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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (CASHLESS WELFARE)
BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families and Social Services, Senator the Hon Anne Ruston)
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (CASHLESS WELFARE)
BILL 2019
OUTLINE
The Bill allows the Secretary of the Department of Social Services (DSS) to be the
decision maker for all Cashless Debit Card (CDC) exit applications and broadens the
criteria for the exit provisions to allow the Secretary to take into account a person's
ability to manage their affairs generally, including their financial affairs. Further, the
Bill clarifies that exit applications need to be made in a form that is approved by the
Secretary and expands the wellbeing exemption provisions so they apply more
broadly across all regions.
FINANCIAL IMPACT STATEMENT
This Bill has nil financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statements of compatibility with human rights appears at the end of this
explanatory memorandum.
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SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (CASHLESS WELFARE)
BILL 2019
NOTES ON CLAUSES
Abbreviations and Acronyms used in this explanatory memorandum
Social Security Administration Act means the Social Security
(Administration) Act 1999;
Clause 1 sets out how the new Act is to be cited - that is, as the Social Security
(Administration) Amendment (Cashless Welfare) Act 2019.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedules to, the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule to the Bill has
effect according to its terms.
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Schedule 1 - Amendments
Summary
This Schedule allows the Secretary of DSS to be the decision maker for all CDC exit
applications and broadens the criteria for the exit provisions to allow the Secretary to
take into account a person's ability to manage their affairs generally, including their
financial affairs. Further, the Schedule clarifies that exit applications need to be
made in a form that is approved by the Secretary and expands the wellbeing
exemption provisions so they apply more broadly across all regions.
Background
Under section 124PHA of the Social Security Administration Act, as inserted by the
Social Security (Administration) Amendment (Income Management and Cashless
Welfare) Act 2019 (the Income Management and Cashless Welfare Act), a CDC
participant may apply on or after 1 July 2019 to exit the CDC trial if they can
demonstrate reasonable and responsible management of their financial affairs.
Applications may be made to a community body if the CDC participant resides in an
area where a body is established; or to the Secretary of DSS where they reside in an
area with no community body. This section requires that if a community body is
authorised for a CDC trial area, the community body must assume responsibility for
decisions relating to applications to exit the CDC program and cannot defer their
power to make a decision to the Secretary.
Following passage of the Income Management and Cashless Welfare Act, feedback
from communities indicated the majority of community body representatives strongly
indicated a lack of support of the exit process and particularly the role of community
bodies as the decision maker. Community stakeholders also indicated that any
process to exit the program should be based on a participant meeting social norms,
as well as the current criteria relating to financial management. Without the critical
support of the community bodies and agreement to make decisions on these
applications, it is not possible to implement the exit process as provided for under
the current provisions.
This Bill will amend the exit criteria under current paragraph 124PHA(2)(a) to allow
broader consideration of a person's 'affairs', including their financial affairs. This
allows full consideration of all the factors listed in paragraph 124PHA(2)(a), such as
the impacts on children and family safety. This change to criteria is in line with
feedback from consultation with community stakeholders and is consistent with the
broader social objectives of the CDC program.
This Bill will amend the exit process to reflect the feedback from consultation and to
require applications be made in a form approved by the Secretary. The
amendments also enable the Secretary to make a determination in relation to
applications, which will be a reviewable decision.
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These amendments will also move the exit and wellbeing exemption arrangements
under one subdivision in the Social Security Administration Act. This removes
differences in decision-making processes, increasing consistency and fairness for
participants across trial areas regardless of whether a person is a participant in a trial
area where there is a community body in place.
CDC participants can also be exited from the trial if they were incorrectly placed on
the trial or if they no longer meet the participant criteria. This is different to the
wellbeing exemption process, where a CDC participant could be exempted from the
trial if being on the trial could pose a serious risk to their mental, physical or
emotional wellbeing.
The amendments made by this Schedule commence on the day after this Act
receives Royal Assent.
Explanation of the changes
Items 1, 3, 5 and 7 repeal paragraphs 124PG(1)(ha) and (i), 124PGA(1)(ha) and (i),
124PGB(1)(ha) and (i) and 124PGC(1)(ga) and (h) of the Social Security
Administration Act and substitutes them with two new requirements for the purposes
of whether a person is a trial participant. These requirements are that the person is
not covered by a determination under subsections 124PHA(1) and 124PHB(3).
Items 2, 4, 6 and 8 repeal subsections 124PG(4) to (6), 124PGA(4) to (6),
124PGB(4) to (6) and 124PGC(4) to (6) of the Social Security Administration Act.
These provisions provided for the wellbeing exemption arrangements in each CDC
trial site. Repealing these provisions will mean that the wellbeing exemption
provisions will no longer apply specifically in each trial site. Instead, new section
124PHA inserts new wellbeing exemption arrangements across all CDC regions
from commencement of this Bill.
Item 9 repeals Subdivision C of Division 2 of Part 3D and substitutes it with new
Subdivision C--When persons not subject to cashless welfare arrangements.
New section 124PHA provides the requirements for assessing whether a person's
mental, physical or emotional wellbeing is at serious risk. From commencement of
this Bill, this amendment provides for the wellbeing exemptions to apply across all
CDC sites.
Subsection 124PHA(1) provides that the Secretary must determine that a person is
not a trial participant if the Secretary is satisfied that being a trial participant would
pose a serious risk to the person's mental, physical or emotional wellbeing. The
intent of this provision is to protect those persons who, based on an assessment of
their circumstances, may seriously be at risk of adverse impacts on their mental,
physical or emotional wellbeing, as a result of being subject to the CDC trial.
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Subsection 124PHA(2) provides that the Secretary is not required to inquire into
whether a person being a trial participant would pose a serious risk to the person's
mental, physical or emotional wellbeing. The Secretary will consider making this
determination once he or she is aware of facts, which indicate that being a trial
participant may seriously risk a person's mental, physical or emotional
wellbeing. Where the Secretary is satisfied that being a trial participant would
seriously risk that person's mental, physical or emotional wellbeing and makes a
determination to this effect, the person will not be subject to the CDC trial.
If the serious risk to the person is only brought to the Secretary's attention after they
have become a trial participant, and provided the Secretary is satisfied that being
subject to the trial poses a serious risk to the person's mental, physical or emotional
wellbeing, the Secretary must determine that the person should no longer be a trial
participant.
Subsection 124PHA(3) provides that the Secretary must not revoke a determination
made under subsection 124PHA(1). This subsection clarifies that a decision made
under subsection (1) cannot be revoked and that a person is permanently exempt
from the CDC trial if a determination has been made under subsection 124PHA(1).
Subsection 124PHA(3) applies to prior determinations to which sub-item 10(1)
applies.
Subsection 124PHA(4) provides that a determination under subsection 124PHA(1) is
not a legislative instrument within the meaning of subsection 8(1) of the Legislation
Act 2003. This subsection is declaratory only, because such a determination is not
legislative in character, in that it affects only the person.
New section 124PHB provides for how a person may exit the trial of cashless
welfare arrangements.
Subsection 124PHB(1) provides that a person may apply to the Secretary to exit the
trial of cashless welfare arrangements.
Subsection 124PHB(2) provides that the application must be in a form approved by
the Secretary.
Subsection 124PHB(3) provides that the Secretary may determine that the person is
not a trial participant if the Secretary is satisfied that:
(a) the person can demonstrate reasonable and responsible management of the
person's affairs (including financial affairs), taking into account all of the
following:
(i) the interest of any children for whom the person is responsible;
(ii) whether the person was convicted of an offence against a law of the
Commonwealth, a State or a Territory, or was serving a sentence of
imprisonment for such an offence, at any time in the last 12 months;
(iii) risks of homelessness;
(iv) the health and safety of the person and the community;
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(v) the responsibilities and circumstances of the person;
(vi) the person's engagement in the community, including the person's
employment or efforts to obtain work; and
(b) the person satisfies any requirements determined in an instrument under
subsection 124PHB(6).
As well as demonstrating that a CDC participant is able to financially provide for
themselves and their dependents, subparagraph 124PHB(3)(a)(i) requires the
Secretary to take account of whether the participant has ensured that the interests of
children in their care are met, for example opportunities to participate in
age-appropriate activities such as school attendance.
Other considerations for the Secretary include whether a person is subject to an
order of the court, such as a community or detention order but has not been
convicted of an offence.
Section 33(3) of the Acts Interpretation Act 1901 applies to a decision made under
subsection 124PHB(3), so that the Secretary may revoke a determination if he or
she is no longer satisfied that the person should not be subject to the CDC trial.
Subsection 124PHB(4) requires that the Secretary must give the person written
notice of the Secretary's decision on the application. If the Secretary refuses to
make a determination, the notice must set out the reasons for the refusal and that
the decision is subject to internal or external review.
Subsection 124PHB(5) provides that a determination under subsection 124PHB(3) is
not a legislative instrument within the meaning of subsection 8(1) of the Legislation
Act 2003. This subsection is declaratory only, because such a determination is not
legislative in character, in that it affects only the person.
Subsection 124PHB(6) provides that the Minister may, by legislative instrument,
determine requirements for the purposes of paragraph 124HB(3)(b).
Subsection 124PHB(7) requires that before the Minister makes a determination
under subsection 124PHB(6), the Minister must:
(a) consult with local communities and trial participants; and
(b) have regard to any feedback received as a result of those consultations.
Subsection 124PHB(8) provides for a reconsideration of the Secretary's
determination under subsection 124PHB(3). A health or community worker (as
defined in subsection 124PD(1) of the Social Security Administration Act) may
request the Secretary to reconsider a determination made under subsection
124PHB(3) if the worker considers that it is necessary for the person to be a trial
participant for medical or safety reasons.
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Subsection 124PHB(9) provides that the Secretary must revoke the
subsection 124PHB(3) determination if the worker makes such a request and, having
taken into account the information provided by the worker, the Secretary is no longer
satisfied of the matters in paragraphs 124PHB(3)(a) and (b). However, if the
Secretary continues to be satisfied of the matters in paragraphs 124PHB(3)(a) and
(b), the person will continue not to be subject to the CDC trial.
Subsection 124PHB(10) provides that subsection 124PHB(9) does not prevent the
person from making another application under subsection 124PHB(1).
Item 10 provides the transitional arrangements for this measure.
Subitem 10(1) provides that if, immediately before the commencement of this item, a
determination under subsection 124PG(4), 124PGA(4), 124PGB(4) or 124PGC(4) of
the Social Security Administration Act was in force in relation to a person, then, at
the commencement of this item, the Secretary is taken to have made a
determination under subsection 124PHA(1) of that Act in relation to the person. This
ensures that wellbeing determinations made in relation to a trial participant before
commencement are not disturbed and will continue to apply from commencement.
Subitem 10(2) provides that if, immediately before the commencement of this item,
section 124PHA of the Social Security Administration Act applied to a person, then,
at the commencement of this item, the Secretary is taken to have made a
determination under subsection 124PHB(3) of that Act in relation to the person. This
ensures that exit determinations made in relation to a trial participant before
commencement are not disturbed and will continue to apply from commencement of
this Bill.
Subitem 10(3) provides that if, immediately before the commencement of this item,
an application under subparagraph 124PHA(1)(a)(ii) or (b)(ii) of the Social Security
Administration Act was pending, then:
(a) at the commencement of this item, the application is taken to have been made
under section 124PHB of that Act; and
(b) the Secretary must decide the application in accordance with section 124PHB
of that Act.
As a result of subitem 10(3), where exit applications have been received prior to the
amendments commencing, but no decision has been made, these applications
would be assessed under exit provisions as amended by this Bill.
The change to criteria is in line with feedback from consultation with community
stakeholders. It also ensures consistency of the new exit pathway with the broader
social objectives of the CDC program; as listed in section 124PC of the Social
Security Administration Act, the trial of cashless welfare arrangements seeks to
determine whether such arrangements lead to decreases in violence or harm in trial
areas and encourage socially responsible behaviour.
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Application of the broader criteria under this approach addresses at the earliest
opportunity the unintended consequence posed by the current criteria, namely
participants being exited who would have been required to stay on the program had
consideration been given to factors beyond the person's financial affairs. The
emphasis on financial management in the current criteria may lead to anomalous
situations whereby a person could meet the criteria based on financial grounds
despite being in contact with authorities for non-financial reasons (such as child
protection or family violence issues). It would also restrict the opportunity for a
person to be able to demonstrate they are acting in the best interest of children,
families and the community such as positive school attendance outcomes. Given
the CDC seeks to improve social outcomes and reduce anti-social and harmful
behaviour, it would be more beneficial for communities if the criteria allowed such
behaviours to be taken into account.
Subitem 10(3) also ensures consistency in the decision-making process, as all
applications would be assessed by the Secretary from commencement onwards.
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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 SECURITY (ADMINISTRATION) AMENDMENT (CASHLESS WELFARE)
BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Bill allows the Secretary of the Department of Social Services (DSS) to be the
decision maker for all Cashless Debit Card (CDC) exit applications and broadens the
criteria for the exit provisions to allow the Secretary to take into account a person's
ability to manage their affairs generally, including their financial affairs. Further, the
Bill clarifies that exit applications need to be made in a form that is approved by the
Secretary and expands the wellbeing exemption provisions so they apply more
broadly across all regions.
Human rights implications
The Parliamentary Joint Committee on Human Rights reviewed the Social Security
(Administration) Amendment (Income Management and Cashless Welfare) Bill 2019,
the Social Services Legislation Amendment (Cashless Debit Card Trial Expansion)
Bill 2018, and previously the Social Services Legislation Amendment (Cashless
Debit Card) Bill 2017 and the Social Security Legislation Amendment (Debit Card
Trial) Bill 2015. These reviews note the Committee's views that the CDC trial
engages and limits three human rights: the right to social security, the right to privacy
and the right to equality and non-discrimination.
This Bill proposes administrative amendments to the exit application process and
streamlines legislative provisions. It does not change the objectives of the CDC trial
and does not change or exceed the three human rights that the trial currently
engages and limits: the right to social security, the right to privacy 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 CDC trial, set out in Part 3D of the Act, are to:
(a) reduce the amount of certain restrictable payments available to be spent on
alcoholic beverages, gambling and illegal drugs; and
(b) determine whether such a reduction decreases violence or harm in the trial
areas; and
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Statement of compatibility with human rights
(c) determine whether such arrangements are more effective when community
bodies are involved; and
(d) encourage socially responsible behaviour.
In other words, the CDC trial has the objective of reducing immediate hardship and
deprivation, reducing violence and harm, encouraging socially responsible
behaviour, and reducing the likelihood that welfare payment recipients will remain on
welfare and out of the workforce for extended periods of time.
The consumption of alcohol and drugs and partaking in gambling at harmful levels
can negatively impact on a person's ability to work, and can lead to long-term
welfare dependency. The CDC trial's primary purpose is to reduce harm at a
community level from the use of harmful products such as alcohol, drugs and
gambling. A flow-on impact of providing this tool to help address these issues is that
participants are able to stabilise their lives, leading to an increased ability to
participate in the workforce.
The CDC trial sites have been selected where there has been evidence of
community level harms that the program objectives aim to address. They have also
been selected due to strong levels of community support in each of the trial sites.
Discussions to establish continued levels of support are ongoing and support from
key stakeholders in each site remains today due to the positive impact the card has
had on the community as a whole, not just the participants themselves.
Regarding the CDC trial, the final independent evaluation of the CDC trial by ORIMA
Research was released on 1 September 2017, and included results from the first two
trial areas, Ceduna, South Australia, and the East Kimberley, Western Australia.
The evaluation found that the CDC trial 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'.
A second independent impact evaluation of the CDC trial is currently being
undertaken to further assess the ongoing effectiveness of the trial in the first three
sites of Ceduna, East Kimberley and the Goldfields. The Future of Employment and
Skills Research Centre at the University of Adelaide has been commissioned to
undertake this second impact evaluation, which is designed to extend and enhance
the evidence base previously generated during the first independent impact
evaluation of the first two sites.
General safeguards
A number of general safeguards that help to protect human rights have been
incorporated into the operation of the CDC trial. First, the rollout of the CDC trial in
existing and proposed locations was subject to an extensive community consultation
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Statement of compatibility with human rights
process. Discussions in relation to the continued operation of the program with key
stakeholders in each location are ongoing.
Secondly, following the first initial independent, comprehensive evaluation of the first
two sites, the Government is conducting a second evaluation of the CDC trial across
the first three trial sites, to assess the ongoing effectiveness of the program. The
second evaluation will build on the evidence base established through a continuous
data monitoring activity, ongoing engagement with the communities and baseline
data collected in the Goldfields site. When completed, this second evaluation will be
subject to an independent review process in accordance with section 124PS of the
Social Security Administration Act. An impact evaluation of the Bundaberg and
Hervey CDC trial will also commence in 2019-20, building on baseline data collection
currently underway.
The right to social security
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.
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 CDC sites, the right to social security is limited only in the participant's
ability to use a proportion of their payment to purchase harmful goods, in an area
where there are demonstrated high levels of community harm. 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.
A portion of social security payments received by a CDC participant is quarantined,
with restricted goods not able to be purchased using this portion. These funds are
held in a welfare restricted bank account, and cannot be withdrawn as cash, or used
to purchase alcohol, gambling products or 'cash-like' products that could be used to
obtain alcoholic beverages or gambling. Businesses which sell restricted items or
products may service participants, where they have systems in place that do not
allow the sale of these products to holders of a CDC. 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 schemes, outlined above, could not
be met.
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Statement of compatibility with human rights
The restricted bank account functions like a standard, mainstream bank account.
This serves to minimise restrictions on the way social security is received. The CDC
itself is a standard Visa debit card that can be used at the majority of merchants that
accept EFTPOS. The account allows for a range of flexible payment options
including online transfers, BPAY, direct debits, online shopping and recurring
deductions. As well as accessing these services online, a mobile application has
been developed for use on smartphones. There are also two hotline services
operated by the card provider and DSS to provide technical and practical support for
participants.
Given the objectives of the CDC trial, and the prevalence of social harm in the areas
these schemes operate, any limitation on the right to social security is reasonable
and proportionate.
The right to a private life
The impact of the trial on the right to a private life and privacy has previously been
raised.
Article 17 of the International Covenant on Civil and Political Rights sets out the right
to a private life. It prohibits arbitrary or unlawful interferences with an individual's
privacy, family, correspondence or home.
The CDC trial 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 welfare schemes limit the right to a private life. The
CDC trial is targeted to communities where high levels of welfare dependence exist
alongside high levels of social harm. This limitation on the right to a private life is
directly related to the objectives of reducing such harm. This is because the
limitations put in place restrict transactions at businesses selling goods that
contribute to such harm.
The CDC trial 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 CDC trial, Government cannot see what items or products people are
purchasing.
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Statement of compatibility with human rights
The section seeks to enable the program to achieve a legitimate objective and are
necessary for the CDC trial to operate effectively and to be evaluated. In order to
establish bank accounts for participants, Services Australia (formerly the Department
of Human Services) must transfer customer information to the card provider. The
card provider in turn provides new account details back to Services Australia. While
the CDC trial is operating, the card provider must also transfer information about
participants to DSS. DSS uses this information to run and evaluate the program.
Without this sharing of information, new accounts cannot be set up and so the CDC
trail 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)).
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 CDC trial.
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 CDC trial operates, and receiving a payment
specified by instrument or legislation, will become a participant. The program is
therefore not targeted at people of a particular race, but to welfare recipients who
meet particular criteria.
The wellbeing exemption provisions apply to any CDC participant, if being on the trial
poses a serious risk to their mental, physical or emotional wellbeing. Further, the
CDC exit provisions under new section 124PHB is open to all CDC trial participants
to apply for an exit from the trial if they can demonstrate reasonable and responsible
management of their affairs.
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Statement of compatibility with human rights
While the CDC trial does not directly limit the rights to equality and
non-discrimination, it may indirectly limit these rights. For example, before the CDC
trial commenced in the East Kimberley, Western Australia, 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, South
Australia, 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 CDC trial currently has on Aboriginal and Torres Strait
Islander people, consideration of the most recent sites of the Goldfields and the
Bundaberg and Hervey Bay area also looked at these being communities with
significantly lower Aboriginal and Torres Strait Islander population. With the addition
of the Goldfields areas, Western Australia, and the Bundaberg and Hervey Bay area,
Queensland, the proportion of Indigenous participants across the four sites is around
38 per cent.
Where communities do have high Aboriginal and Torres Strait Islander populations,
the support of key Aboriginal and Torres Strait Islander leaders will continue to be
critical to ensure the Government upholds its commitment to 'work with' First
Australians.
The right to self-determination
Article 1 of the ICESCR states that 'all peoples have the right of self-determination.
By virtue of that right they freely determine their political status and freely pursue
their economic, social and cultural development'.
The amendments will not impact on or interfere with a person's right to pursue freely
their economic, social or cultural development.
CDC participants can continue to spend their restricted funds on any goods or
services except alcohol, gambling and illegal drugs as a result of having less access
to discretionary cash. The limitation on these products and services ensures that
vulnerable people are protected from abuse of these substances, and any
associated harm and violence.
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,
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Statement of compatibility with human rights
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 CDC trial does not limit the right to an adequate standard of living for affected
people. CDC participants 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
trial does 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 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 can improve living conditions for the children of
welfare recipients. Broadening the scope of the CDC exit process will ensure that
the rights of Children is duly considered, beyond the limited scope of a CDC
participant's management of their financial affairs only. 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 do not change the existing compatibility of the CDC trial with
human rights. The CDC trial will continue to 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 CDC trial and income management aim 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.
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Statement of compatibility with human rights
[Circulated by the authority of the Minister for Families and Social Services,
Senator the Hon Anne Ruston]
15