences, within the East Kimberley area.

 

Subitem 15(4) provides that Paragraph 124PGA(1)(a) of the Administration Act, as substituted by this Schedule, is taken to be satisfied in relation to any person whose usual place of residence was within the East Kimberley area on any day during the period beginning on 26 April 2016 and ending at the end of the day this Act receives the Royal Assent. This earlier day is the first day that East Kimberley first became declared as a trial area.

 

Subitem 15(5) provides that Section 124PGB of the Administration Act, as substituted by this Schedule, applies in relation to a person whose usual place of residence is, on the day this item commences, within the Goldfields area; or becomes, on or after the day this item commences, within the Goldfields area.

 

Subitem 15(6) provides that paragraph 124PGB(1)(a) of the Administration Act as substituted by this Schedule, is taken to be satisfied in relation to any person whose usual place of residence was within the Goldfields area on any day during the period beginning on 26 March 2018 and ending at the end of the day this Act receives the Royal Assent. This earlier day is the first day that Goldfields first became declared as a trial area.

 

Item 16 repeals the Social Security (Administration) (Trial of Cashless Welfare Arrangements) Determination 2018.

 

Item 17 is a saving provision.

 

Subitem 17(1) provides that despite the amendments made by this Schedule, a legislative instrument in force under subsection 124PD(2) of the Administration Act immediately before the commencement of this item continues in force on and after that commencement until the first notifiable instrument made under that subsection commences.

 

Subitem 17(2) provides that despite the amendments made by this Schedule, a legislative instrument in force under section 124PE of the Administration Act immediately before the commencement of this item continues in force on and after that commencement until the first notifiable instrument made under that section commences.

 

This allows time for new notifiable instruments declaring excluded trial areas and Community Bodies to be made, while preserving the effect of the current instrument.

 

Amendment (4) amends the heading to Schedule 1 to the Bill, to change the heading to make clear those amendments start later than the amendments in new Schedule 1A.

 

Amendment (5) is consequential to amendment (8) below.

 

Amendment (6) proposes removal of items 4 to 6, which relate to community bodies, and have been superseded by the amendment at item 3 of Schedule 1A above.

 

Amendment (7) proposes removal of item 9, which relates to the heading to section 124PG and the former Ministerial Instrument element of that section, superseded by item 4 of Schedule 1A above.

 

Amendment (8) renumbers proposed new section 124PGA at item 10 to become section 124PGC, after new sections 124PG, 124PGA and 124PGB inserted by item 4 of Schedule 1A above.

 

Amendment (9) adds a new subsection to section 124PGA inserted by item 10 to provide that a determination under subsection 124PGA(4) is not a legislative instrument. This section is declaratory only, because such a determination is not legislative in character, in that it affects only the person.

 

Amendment (10) omits items 12, 13, 14, 15 and 16, which are superseded by items 9, 10, 11, 12, 13 and 14 of Schedule 1A above, and substitutes an application provision providing that Section 124PGC of the Administration Act as added by this Part, applies in relation to a person whose usual place of residence is, on the day this item commences, within the Bundaberg and Hervey Bay area; or becomes, on or after the day this item commences, within the Bundaberg and Hervey Bay area.

 

Amendment (11) substitutes reference to 124PGC(1)(b) for existing reference to 124PGA(1)(b) in item 22, consequential to the renumbering effected at amendment (8) above.



 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SERVICES LEGISLATION AMENDMENT

(CASHLESS DEBIT CARD TRIAL EXPANSION) BILL 2018

 

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

Overview of the Bill

These amendments move the current content of the Social Security (Administration) (Trial of Cashless Welfare Arrangements) Determination 2018 into primary legislation or, in uncontentious cases such as authorising Community Bodies, into notifiable instruments. The amendments prescribe trial participants, allow for the variation of restricted portions of restrictable payments in particular circumstances, and make clear merchants capacity to decline particular transactions using the cashless debit card involving alcoholic beverages or gambling, for existing trial sites. The amendments also repeal the Determination.

 

 

Human rights implications

The Parliamentary Joint Committee on Human Rights reviewed the Social Services Legislation Amendment (Cashless Debit Card Trial Expansion) Bill 2018, and previously the Social Services Legislation Amendment (Cashless Debit Card) Bill 2017 . Both reviews notes the Committee’s view that the cashless debit card engages and limits three human rights: the right to social security, the right to a private life and the right to equality and non-discrimination.

 

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

 

Objectives

 

The objectives of the cashless debit card, set out in Part 3D of the Act, are to:

 

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

(b) determine whether such a reduction decreases violence or harm in the 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 cashless debit card has the objective of reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behaviour, and reducing the likelihood that welfare payment recipients will 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 cashless debit card’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 cashless debit card 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. This support remains today, with community leaders in Ceduna, East Kimberley and the Goldfields heartened by the results and positive impact the card has had on the community as a whole, not just the participants themselves.

 

Research by the Australian National University (ANU), co-commissioned by the Australian Research Council, and the Commonwealth Government, indicates that risk factors such as attitudes to work and welfare, attitudes towards alcohol and drug consumption, and family influences contribute to intergenerational welfare dependency. The ANU also found evidence that young people from welfare dependent families are more likely to smoke, drink alcohol or consume illegal drugs, thus highlighting the relationship that welfare dependence has on a young person’s outcomes in life.

 

The expansion of the cashless debit card trial to a fourth site, in the Bundaberg and Hervey Bay area, with a more targeted cohort approach, allows the cashless debit card to influence positive behaviour change before welfare dependency becomes entrenched. Setting the age limit at 36 allows the Australian Government to target most young people and families with young children who are receiving welfare payments.

 

The final 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.

 

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

 

In particular, the evaluation reported the following findings:

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

·          Of those who said they had participated in binge drinking (drunk six or more drinks in one sitting) before the trial started, 37 per cent reported they were binge drinking less often (up from 25 per cent at Wave 1).

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

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

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

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

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

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

·          Additionally, 39 per cent of participants with caring responsibilities reported that they had become more involved in their children’s homework and schooling, as compared to before the trial (up from 16 per cent at Wave 1).

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

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

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

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

 

General safeguards

 

The supplementary amendments to the Social Services Legislation Amendment (Cashless Debit Card Trial Expansion) Bill 2018 seeks to embed the provisions within the Social Security (Administration) (Trial of Cashless Welfare Arrangements) Determination 2018 into the primary legislation, whilst retaining existing policy parameters for the current cashless debit card sites of Ceduna, the East Kimberley and the Goldfields. This means there is greater parliamentary oversight over all existing and proposed cashless debit card sites.

 

A number of general safeguards that help to protect human rights have been incorporated into the operation of the cashless debit card. First, the rollout of the cashless debit card in existing and proposed locations was subject to an extensive community consultation process.

 

Secondly, the initial 12 month trial of the cashless Debit Card in Ceduna and the East Kimberley has been subject to an independent, comprehensive evaluation considering the impacts of limiting the amount of welfare funds that may contribute to community level harm. The expansion to a new site, to complement the existing sites, will also be monitored and continue to build on the evidence base established through a continuous data monitoring activity and ongoing engagement with the communities.

 

The Government has also announced a second evaluation of the cashless debit card across all three current trial sites, to assess the ongoing effectiveness of the program. The second evaluation will use research methodologies informed by the University of Queensland, and draw on the baseline measurements of social conditions in the Goldfields, developed by the University of Adelaide. 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 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. The amendment does not detract from the eligibility of a person to receive welfare, nor reduce the amount of a person’s social security entitlement.

 

It will not be appropriate for some persons to be trial participants, because their particular circumstances may make certain aspects of the cashless debit card impractical.  Persons who live outside the trial area during term time for the purposes of completing their course of study may find it impractical to use a cashless debit card outside the trial area. For example, they will not have access to the same support services as trial participants who live within the trial area. Such students will not be within the class of trial participants.

 

The class of trial participants will not include persons whose welfare payment is paid on a weekly basis or paid to particular kinds of payment nominee, including persons with a social security or family assistance payment nominee, or a person whose youth allowance payments are paid to their parent or guardian.

 

Some welfare recipients are subject to income management under Part 3B of the Act. A person who relocates to the Ceduna, East Kimberley or Goldfields trial sites may continue to be subject to income management for a certain period under the child protection measure (section 123UC of the Act), the disengaged youth or long-term welfare payment recipient measures (under section 123UCB or 123UCC of the Act) or Queensland Family Responsibilities Commission measure (section 123UF of the Act). Where this occurs, the person would not become a cashless debit card trial participant while they remain subject to income management. 

 

Lastly, for some persons, being a trial participant may seriously risk the person’s mental, physical or emotional wellbeing.  Where an officer of the Department of Social Services (being a delegate of the Secretary) is satisfied that being a trial participant is seriously risking a person’s mental, physical or emotional wellbeing, the officer must make an administrative decision resulting in that person no longer falling within the class of persons who are trial participants. 

 

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

 

Under the cashless debit card, a portion of social security payments received by a participant is placed into a restricted bank account. Funds held in this bank account cannot be withdrawn as cash, or used to purchase alcohol, gambling products. Businesses which sell alcohol and gambling products are able to service participants, where they have systems in place that do not allow the sale of restricted 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.

 

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

 

The Bill also includes amendments to enable purchases of restricted products to be blocked by a merchant, which is consistent with current processes but would reduce manual management of merchants who sell both restricted and un-restricted products. In doing so, the Bill also clarifies the restriction on ‘cash-like’ products, such as gift cards, vouchers, money orders, or digital currency, where these could be used to purchase alcohol and gambling products. A restriction on the purchase of these products is in line with existing restrictions on cash withdrawal in relation to the restricted bank account. Cash-like products that could not be used to obtain alcohol and gambling, such as a ‘closed loop’ gift card for a specific store, would not be restricted.

 

Given the objectives of the cashless debit card and the prevalence of social harm in the trial areas, 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 program limits the right to a private life. The program is targeted to communities where high levels of welfare dependence exist alongside high levels of social harm. This limitation on the right to a private life is directly related to the objectives of reducing such harm. This is because the limitations put in place restrict transactions at businesses selling goods that contribute to such harm.

 

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

 

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

 

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

 

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

 

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

 

The rights of equality and non-discrimination

 

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

 

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

 

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

 

Anyone residing in locations where the cashless debit card operates, and receiving a payment specified by instrument 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.

 

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

 

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

 

Noting the indirect impact the cashless debit card currently has on Aboriginal and Torres Strait Islander people, 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, the proportion of Indigenous participants across the four sites will be approximately 33 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 extension and expansion of the cashless debit card will not impact on or interfere with a person’s right to pursue freely their economic, social or cultural development. 

 

Under the cashless debit card, people are able to spend their restricted funds on any goods or services except alcohol, gambling and illegal drugs as a result of having less access to discretionary cash.  The Bill clarifies the restriction on ‘cash-like’ products, such as gift cards, vouchers, money orders or digital currency, where these could be used to purchase alcohol and gambling products, in line with the policy intent of the program. The limitation on these products and services ensures that vulnerable people are protected from abuse of these substances, and any associated harm and violence. Comprehensive community consultation was conducted in all locations to gauge community interest and support in the arrangements, including from local community leaders and stakeholders. 

 

The right to an adequate standard of living

 

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

 

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

 

The rights of children

 

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

 

Conclusion

 

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

 

To the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate to achieving the objectives of the welfare quarantining measures. The cashless debit card will assist to reduce immediate hardship and deprivation, reduce violence and harm, encourage socially responsible behaviour, and reduce the likelihood that welfare payment recipients will remain on welfare and out of the workforce for extended periods of time.

 

 

 

 

 

[Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP]