Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016 - 2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SERVICES LEGISLATION AMENDMENT
(CASHLESS DEBIT CARD) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Human Services, the Hon Alan Tudge MP)
SOCIAL SERVICES LEGISLATION AMENDMENT
(CASHLESS DEBIT CARD) BILL 2017
OUTLINE
This Bill removes section 124PF of the Social Security (Administration) Act 1999,
which specifies that the cashless debit card trial will occur in up to three discrete
locations, include no more than 10,000 people, and will end on 30 June 2018.
Removing this section will support the extension of arrangements in current sites,
and enable the expansion of the cashless debit card to further sites. Individual sites,
once identified, will be determined by disallowable legislative instruments.
Schedule 1 - Amendments
In the 2017-18 Budget, it was announced that cashless debit card arrangements
would be extended in the current sites of Ceduna, in South Australia, and the East
Kimberley, in Western Australia; and that the program would be expanded to new
locations (to be determined).
Currently, the cashless debit card trial is limited by section 124PF of the Social
Security (Administration) Act 1999 which specifies that the trial is to end on 30 June
2018, occur in up to three discrete trial areas and include no more than 10,000 trial
participants. This Bill repeals this provision, removing these limitations and providing
more flexibility for expansion.
This amendment does not remove the legislative safeguards protecting how, when
and where the cashless debit card can operate. The legislation continues to ensure
that the program can only be implemented in a location with the introduction of a
disallowable instrument. These instruments can also specify other parameters,
including sunset dates and participant criteria. This provides the opportunity for the
Government to co-design these parameters with interested communities, and tailor
the program to meet community needs. It also allows those communities to make
decisions about these arrangements in their own time.
These safeguards ensure that Parliament retains the right to consider each proposed
application of the cashless debit card. Instead of passing legislative amendments, for
hypothetical communities and participants, Parliament can accept or reject new sites
by considering the impacts and level of community support for the measure on a
case by case basis.
Financial impact statement
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES
Schedule 1-- Amendments The funding associated with this Schedule is not for
publication as negotiations with potential
commercial providers are yet to be finalised.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
3
SOCIAL SERVICES LEGISLATION AMENDMENT
(CASHLESS DEBIT CARD) BILL 2017
NOTES ON CLAUSES
Clause 1 sets out how the new Act is to be cited - that is, as the Social
Services Legislation Amendment (Cashless Debit Card) Act 2017.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedules to, the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
4
Schedule 1 - Amendments
Schedule 1 - Amendments
Summary
This Schedule removes section 124PF of the Social Security (Administration) Act
1999, which specifies that the cashless debit card trial will occur in up to three
discrete locations, include no more than 10,000 people, and will end on
30 June 2018. Removing this section will support the extension of arrangements in
current sites, and enable the expansion of the cashless debit card to further sites.
Individual sites, once identified, will be determined by disallowable legislative
instruments.
The measure will commence the day after the Act receives Royal Assent.
Explanation of the changes
Social Security (Administration) Act 1999
Item 2 repeals current section 124PF. Item 1 makes a consequential amendment to
the heading of Subdivision A of Division 2 of part 3D, substituting a heading referring
to 'Trial participants'. The only remaining section in that Subdivision is
section 124PG, which sets out who are trial participants.
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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
(CASHLESS DEBIT CARD) BILL 2017
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
In the 2017-18 Budget, it was announced that Cashless Debit Card arrangements
would be extended for a further year in the current sites of Ceduna, in
South Australia, and the East Kimberley, in Western Australia; and that the program
would be expanded to new locations (to be determined).
Currently, the trial is limited by section 124PF of the Social Security (Administration)
Act 1999, which specifies that the trial is to end on 30 June 2018, occur in up to
three discrete trial areas and include no more than 10,000 trial participants. This Bill
repeals this provision, removing these limitations and providing more flexibility for
expansion.
This amendment does not remove the legislative safeguards protecting how, when
and where the cashless debit card can operate. The legislation continues to ensure
that the program cannot be implemented in any location without the introduction of a
disallowable instrument. These instruments can also specify other parameters,
including sunset dates and participant criteria. This provides the opportunity for the
Government to co-design these parameters with interested communities, and tailor
the program to meet community needs. It also allows those communities to make
decisions about these arrangements in their own time.
These safeguards ensure that Parliament retains the right to consider each proposed
application of the cashless debit card. Instead of passing legislative amendments, for
hypothetical communities and participants, Parliament can accept or reject new sites
by considering the impacts and level of community support for the measure on a
case by case basis.
Human rights implications
The Parliamentary Joint Committee on Human Rights conducted a review of the
Social Security Legislation Amendment (Debit Card Trial) Bill 2015, 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.
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Statement of compatibility with human rights
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
Region; and
(c) determine whether such arrangements are more effective when community
bodies are involved; and
(d) encourage socially responsible behavior.
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 be subject to harassment and abuse in relation to their welfare payments.
In both Ceduna and the Surrounding Region, and the East Kimberley, there is clear
evidence of the harm caused by alcohol in the community.
In Ceduna and the Surrounding Region the deaths of six Aboriginal people related to
alcohol abuse and sleeping rough were the subject of a coronial inquest in 2011.
In March 2013, the Ceduna Sobering Up Unit had 89.7 per cent occupancy, and
breath testing figures that recorded the maximum measurable amount.i
In a submission to the Senate Standing Committee on Community Affairs, the Mayor
of Ceduna, Mr Alan Suter, provided an unsigned affidavit stating that in his role, he
has participated in various initiatives to assist with the problems caused by alcohol
abuse in Ceduna. Mr Suter stated that the most effective attempt 'was a restriction
of sales ... . [which] reduced the availability of take away alcohol and helped
considerably until it was withdrawn by the licensees.'ii
As well as alcohol, illegal drug abuse and gambling are also causing unacceptable
levels of harm in Ceduna and the Surrounding Region.
Ceduna and the Surrounding Region has a high level of welfare dependence, and,
importantly, there is an openness to participate in the Cashless Debit Card trial from
within the community.
In a submission to the Senate Standing Committee on Community Affairs, the
Executive Chairman of the Wunan Foundation, Mr Ian Trust stated that 'the East
Kimberley experiences ... high levels of social dysfunction, including widespread
alcohol and drug abuse ... Chronic substance abuse in the region has led to a raft of
catastrophic social outcomes'.iii The Committee heard high levels of social
dysfunction in the East Kimberley, including widespread drug and alcohol abuse, has
resulted in:
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Statement of compatibility with human rights
high rates of family violence (in 2012-13, there were 100 reported incidents of
family violence per 1000 people in the East Kimberley, compared to the next
highest figure of 43 incidents per 1000 people in the south-eastern region of
WA);
high rates of child abuse and neglect:
large numbers of children spending their nights on the street rather than
returning to unsafe homes;
increasing rates of Foetal Alcohol Spectrum Disorder;
high rates of suicide (the rate of suicide in the Kimberley is 70 per 100 000
people, compared to the national rate of 11 per 100 000 people); and
high rates of alcohol-fuelled violence (the hospitalisation rate for assault in
Kununurra is significantly higher than the national average due to
alcohol-fuelled violence).iv
In the East Kimberley, according to WA Police data, in 2013-14 in Western Australia
there were 1,456 offences against the person for every 100,000 people.
The Kimberley region had offence rates against the person 4.5 times that of Western
Australia overall.v
In March 2017, ORIMA Research released the Wave 1 Interim Evaluation Report on
the Cashless Debit Card Trial (the Report).vi The Report provided quantitative and
qualitative analysis measured against predetermined key performance indicators and
objectives of the trial. The Report indicates the trial is having positive early impacts in
relation to alcohol consumption, illegal drug use, and gambling in the trial regions.
The evaluation has found that on average:
Of trial participants surveyed who reported that they do drink alcohol, 25 per
cent of participants and 13 per cent of family members reported drinking
alcohol less frequently, while 25 per cent of participants reported engaging in
binge drinking less frequently.
Of trial participants surveyed who reported they do gamble, 32 per cent of
participants and 15 per cent of family members reported gambling less.
Of trial participants surveyed who reported using illegal drugs before the trial
commenced, 24 per cent reported using illegal drugs less often.
Of the trial participants surveyed, 31 per cent said they were better able to
look after their children.
While the Final Wave 2 report is yet to be finalised by ORIMA Research, early
indications are that the next stage of the report will continue to demonstrate positive
results in both Ceduna and the East Kimberley.
The expansion of the Cashless Debit Card to two new sites will build on these
positive findings, and offer an opportunity to continue to test the card's effectiveness
in different settings and on a larger scale.
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Statement of compatibility with human rights
The two new locations for the Cashless Debit Card will be selected based on several
factors, including community readiness and willingness, high levels of disadvantage
and welfare dependence, and high levels of social harm driven by alcohol, drugs and
gambling. Priority will be given to including communities with lower Indigenous
populations than the existing sites.
General safeguards
A number of general safeguards that help to protect human rights have been
incorporated into the operation of the Cashless Debit Card. First, the roll out of the
Cashless Debit Card in existing locations was subject to an extensive community
consultation process. Details of this process in Ceduna and the East Kimberley are
provided in the Explanatory Statements accompanying each Trial Area
Determination.vii Similar consultation will be conducted in new sites, and detailed in
the relevant instruments.
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 extension of current arrangements, and expansion to
new sites will also be monitored and continue to build on the evidence base
established through the formal evaluation.
Finally, although the legislated limitations on trial parameters are removed by this
Bill, site selection, participant criteria and duration will continue to be subject to the
tabling of disallowable instruments. This allows for parliamentary scrutiny of how the
Cashless Debit Card will be applied and impact each proposed community.
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'.
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 spent at businesses which sell alcohol and
gambling products. This limitation is necessary to ensure that these products cannot
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Statement of compatibility with human rights
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 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. To further support
participants, there are Local Partners in the current sites who assist with things such
as a replacement cards and account balance checking. There are also two hotline
services operated by the card provider and the Department of Social Services. Given
the objectives of the Cashless Debit Card and the prevalence of social harm in
chosen locations, any limitation on the right to social security is reasonable and
proportionate.
The right to a private life
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
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Statement of compatibility with human rights
participants from purchasing these 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 right to privacy
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 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 '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)).
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Statement of compatibility with human rights
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. New
locations for the program will be chosen based on objective criteria, similar to the
criteria used to choose the existing sites. 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, will become a participant. The program is
therefore not targeted at people of a particular race, but to welfare recipients who
meet particular criteria. People will also be able to volunteer for the program.
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, in identifying new sites, priority will be given to
including communities with lower Aboriginal and Torres Strait Islander populations.
Where communities do have high Aboriginal and Torres Strait Islander populations,
the support of key Aboriginal and Torres Strait Islander leaders will 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.
7
Statement of compatibility with human rights
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. This limitation ensures that vulnerable
people are protected from abuse of these substances, and any associated harm and
violence. Comprehensive community consultation will be conducted before the
Cashless Debit Card commences in new communities to gauge community interest
and support in the arrangements, including from local community leaders.
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, 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 be subject to
harassment and abuse in relation to their welfare payments.
8
Statement of compatibility with human rights
[Circulated by the authority of the Minister for Human Services,
the Hon Alan Tudge MP]
i
Submission to the Senate Standing Committee on Community Affairs inquiry to the Social Services Legislation
Amendment (Debit Card Trial) Bill 2015, District Council of Ceduna, Annexure 1, p. 3.
ii
Submission to the Senate Standing Committee on Community Affairs inquiry to the Social Services Legislation
Amendment (Debit Card Trial) Bill 2015, District Council of Ceduna, Annexure 3, p. 2.
iii
Submission 10 to the Senate Standing Committee on Community Affairs inquiry to the Social Services
Legislation Amendment (Debit Card Trial) Bill 2015, Wunan Foundation, p. 1.
iv
Submission 10 to the Senate Standing Committee on Community Affairs inquiry to the Social Services
Legislation Amendment (Debit Card Trial) Bill 2015, Wunan Foundation.
v
from data published at - http://www.police.wa.gov.au/Aboutus/Statistics/Crimestatistics/tabid/1219/Default.aspx.
Orima Research, 'Wave 1 Interim Evaluation Report on the Cashless Debit Card Trial Evaluation' (February
vi
2017).
Social Security (Administration) (Trial Area -- East Kimberley) Determination 2016, Explanatory Statement;
vii
Social Security (Administration) (Trial Area -- Ceduna and Surrounding Region) Determination 2015,
Explanatory Statement.
9