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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (REPEAL OF CASHLESS
DEBIT CARD AND OTHER MEASURES) BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Social Services, the Hon Amanda Rishworth MP)
AMENDMENTS TO THE SOCIAL SECURITY (ADMINISTRATION) AMENDMENT
(REPEAL OF CASHLESS DEBIT CARD AND OTHER MEASURES) BILL 2022
OUTLINE
These government amendments to the Social Security (Administration) Amendment
(Repeal of Cashless Debit Card and Other Measures) Bill 2022 (the Bill) respond to
matters arising from the Senate Community Affairs Legislation Committee's inquiry
into the Bill (the Senate Inquiry) and continuing consultations with stakeholders.
Many submitters to the Senate Inquiry supporting the abolition of the Cashless Debit
Card (CDC) raised specific concerns that the Bill created a framework under which the
Minister could unilaterally determine that CDC participants living in the Northern
Territory could be transitioned to the income management regime (IM) with a
BasicsCard after the CDC program is repealed. Concerns were specifically expressed
about the outdated technology of the BasicsCard, which is the basis of the IM, given
that these people have been supported with modern technology to this point.
Contemporary Card
The amendments respond to the concerns by ensuring that a person who was on the
CDC program and moves to IM will not return to outdated technology, which support
the BasicsCard, but will have a contemporary card with more modern functionality,
including accessing more merchants, allowing for BPAY and online shopping and
better supports money management. Individuals transitioning from CDC to IM will now
transition onto enhanced Income Management regime (enhanced IM) under new
Part 3AA of the Administration Act inserted in the Bill by these amendments.
Rather than return to the use of stored value cards, individuals will be provided with a
BasicsCard bank account that ensures a modern technological functionality. This
provides continuity and a consistent approach for participants in IM locations.
Participants on enhanced IM who have a BasicsCard bank account will receive
support from Services Australia, including all aspects of client interface such as
account enquiries and replacement cards. This is similar to the services provided by
Services Australia for the BasicsCard.
Transfer to IM in the Northern Territory
The amendments remove the Minister's power, via legislative instrument, to identify
class of persons in the Northern Territory to determine whether existing participants
on the CDC will return to IM. Instead, these amendments will confirm the
arrangements that people who would otherwise be eligible for IM in the Northern
Territory under the disengaged youth or long-term welfare payment recipient IM
measures will transition to enhanced IM on 6 March 2023.
There has been substantial concern that not transferring CDC participants living in the
Northern Territory to enhanced IM would be discriminatory to the existing IM
participants in the Northern Territory who decided to remain on IM when the CDC was
rolled out in the communities. This measure will ensure that a consistent and impartial
approach can be applied across the Northern Territory. The amendments will also
provide certainty to participants and communities on the future arrangements.
This will provide for consistency across the Northern Territory where approximately
23,000 individuals are currently subject to IM, compared to approximately 4,000 on
the CDC. While the long-term aim is to move towards a voluntary program,
consistency across the Northern Territory is important during the consultation and
transition process that will be required before the long-term approach can be settled.
Financial impact statement
The amendments will require the procurement and development of a card to support
the enhanced IM program. These costs are subject to commercial negotiations and
are not for publication.
Definitions
In this supplementary explanatory memorandum:
• Administration Act means the Social Security (Administration) Act 1999.
• Bill means the Social Security (Administration) Amendment (Repeal of
Cashless Debit Card and Other Measures) Bill 2022.
• CDC or CDC program means the cashless welfare arrangements established
by Part 3D of the Administration Act.
• enhanced IM means the enhanced income management regime to be
established under proposed Part 3AA of the Administration Act
• Family Assistance Act means the A New Tax System (Family Assistance) Act
1999.
• Family Assistance Administration Act means the A New Tax System (Family
Assistance) (Administration) Act 1999.
• IM means the income management regime established by Part 3B of the
Administration Act.
• National Emergency Declaration Act means the National Emergency
Declaration Act 2020.
• Part 3B payment nominee has the same meaning as in section 123TC of the
Administration Act.
• Secretary means the Secretary of the Department.
• Social Security Act means the Social Security Act 1991.
Amendment 1--Commencement of new Part 1A
Amendment 1 will insert a new table item 2A into the table in clause 2 of the Bill to
commence new Part 1A of Schedule 1 to the Bill (inserted by Amendment 15).
New Part 1A inserts into the Administration Act new arrangements for the enhanced
IM regime in the Northern Territory. New Part 1A will commence immediately after
Part 1 of Schedule 2 to the Bill commences, that is, immediately after the first moment
of the latter of 19 September 2022 and the day after the Act is given the Royal Assent.
Amendments 2 to 14--reversing exists from CDC and compulsory transition
from CDC to traditional IM under Part 3B in the Northern Territory
Amendments 2 to 14 are included to reverse certain provisions in the Bill which were
intended to allow for CDC program participants under section 124PGE (that is, whose
usual residence is, was or becomes the Northern Territory) to transition from CDC to
traditional IM.
Amendment 2 opposes items 2 to 6 of Schedule 1 to the Bill, which relate to the IM
child protection and vulnerable welfare payment recipient measures under,
respectively, sections 123UC and 123UCA of the Administration Act. These items
were included in the Bill to facilitate the transition of CDC program participants in the
Northern Territory under Part 3D of the Administration Act to the IM regime under
Part 3B of that Act. These items are no longer required because automatic transition
to the enhanced IM regime will be given effect under new Part 3AA. The transition to
enhanced IM responds to concerns raised by submitters to the Senate Inquiry that
individuals accustomed to the technological functionality of the CDC should not revert
to the standard BasicsCard.
Amendment 3 omits proposed subsection 123UCA(4) from item 7 of Schedule 1 to
the Bill relating to the IM vulnerable welfare payment recipients measure in Part 3B of
the Administration Act. Subsection 123UCA(4) is no longer required due to automatic
transition of CDC program participants residing in the Northern Territory to enhanced
IM under Part 3AA of the Administration Act. The Minister will therefore not need a
power to determine a class or classes of persons who will transition to the IM
vulnerable welfare payment recipient measure in section 123UCA of the
Administration Act.
Amendment 4 opposes items 8 to 10 of Schedule 1 to the Bill, which relate to the IM
disengaged youth measure under section 123UCB of the Administration Act. These
items were included in the Bill to facilitate the transition of CDC program participants
in the Northern Territory under Part 3D of the Administration Act to the IM regime under
Part 3B of that Act. These items are no longer required because automatic transition
to enhanced IM will be given effect under new Part 3AA. The transition to enhanced
IM responds to concerns raised by submitters to the Senate Inquiry that individuals
accustomed to the technological functionality of the CDC should not revert to the
standard BasicsCard.
Amendment 5 omits proposed subsection 123UCB(5) from item 11 of Schedule 1 to
the Bill relating to the disengaged youth IM measure in Part 3B of the
Administration Act. Subsection 123UCB(5) is no longer required due to the automatic
transition of CDC program participants residing in the Northern Territory to enhanced
IM under new Part 3AA of the Administration Act. The Minister will therefore not need
a power to determine a class or classes of persons who will transition under the
disengaged youth IM measure in section 123UCB of the Administration Act.
Amendment 6 opposes items 12 to 14 of Schedule 1 to the Bill, which relate to the
long-term welfare payment recipients IM measure in section 123UCC of the
Administration Act. These items were included in the Bill to facilitate the transition of
individuals residing in the Northern Territory who are CDC program participants under
Part 3D of the Administration Act to the IM regime under Part 3B of that Act. These
items are no longer required because the transition to enhanced IM will be given effect
under new Part 3AA. The transition to enhanced IM responds to concerns raised by
submitters to the Senate Inquiry that individuals accustomed to the technological
functionality of the CDC should not revert to the standard BasicsCard.
Amendment 7 omits proposed subsection 123UCC(5) from item 15 of Schedule 1 to
the Bill relating to the IM long-term welfare payment recipients measure in Part 3B of
the Administration Act. Subsection 123UCC(5) is no longer required due to the
automatic transition of CDC program participants residing in the Northern Territory to
enhanced IM under Part 3AA of the Administration Act. The Minister will therefore not
need a power to determine a class or classes of persons who will transition under the
IM long-term welfare payment recipients measure in section 123UCC of the
Administration Act.
Amendment 8 opposes item 16 of Schedule 1 to the Bill, which relates to the IM
school enrolment measure in section 123UD of the Administration Act. This item was
included in the Bill to facilitate the transition of individuals residing in the Northern
Territory who are CDC program participants under Part 3D of the Administration Act
to the IM regime under Part 3B of that Act. This item is no longer required because the
transition to enhanced IM will be given effect under new Part 3AA. The transition to
enhanced IM responds to concerns raised by submitters to the Senate Inquiry that
individuals accustomed to the technological functionality of the CDC should not revert
to the standard BasicsCard.
Amendment 9 omits proposed subsection 123UD(4A) from item 17 of Schedule 1 to
the Bill relating to the IM school enrolment measure in Part 3B of the
Administration Act. Subsection 123UD(4A) is no longer required due to the automatic
transition of CDC program participants who reside in the Northern Territory to
enhanced IM under Part 3AA of the Administration Act. The Minister will therefore not
need a power to determine a class or classes of persons who will transition under the
IM school enrolment measure in section 123UD of the Administration Act.
Amendment 10 opposes item 18 of Schedule 1 to the Bill, which relates to the IM
school attendance measure in section 123UE of the Administration Act. This item was
included in the Bill to facilitate the transition of individuals residing in the Northern
Territory who are CDC program participants under Part 3D of the Administration Act
to the IM regime under Part 3B of that Act. These items are no longer required because
the transition to enhanced IM will be given effect under new Part 3AA. The transition
to enhanced IM responds to concerns raised by submitters to the Senate Inquiry that
individuals accustomed to the technological functionality of the CDC should not revert
to the standard BasicsCard.
Amendment 11 omits proposed subsection 123UE(5) from item 19 of the Bill relating
to the IM school attendance measure in Part 3B of the Administration Act.
Subsection 123UE(5) is no longer required due to the automatic transition of CDC
program participants residing in the Northern Territory to enhanced IM under Part 3AA
of the Administration Act. The Minister will therefore not need a power to determine a
class or classes of persons who will transition under the IM school attendance
measure in section 123UE of the Administration Act.
Amendment 12 opposes item 27 of Schedule 1 to the Bill, which relates to the IM
other State/Territory referrals measures in section 123UFAA of the Administration Act.
This item was included in the Bill to facilitate the transition of individuals residing in the
Northern Territory who are CDC program participants under Part 3D of the
Administration Act to the IM regime under Part 3B of that Act. This item is no longer
required because the transition to enhanced IM will be given effect under new Part
3AA. The transition to enhanced IM responds to concerns raised by submitters to the
Senate Inquiry that individuals accustomed to the technological functionality of the
CDC should not revert to the standard BasicsCard.
Amendment 13 omits proposed subsection 123UFAA(3) from item 28 of the Bill
relating to the IM other State/Territory referrals measure in Part 3B of the
Administration Act. Subsection 123UFAA(3) is no longer required due to the automatic
transition of CDC program participants residing in the Northern Territory to enhanced
IM under Part 3AA of the Administration Act. The Minister will therefore not need a
power to determine a class or classes of persons who will transition under the IM other
State/Territory referrals measure in section 123UE of the Administration Act.
Amendment 14 opposes item 40 of Schedule 1 to the Bill, which adds new
subsections 124PGE(9) to (12) to allow CDC program participants under the Northern
Territory CDC measures to opt out of CDC by making an exit request to the Secretary
which, once made, cannot be withdrawn or revoked. Under the Bill, the Secretary
would be required to give a notice to the program participant to give effect to the exit
request no later than 7 days after the day on which the request was made. This item
is no longer needed as the Bill will provide that people who are CDC program
participants and reside in the Northern Territory will automatically transition to the
enhanced IM regime on 6 March 2023. This will ensure participants' transition between
programs is supported and seamless, and there is no gap in servicing.
Amendment 15--Stage 1A amendments relating to the Northern Territory
Amendment 15 will insert new Part 1A into the Bill dealing with Stage 1A
amendments. The Stage 1A amendments amend the National Emergency Declaration
Act and the Administration Act to reflect new Part 3AA dealing with enhanced IM to
certain persons whose usual place of residence is within the Northern Territory.
Amendments to the National Emergency Declaration Act
Amendment 15 inserts new item 48A to amend paragraph (zba) in the definition of
'national emergency law' in the Definitions section (section 10) of the National
Emergency Declaration Act. Amended paragraph (zba) will provide that new
section 123SM of the Administration Act (inserted by item 48B) is a national
emergency law for the purposes of the National Emergency Declaration Act.
The definition of 'national emergency law' is used in the National Emergency
Declaration Act as part of the tests for the Prime Minister to request a declaration of a
national emergency and to request the variation of a declaration to extend the duration
of an emergency. In addition, the definition provides an authoritative list of provisions
across the statute book that may be enlivened, or the operation of which may be
modified, while a national emergency is in force. The fact that a provision is listed in
the definition of national emergency law in the National Emergency Declaration Act
does not otherwise affect the interpretation or operation of the provision.
Section 123SM of the Administration Act deals with the splitting of certain welfare
payments into qualified and unqualified portions to ensure that expenditure of welfare
payments prioritises spending on basic human needs.
This amendment is necessary to operationalise new subparagraph 123SM(4)(a)(iii),
which allows the Secretary to vary, under subsection 123SM(3), the percentages of
the qualified portions and unqualified portions of payments in certain circumstances.
Relevantly, qualified percentages can be varied if the Secretary is satisfied that the
person is unable to use the person's debit card that is attached to the person's
BasicsCard bank account or is unable to access their BasicsCard bank account as a
direct result of a declared national emergency (where the applicable national
emergency declaration remains in force).
Amendments to the Administration Act
Amendment 15 also inserts new item 48B in Schedule 1 to the Bill to amend the
simplified outline in section 123SA of the Administration Act in recognition that a
person will become subject to the enhanced IM regime under new section 123SG
because among other things:
(a) the person meets the criteria relating to disengaged youth and the person's
usual place of residence is within the Northern Territory
(b) the person meets the criteria relating to long-term welfare payment
recipients and the person's usual place of residence is within the Northern
Territory.
Amendment 15 will also insert new item 48C in the Bill to include a range of new
definitions. Section 123SD will insert definitions for the following new terms:
balance of the qualified portion, of a category D welfare payment, means:
(a) if a deduction is to be made from, or an amount is to be set off against, the
payment under:
(i) section 61, 61A or 238 of this Act; or
(ii) section 1231 of the Social Security Act; or
(iii) section 84, 84A, 92, 92A, 225, 226, 227 or 228A of the Family
Assistance Administration Act;
the amount of the qualified portion of the payment less the amount of
the deduction or the amount of the set-off; or
(b) in any other case--the amount of the qualified portion of the payment.
This definition of 'balance of the qualified portion' is required to ensure that welfare
payments that are subject to splitting will only be split after deductions and set-offs are
given effect. The example below illustrates how the definition will work in practice.
EXAMPLE: Jay is subject to the enhanced IM regime and is entitled to category D
welfare payments totalling $1000 per fortnight. Jay has set up a Centrepay or RDS
deduction of $200 per fortnight for rent. Jay's qualified portion and unqualified portion
of the category D welfare payments are each 50% or $500 per fortnight.
After Jay's rent deduction, Services Australia will pay the balance of the qualified
portion of Jay's category D welfare payments--being an amount of $300--into Jay's
BasicsCard bank account while the remaining $500 will be paid into Jay's normal bank
account for discretionary spending.
The definition of 'category C welfare payment' will identify the type of welfare
payment that a person must receive in order to be subject to the enhanced IM regime.
The definition of 'category D welfare payment' will identify the types of welfare
payment that a person that will be subject to welfare quarantining under
section 123SG. If a payment is not mentioned, 100% of the payment will be paid in full
to the recipient.
The following definitions are included in section 123SD to provide pointers to specified
sections for their substantive meaning:
exempt welfare payment recipient, which is defined to have the same
meaning as in Part 3B. This term is defined in section 123TC of the
Administration Act as having the same meaning given by sections 123UGB,
123UGC or 123UGD of that Act.
qualified portion, of a category D welfare payment, which is defined to have
the meaning given by section 123SRA. This is discussed further below.
unqualified portion, of a category D welfare payment, which is defined to have
the meaning given by section 123SRA. This is discussed further below.
Persons subject to the enhanced IM regime--Northern Territory
Amendment 15 inserts a new item 48D into the Bill for the purpose of adding a new
section 123SD. This new section will set out the criteria for identifying who will become
subject to enhanced IM due to, among other things, having their usual place of
residence within the Northern Territory immediately prior to 6 March 2023. Two
measures corresponding to IM measures under Part 3B will be applicable to persons
residing in the Northern Territory who become subject to enhanced IM: disengaged
youth and long-term welfare payment recipients.
Disengaged youth
New subsection 123SD(1) deals with the situation where a person is subject to the
enhanced IM regime by virtue of being a 'disengaged youth', residing in the Northern
Territory and previously subject to the CDC program under Part 3D of the
Administration Act. These provisions are consistent with section 123UCB, which
provides the criteria for an individual to be subject to IM under the disengaged youth
measure in Part 3B of the Administration Act.
New subsection 123SD(1) provides that a person is subject to enhanced IM at a
particular time (the test time) on or after 6 March 2023 if:
(a) immediately before 6 March 2023:
(i) the person was a program participant under Part 3D of the Administration
Act; and
(ii) the person's usual place of residence was within the Northern Territory;
and
(b) at the test time, the person's usual place of residence is within the Northern
Territory; and
(c) at the test time, the person is an eligible recipient of a category C welfare
payment; and
(d) at the test time, the person is at least 15 years of age and under 25 years of
age; and
(e) at the test time, the person is not an exempt welfare payment recipient; and
(f) if, at the test time, the person has a Part 3B payment nominee-- that nominee
is subject to enhanced IM (under Part 3AA) or is subject to IM (under Part 3B);
and
(g) the person was an eligible recipient of a category C welfare payment for at least
13 weeks during the 26-week period ending immediately before the test time.
Subsection 123SD(2) provides that if a person is subject to enhanced IM under
subsection 123SD(1) and the person's usual place of residence ceases to be in the
Northern Territory, the person will remain subject to enhanced IM until the earliest of
any of the following occurrences:
(a) the person ceases to be an eligible recipient of a category C welfare payment;
or
(b) the person reaches 25 years of age; or
(c) the person becomes an exempt welfare payment recipient; or
(d) if the person has a Part 3B nominee--that nominee ceases to be subject to
enhanced IM (under Part 3AA) or IM (under Part 3B); or
(e) it has been 13 weeks from the day the person ceased to reside in the Northern
Territory.
Subsection 123SD(2) is consistent with IM in that the person will remain subject to
welfare quarantining for 13 weeks after they cease to be eligible for enhanced IM under
the substantive eligibility provision.
Long-term welfare payment recipients
New subsection 123SD(3) establishes the criteria for enhanced IM that apply when a
person is subject to the enhanced IM regime by virtue of being a 'long-term welfare
payment recipient', residing in the Northern Territory, and having previously been
subject to the CDC program under Part 3D of the Administration Act.
These provisions are consistent with section 123UCC, which provides the criteria for
a person to be subject to IM under the long-term welfare recipient measure in Part 3B
of the Administration Act.
The subsection provides that a person is subject to enhanced IM at a particular time
(the test time) on or after 6 March 2023 if:
(a) immediately before 6 March 2023:
(i) the person was a program participant under Part 3D of the Administration
Act; and
(ii) the person's usual place of residence was within the Northern Territory;
and
(b) at the test time, the person's usual place of residence is within the Northern
Territory; and
(c) at the test time, the person is an eligible recipient of a category C welfare
payment; and
(d) at the test time, the person is at least 25 years of age but has not reached
pension age; and
(e) at the test time, the person is not an exempt welfare payment recipient; and
(f) if, at the test time, the person has a Part 3B payment nominee--the nominee
is subject to enhanced IM (under Part 3AA) or is subject to IM (under
Part 3B); and
(g) the person was an eligible recipient of a category C welfare payment for at least
52 weeks during the 104-week period ending immediately before the test time.
Subsection 123SD(4) provides that if a person is subject to the enhanced IM under
subsection 123SD(3), but the person's usual place of residence is no longer in the
Northern Territory, the person will remain subject to enhanced IM until the earliest of
the following occurrences:
(a) the person ceases to be an eligible recipient of a category C welfare payment;
or
(b) the person reaches pension age; or
(c) the person becomes an exempt welfare payment recipient; or
(d) if the person has a Part 3B nominee--that nominee ceases to be subject to
enhanced IM (under Part 3AA) or IM (under Part 3B); or
(e) it has been 13 weeks since the day the person ceased to reside in the Northern
Territory.
Subsection 123SD(4) is consistent with IM in that the person will remain subject to
welfare quarantining for 13 weeks after they cease to be eligible funder the substantive
provision.
Amendment 15 also inserts item 48E in the Bill. This item will establish new
Subdivision B--Persons subject to the enhanced IM regime--Northern Territory in
Division 3 of Part 3AA of the Administration Act to provide for welfare splitting
percentages and the use of qualified portions and unqualified portions.
New section 123SM provides for the qualified and unqualified portion percentages that
apply if an instalment of a category D welfare payment is payable to a person who is
subject to enhanced IM due to, among other things, having their usual place of
residence within Northern Territory at the test time.
New subsection 123SM(1) provides that if an instalment of a category D welfare
payment is payable to a person who is subject to the enhanced income management
regime under new section 123SRA :
• the percentage of the gross amount of the qualified portion, is 50%; and
• the percentage of the gross amount of the unqualified portion is 50%.
There is a note at the end of subsection 123SM(1) to inform the reader that the
qualified and unqualified portion percentages may be varied under subsection (3).
Subsection 123SM(2) provides that if a category D welfare payment is payable,
otherwise than by instalments, to a person who is subject to the enhanced income
management regime under section 123SD, 100% of the gross amount of the payment
is qualified (the qualified portion).
There is a note at the end of subsection 123SM(2) to inform the reader that the
qualified and unqualified portion percentages may be varied under subsection (3).
Variation of qualified portion and unqualified portion by Secretary
Subsection 123SM(3) provides that the Secretary has a discretionary power to
determine that a volunteer to the enhanced IM may be subject to different
apportionment percentages. In particular, the Secretary can vary the qualified portion
applicable to volunteers in the following way:
• category D welfare payments paid by instalment can be varied so that the
qualified portion is 0% and the unqualified portion is 100%
• category D welfare payments paid by lump sum can be varied so that the
qualified portion is 0%.
Subsection 123SM(3) does not give the Secretary discretion to vary the set
percentages. This means that the Secretary is not able to increase the qualified portion
of a payment.
Subsection 123SM(4) provides that the Secretary may only vary the percentages the
qualified and unqualified portions under subsection 123SM(3) in specified
circumstances. These circumstances are that:
(a) the Secretary is satisfied that the person is unable to use the person's debit
card which is attached to the person's BasicsCard bank account or is unable to
access their BasicsCard bank account, as a direct result of:
(i) a technological fault or malfunction with that card or account; or
(ii) a natural disaster; or
(iii) if a national emergency declaration (within the meaning of the National
Emergency Declaration Act) is in force--an emergency to which the
declaration relates; or
(b) the person's category D welfare payment is payable in instalments and the
Secretary is satisfied that any part of the payment is payable:
(i) at a time determined under subsection 43(2) of the Administration Act,
where that determination is made because the person is in severe
financial hardship as a result of exceptional and unforeseen
circumstances; or
(ii) under a determination under subsection 51(1) of the Administration Act
relating to advance payments in cases of severe financial hardship.
Subsection 123SM(5) provides that a determination under subsection 123SM(3) will
take effect on the date specified in the determination. This must not be earlier than the
day on which the determination is made. This provides certainty to the welfare
recipient and the administering agency.
To avoid doubt, subsection 123SM(6) confirms that a notice given under
subsection 123SM(3) is not a legislative instrument. This provision is merely
declaratory of the law and does not provide a substantive exemption to the
Legislation Act 2003.
Payment of the balance of qualified portion of category D welfare payment
New section 123SN provides for the manner of payment of a qualified portion, where
an instalment of a category D welfare payment is payable to a person who is subject
to enhanced IM under section 123SD. The Secretary must pay the balance of the
qualified portion of the category D welfare payment to the credit of a BasicsCard bank
account maintained by the recipient.
Recipient's use of funds from category D welfare payment
New section 123SO establishes that a person who is subject to enhanced IM under
section 123SD and has an amount of welfare payment remaining after deductions and
set-offs, may use the balance of their qualified portion to obtain goods or services
(other than excluded goods or excluded services or a cash-like product that could be
used to obtain excluded goods or excluded services) and the unqualified portion at the
person's discretion.
Excluded goods and excluded services have the same meaning as Part 3B of the
Administration Act and are therefore consistent with the IM regime. Excluded goods
are alcoholic beverages, tobacco products, pornographic material and goods specified
in a legislative instrument made by the Minister. Excluded services are gambling or a
service specified in a legislative instrument made by the Minister.
Amendment 15 also insets items 48F and 48G that amend paragraphs in the
Administration Act dealing with review processes.
New items 48F and 48G will, respectively, amend paragraphs 127(4)(ad) and 144(lc)
to omit the phrase ', 124PGC(9) or 124PGE(10)' and substitute it with the words
'or 124PGC(9)'. These amendments are consequential to Amendment 14, which opposes
item 40 of Schedule 1 to the Bill. Due to item 40 being opposed, CDC program participants
under the Northern Territory measure (section 124PGE of the Administration Act) will not be
able to request to exit CDC. The Secretary's power to issue notices to individuals requesting
exit CDC under subsection 124PGE(10) in item 40 is also opposed. With the removal from the
Bill of the proposed power to issue opt-out exit notices, these consequential amendments to
internal and Administrative Appeals Tribunal review are required.
Amendment 16 opposes item 63 of Schedule 1 to the Bill, which amended several
sections that would have had the effect of preventing voluntary exits from CDC for
some classes of persons in the Northern Territory before the latter of
19 September 2022 and the day after the day the Act is given the Royal Assent.
Under item 63, paragraphs 123UCA(1)(f), 123UCB(1)(h), 123UCCC(1)(h),
123UC(1)(ha), 123UE(1)(ka) and 123JFAA(1)(h) were to be amended to omit the
phrase 'and on or after that day the person has ceased to be a program participant
under that section' to reflect the repeal of Part 3D of the Act. These paragraphs,
respectively, related to the following IM measures under Part 3B: vulnerable welfare
payment recipients; disengaged youth; long-term welfare payment recipients;
school enrolment; school attendance; and State/Territory referrals.
Item 63 is no longer needed because it relates to the following items of the Bill which
are also opposed by these amendments: item 4 (for paragraph 123UCA(1)(f) see
Amendment 2), item 8 (for paragraph 123UCB(1)(h) see Amendment 4), item 12 (for
paragraph 123UCC(1)(h) see Amendment 6), item 16 (for paragraph 123UCD(1)(h)
see Amendment 8), item 18 (for paragraph 123UE(1)(ka) see Amendment 10) and
item 27 (for paragraph 123UFAA(1)(h) see Amendment 12).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (REPEAL OF CASHLESS
DEBIT CARD AND OTHER MEASUERS) ACT 2022
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.
The Bill delivers the Australian government's election commitment to abolish the
Cashless Debit Card (CDC). The Bill will also facilitate a transition to the new
enhanced Income Management (IM) arrangements in certain cases. This Statement
of Compatibility with Human Rights addresses the Bill amendments that establish
enhanced IM in the Northern Territory.
Human rights implications
This Bill and the amendments engage the following rights:
• the rights of equality and non-discrimination
• the right to self-determination
• the right to an adequate standard of living, including food, water and housing
• the right to social security.
These rights and a number of other considerations are addressed in turn below.
General safeguards
A number of general safeguards that will help to protect human rights have been
incorporated into the proposal to abolish the CDC program and reform IM.
The amendments will ensure a person who was on the CDC and is transitioned to
enhanced IM will not move back onto the BasicsCard, but will have a contemporary
card that ensures a modern functionality.
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).
The right to equality and non-discrimination is not directly limited by enhanced IM
arrangements, as the enhanced IM regime has not been applied on the basis of race
or cultural factors. Enhanced IM arrangements for people whose usual residence is in
the Northern Territory are based on objective criteria related to disengaged youth and
long term welfare payment recipients. However, the arrangements may apply to a high
proportion of First Nations people.
It is appropriate to transition CDC participants residing in the Northern Territory to
enhanced IM as this will allow the cessation of the CDC program consistently with the
needs of different welfare recipients in the Northern Territory (where approximately
23,000 individuals are currently subject to IM compared to approximately 4,000 IM
participants who have chosen to move onto the CDC). There is a substantial concern
that not transferring CDC participants who reside in the Northern Territory to enhanced
IM would be discriminatory to the existing IM participants in the Northern Territory who
remained on IM when the CDC was rolled out. The amendments will ensure that a
consistent and impartial approach can be applied across the Northern Territory
regardless of race or cultural factors.
The right to self-determination
Article 1 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) states that all people have the right of self-determination, which includes
the right to 'freely pursue their economic, social and cultural development'.
Under the enhanced IM regime, participants will be able to spend the qualified
(quarantined) portion of their payment only on goods or services that will meet their
priority needs. This excludes expenditure on alcohol, gambling, tobacco, pornographic
material and cash-like products that could be used to purchase those excluded goods
and services.
To an extent, the Bill limits the human right of self-determination as it may impact on
a person's ability to freely determine their economic or social development. However,
by ensuring an individual's welfare payments are directed at priority needs, the
amendments ensure the enhanced IM regime will address and curtail passive welfare,
antisocial behaviour and entrenched disadvantage to positive social expectations. The
qualified and unqualified portions for welfare restrictions are reduced by the Bill from
80% and 20% to 50% and 50%.
The right to an adequate standard of living, including food, water and housing
Article 11(1) of the ICESCR states that everyone has the right to an adequate standard
of living, including adequate food, clothing and housing, and the continuous
improvement of living conditions. Further to this, article 11(2) of the ICESCR states
that the fundamental right of everyone to be free from hunger should be recognised.
Those who transfer from CDC to enhanced IM in the Northern Territory will still have
their rights to an adequate standard of living, including food, water and housing
maintained. The only limits placed on those who transition will be in relation to
excluded goods and services (i.e. alcohol, gambling, tobacco and pornographic
material) or cash-like products that could be used to obtain excluded goods and
services. This is critical to realising the objective of the enhanced IM program, which
is to ensure welfare payments are directed towards priority goods and services, such
as housing, food and bills.
The right to social security
Article 9 of the ICESCR recognises the right of everyone to social security.
In accordance with Article 4 of the ICESCR, the State may limit this right only insofar
as such limitations may be compatible with the nature of these rights and solely for the
purpose of 'promoting the general welfare in a democratic society'.
The right to social security is limited only to the extent that CDC program participants
residing in the Northern Territory who transition to enhanced IM may not use their
payment to purchase excluded goods and services or cash-like products in areas
where there has been demonstrated high levels of adverse behaviours or community
harm. The amendments made by this Bill do not detract from the eligibility of a person
to receive welfare or reduce the amount of a person's social security entitlement.
Rather, by transitioning eligible individuals residing in the Northern Territory to the
enhanced IM program, the amendments provide a mechanism to ensure that
recipients of social security entitlements use a percentage of their payment to acquire
essential items. To the extent that the right to social security may be limited, the
limitations are reasonable, necessary and proportionate to prioritise basic living needs.
Further, the measures proposed are 'promoting the general welfare' of people through
the prioritisation of their expenditures.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate as they are
targeted towards addressing and curtailing passive welfare, antisocial behaviour and
entrenched disadvantage. The measures are reasonable, necessary and
proportionate to achieving the objectives of abolishing the CDC program and reforming
the IM regime in Australia, and are an essential element of the Government's election
commitment to support First Nations people to make their own decisions about the
way forward.
[Circulated by the authority of the Minister for Social Services,
the Hon Amanda Rishworth MP]
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