Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT
(CONTINUATION OF CASHLESS WELFARE) BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Families and Social Services, Senator the Hon Anne Ruston)
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT
(CONTINUATION OF CASHLESS WELFARE) BILL 2020
OUTLINE
These amendments:
Add a sunset date so that Part 3D of the Social Security
(Administration) Act 1999 (the Social Security Administration Act)
ceases to have effect at the end of 31 December 2022; and
Ensure that a person in the Northern Territory who chooses to
transition from Income Management to the Cashless Debit Card
provisions in Part 3D is not excluded from becoming eligible for Income
Management after the cessation of Part 3D.
Financial impact statement
The financial impact of these amendments are not for publication.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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SOCIAL SECURITY (ADMINISTRATION) AMENDMENT
(CONTINUATION OF CASHLESS WELFARE) BILL 2020
NOTES ON AMENDMENTS
Amendment 1 omits item 16 and substitutes it with new section 124PF 'Sunset
provision'. Subsection 124PF(1) provides that Part 3D of the Social Security
Administration Act (relating to cashless welfare arrangements) ceases to have effect
at the end of 31 December 2022.
Subsection 124PF(2) provides the Minister with a discretion, at any time before
1 July 2023 to make rules, by legislative instrument, prescribing matters of a
transitional nature (including prescribing any saving or application provisions)
relating to the cessation of Part 3D. This power will enable the making of rules to
support ceasing program participants with administrative matters such as the
transfer of money out of a program participant's welfare restricted bank account and
closures of accounts upon cessation.
Subsection 124PF(3) clarifies that the rules must not provide for the crediting of
amounts to the welfare restricted bank account after 31 December 2022. This
subsection is included for the avoidance of doubt.
Subsection 124PF(4) provides that rules made under subsection 124PF(2), may
make provision for and in relation to a person who was a program participant under
section 124PGE immediately before that cessation, becoming subject to the income
management regime under Part 3B on or after 1 January 2023. This allows for rules
to be made ensuring sufficient support for people in the Northern Territory who have
chosen to transition from Income Management to the Cashless Debit Card and who
would therefore return to Income Management arrangements upon the cessation of
the provisions relating to the Cashless Debit Card in Part 3D of the Social Security
Administration Act.
Subsection 124PF(5) provides that the rules may not:
(a) create an offence or civil penalty;
(b) provide powers of (i) arrest or detention or (ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under
an appropriation in this Act; or
(e) directly amend the text of this Act.
As a legislative instrument, any rules made by the Minister under this provision will
be subject to a disallowance period before the Parliament.
It is necessary to have a power to make rules, rather than having transitional matters
set out in the Social Security Administration Act, because it is not possible to
anticipate, at this time, all transitional issues that may need to be addressed for a
transition on 31 December 2022.
2
Amendment 2 adds at the end of subsection 124UP(4) in item 52 of the Bill, 'and
before 1 January 2023'. This amendment ensures that a person who has
transitioned to the Cashless Debit Card program under section 124PGE cannot
become subject to Income Management in the Northern Territory again before 1
January 2023.
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Statement of compatibility with human rights
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 (CONTINUATION
OF CASHLESS WELFARE) BILL 2020
These amendments are 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 provides for transition of from Income Management to the Cashless
Debit Card in the Cape York region, the transition of Income Management
participants in the Northern Territory where they choose to transition to the
Cashless Debit Card, and establishes the Cashless Debit Card as an ongoing
measure, with a two year legislated end date.
These amendments add a sunset date so that Part 3D of the Social Security
(Administration) Act 1999 (the Social Security Administration Act) ceases to
have effect at the end of 31 December 2022.
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) support program participants and voluntary participants with their
budgeting strategies; and
(c) encourage socially responsible behaviour.
In other words, the Cashless Debit Card program has the objective of
reducing immediate hardship and deprivation, reducing violence and harm,
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Statement of compatibility with human rights
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 program 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. 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.
Establishing the Cashless Debit Card as an ongoing measure, with a sunset
date of 31 December 2022, allows these communities to continue
experiencing positive outcomes and a reduction in the social harm caused by
alcohol, drug and gambling misuse.
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Statement of compatibility with human rights
General safeguards
The Cashless Debit Card program 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.
Firstly, the rollout of the Cashless Debit Card has been and continues to be
the subject of an extensive community consultation and engagement process.
Secondly, evaluations show that the Cashless Debit Card is working, with a
range of evidence showing the program has had a positive impact for
participants and communities.
The purpose of the Cashless Debit Card evaluations is to further develop the
evidence base, to better understanding what works, for whom, and in what
context so that continued improvements can be made to the Cashless Debit
Card program.
Various reviews of the trial have been completed to date, including a first
impact evaluation into the Ceduna and East Kimberly sites, and a baseline
data collection in the Goldfields region.
Future evaluation and data monitoring activities will further strengthen the
evidence base and guarantee that participants, their families and the wider
community continue to receive ongoing support.
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 program 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 Cashless Debit Card communities, support from
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Statement of compatibility with human rights
leaders is driven by the view that the program 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 establishes the Cashless Debit Card as an
ongoing program in existing sites, and transitions existing Income
Management sites in the Cape York region and Northern Territory, with a
sunset date of 31 December 2022.
Under the Cashless Debit Card program, 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.
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 Services Australia to provide technical and practical support
for participants.
Given the objectives of the Cashless Debit Card program, 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 program on the right to a private life and privacy has
previously been raised.
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Statement of compatibility with human rights
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 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.
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 program 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
program. As a result, there are still safeguards in place to protect individual
privacy. Any information collected by 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 program to achieve a
legitimate objective and are necessary for the program 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 program 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
program could not proceed.
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Statement of compatibility with human rights
Proposed section 124POA of the Bill establishes information disclosure
provisions for the disclosure of information. The purpose of disclosures by the
Secretary under this provision is to ensure that the Cashless Debit Card
program 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 program
operates, receiving a payment and being of a certain age as specified by
instrument or legislation, will become a Cashless Debit Card program
participant. The Cashless Debit Card program 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.
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Statement of compatibility with human rights
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 provides the same information-gathering purpose and requiring
program 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 program.
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 program 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.
Items 43 and 46 of the Bill also provide 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 program participant or
voluntary participant) is shared between the Secretary and community bodies.
The limitations discussed above are reasonable, necessary and proportionate
to achieving the objectives of the Cashless Debit Card program as they
enable the Secretary to ascertain the fact regarding the circumstances of
program participants. By modifying the application of the privilege against
self-incrimination, the Bill ensures that it is the public interest to ensure the
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Statement of compatibility with human rights
effective functioning of the Cashless Debit Card program and support
participants 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 program, people are able to spend their
restricted funds on any goods or services except alcohol, gambling and illicit
drugs due to having less access to discretionary cash. The limitation on these
products and services ensures that vulnerable people are protected from
abuse of these substances, and any associated harm and violence.
The Cashless Debit Card becoming an ongoing measure 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 program does not limit the right to an adequate
standard of living for affected people. Under the Cashless Debit Card
program, 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 program 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
2
Statement of compatibility with human rights
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.
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 program 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. Establishing the Cashless Debit
Card as an ongoing measure, with a sunset date of 31 December 2022, 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
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