EXPLANATORY STATEMENT
Social Security (Administration) (Declared child protection State – New South Wales, Queensland, South Australia and Victoria) Determination 2012
The Social Security (Administration) (Declared child protection State – New South Wales, Queensland, South Australia and Victoria) Determination 2012 (the Determination) is made under section 123TF of the Social Security (Administration) Act 1999 (the Act). The Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform, as well as making the Determination in her own capacity, is also making it on behalf of the Minister for Education and the Minister for Employment and Workplace Relations.
Background
As part of the 2011-12 Budget, the Australian Government is implementing the Building Australia’s Future Workforce package. This includes introducing new measures to promote long term economic participation in various of the nation’s most disadvantaged communities. The measures involve extra responsibilities and more assistance for teenage parents on income support, jobless families and other vulnerable groups, to support children and families and help parents enter or return to the workforce.
As part of this package, income management is being introduced into five new sites from 1 July 2012. These sites were chosen because they demonstrated a high level of disadvantage, based on a number of factors including unemployment levels, youth unemployment, skills gaps, educational achievement, the numbers of people receiving welfare payments, and the length of time people have been on income support payments.
Income management will apply to vulnerable families and individuals in these communities, including:
- people referred for income management by State child protection authorities, where they assess that a child is at risk of neglect (the child protection measure);
- people assessed by Centrelink Social Workers as being vulnerable by reference to factors including financial crisis and risk of homelessness (vulnerable welfare payment recipient measure); and
- people who volunteer for income management (voluntary income management).
This Determination gives effect to the implementation of the child protection measure in the five sites, by declaration of the four States in which the sites are located. Separate determinations commence the vulnerable welfare payment recipient measure and voluntary income management in these sites.
Purpose
This Determination specifies each of New South Wales, Queensland, South Australia and Victoria as a ‘declared child protection State’.
The Determination is a legislative instrument and commences on 1 July 2012.
Consultation
Ongoing consultations have been undertaken with State child protection and housing authorities with a view to entering into bilateral agreements between the Commonwealth and State governments that finalise referral protocols to income management. In conjunction with these consultations, the Commonwealth has held regular meetings with stakeholders in the five sites, including community organisations that have raised concerns, with a particular focus on income management.
Consultation on the Determination was undertaken with the Department of Employment and Workplace Relations and with the Department of Industry, Innovation, Science, Research and Tertiary Education.
Regulatory Impact Analysis
The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Administration) (Declared child protection State – New South Wales, Queensland, South Australia and Victoria) Determination 2012
This Legislative Instrument 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 Legislative Instrument
Part 3B of the Social Security (Administration) Act 1999 (the Act) establishes an income management regime that applies to recipients of certain welfare payments. If a person is subject to the income management regime under Part 3B, the Secretary will deduct amounts from the person’s relevant welfare payments and credit those amounts to the person’s income management account. The Secretary may then debit amounts from the person’s income management account, in accordance with Part 3B, for the purpose of taking actions directed to meeting the priority needs of the person or his or her dependants.
The purpose of this instrument is to determine that New South Wales, Queensland, South Australian and Victoria are each a ‘declared child protection State or Territory’ for the purposes of Part 3B of the Act.
The effect of the Determination is that once the instrument commences, a child protection officer with the New South Wales, Queensland, South Australian or Victorian Government will be able to give the Secretary a notice, as mentioned in section 123UC of the Act, requiring a person to be subject to the income management regime. If the various criteria in section 123UC are satisfied (including that the person, or the person’s partner, is an eligible recipient of a relevant welfare payment), a portion of the person’s relevant welfare payments will be redirected to the priority needs, such as food, clothing and shelter, of the person and his or her dependants.
The key objectives of income management under the Act are:
- reduce immediate hardship and deprivation by directing welfare payments to the priority needs of recipients, their partner, children and any other dependents,
- help affected welfare payment recipients to budget so that they can meet their priority needs,
- reduce the amount of discretionary income available for alcohol, gambling, tobacco and pornography,
- reduce the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments, and
- encourage socially responsible behaviour, particularly in the care and education of children.
Human rights implications
The right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognised ‘the right of everyone to social security, including social insurance’. That right requires a country to, within its maximum available resources; 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 forms of education. Article 26 of the Convention on the Rights of the Child (CRC) ensures that right to ‘every child’ and requires that ‘benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child’. People subject to income management retain their same right to social security whilst being provided a mechanism to acquire the essential items outlined in Article 9 of the ICESCR. The requirement to apply an allocated percentage of their social security payments to the maintenance of themselves and their children via food, clothing and housing supports this right.
The rights of the child
The Commonwealth is supportive of Article 6 of the CRC, which states that ‘parties shall ensure to the maximum extent possible the survival and development of the child.’ This article, when read in conjunction with Article 18, in which ‘Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern,’ suggests that it is the responsibility of both parents and the Commonwealth to ensure that priority needs of children are met. The child protection measure of income management will help parents who are identified by the State as requiring assistance, to meet their responsibilities in relation to the upbringing and development of the child by ensuring 70 per cent of their welfare payments are directed to priority needs.
Under Article 27 ‘Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.’ Further to this, it is stated in Article 27.3 parties (such as the Commonwealth) ‘shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.’ The expansion of income management by the Commonwealth will assist parents, carers and those responsible for children to ensure that funds are spent on priority needs such as food, clothing and housing, which supports international requirements under the CRC.
The obligation to participate in compulsory income management is supported by Article 19 of the CRC by requiring parties to provide ‘protection measures’ to ‘provide necessary support for the child and those who have the care of the child.’ Both the child protection measure and vulnerable measure of income management will act as a form of protection for children and families, ensuring priority needs are met and risk of homelessness and/or exploitation is addressed.
The Commonwealth also views the expansion of income management as a response to requirements set out in Article 24.2(a) and 24.2(c) of the CRC. The Commonwealth agenda to close the gap in indigenous life expectancy, combined with the commitments to protecting and providing for children and vulnerable people through major reforms to the welfare system, with income management playing a role in both diminishing ‘infant and child mortality’ and ‘to combat disease and malnutrition’ by encouraging social security payments to be spent on items including ‘adequate, nutritious foods,’ supports these statements in the CRC.
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 the realization of this right’. Further to this, article 11.2 of the ICESCR states that ‘measures, including specific programmes,’ should be taken in ‘recognizing the fundamental right of everyone to be free from hunger’. Through the child protection income management measure, 70 per cent of a person’s income support and family payments are directed to pay for life’s essentials. Income management is a tool to stabilise people’s circumstances and ease immediate financial stress. It ensures that money is available for priority goods such as food, clothing and housing, and provides a tool to help people budget. Income management can also help people stabilise people’s lives, so they can care for their children, and join or return to the workforce.
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 expansion of the child protection measure of income management will not deprive people of their means of subsistence or political status, but will require that 70 per cent of their social security payments must be spent on priority needs. This stance is supported by Article 27 of the CRC, which outlines that the parent and/or guardian of the child has a responsibility to ensure living conditions necessary for the child’s development. In further support of the measure, Article 27.3 requires the Commonwealth to take appropriate measures to assist those responsible for the child to ensure these needs are met.
Child protection income management is a tool (as outlined in Article 27.3 of the CRC) to stabilise people’s circumstances and ease immediate financial stress. It ensures that money is available for life’s essentials such as food, clothing and housing, and provides a tool to help people budget. Income management can help people stabilise their lives, so they can care for their children, and join or return to the workforce. Through the child protection measure, people have funds readily available for life’s essentials, with 70 per cent of a person’s income support and family payments directed to pay for priority goods and services such as food and rent.
Whilst this does limit people’s ability to freely dispose of their resources it does not impact on their right to freely pursue their economic, social or cultural development, this limitation is to ensure the protection and development of children and hence, is reasonable and permissible.
The right to freedom of movement
Article 12 of the International Covenant on Civil and Political Rights (ICCPR) provided that people ‘have the right to liberty of movement and freedom to choose his residence’. The expansion of income management will not restrict a person’s freedom to move. Where practicable, a person subject to income management will remain on the relevant measure should they elect to move from the nominated Local Government Area. In the event there is insufficient coverage of merchants who can accept income managed funds in a new location, the notice requiring a person to be subject to income management may be revoked. This provision supports people’s right to freedom of movement.
Right to a fair hearing
The Social Security (Administration) Act 1999 allows for review of the Secretary’s decisions to refer a person to compulsory income management. Decisions impacting on social security benefits engage a person’s right to a fair hearing in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and review mechanisms for these decisions will act as a safeguard. Decisions made by the Commonwealth are reviewable through the Commonwealth appeals and reviews system. Decisions made by the States are reviewable through internal State processes.
The right to privacy
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. Privacy guarantees a right to secrecy from the public of personal information. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances.
This instrument will not change any existing disclosure of information legislation. Rather, it will expand the scope of section 123ZE of the Act by determining additional States as declared child protection income management areas. Under the current legislation, despite any law (whether written or unwritten) in force in a State or Territory, a child protection officer of a State or Territory may give the Secretary information about a person for the purposes of Part 3B. If information about a person under section 123ZE is disclosed by such a child protection officer, the Secretary may disclose information about the person to a child protection officer of the State for the purposes of the performance of the functions and duties, or the exercise of the powers of the child protection officer in relation to the care, protection or welfare of children.
Conclusion
The Social Security (Administration) (Declared Child Protection State – New South Wales, Queensland, South Australia and Victoria) Determination 2012 is compatible with human rights. Income management will advance the protection of human rights by ensuring that income support payments are spent in the best interests of children and families, whilst also helping affected welfare payment recipients to improve their budgeting skills so they can meet their priority needs. To the extent that it may limit human rights those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of reducing immediate hardship and deprivation, encouraging socially responsible behaviour, particularly in the care and education of children, and reducing the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments.
Minister for Families, Community Services and Indigenous Affairs