EXPLANATORY STATEMENT

Issued by the authority of the Minister for Families and Social Services

Social Security (Administration) Act 1999

Social Security (Administration) (Declared child protection State or Territory — Western Australia) Determination 2019

Purpose

The purpose of the Social Security (Administration) (Declared child protection State or Territory — Western Australia) Determination 2019 (the Determination) is to determine that Western Australia is a ‘declared child protection State or Territory’ for the purposes of Part 3B of the Act.

The effect of the Determination is that a child protection officer with the Western Australian department responsible for child protection 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.

In addition to the power to make this Determination under section 123TF of the Act, subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.  Accordingly, the Social Security (Administration) (Declared child protection State or Territory – Western Australia) Determination 2008 will repealed by this Determination.

Background

Part 3B of 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.

Subdivision A of Division 2 of Part 3B sets out the various situations in which a person is subject to the income management regime.  Section 123UC, in that Subdivision, provides that a person is subject to the income management regime at a particular time (the test time) if, amongst other things: before the test time, a child protection officer of a State or Territory has given the Secretary a written notice requiring that the person be subject to the income management regime; and, at the test time, the State or Territory is a declared child protection State or Territory.  The term ‘child protection officer’ is defined in section 123TC of the Act as an officer or employee of a State or Territory who has functions, powers or duties in relation to the care, protection or welfare of children.  The term ‘declared child protection State or Territory’ has the meaning given by section 123TF of the Act.  Section 123TF provides that the Minister may, by legislative instrument, determine that a specified State or Territory is a declared child protection State or Territory for the purposes of Part 3B of the Act.

Commencement

The Determination commences on the day after it is registered.

Consultation

Income management is in operation until 30 June 2019 and the Determination continues the intent of the income management program.  The Department has consulted with the Department of Communities, Western Australia in developing this Determination.

Regulatory Impact Analysis

The Determination does not require a Regulatory Impact Statement.  The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.  It is not expected that any compliance costs will be incurred by business as a result of this Determination.

Explanation of provisions

Section 1 provides the name of this instrument is the Social Security (Administration) (Declared child protection State or Territory — Western Australia) Determination 2019.

Section 2 states that the Determination commences the day after it is registered.

Section 3 provides that the authority for making this instrument is section 123TF of the Social Security (Administration) Act 1999.

Section 4 defines Act as the Social Security (Administration) Act 1999.

Section 5 specifies that the Social Security (Administration) (Declared child protection State or Territory – Western Australia) Determination 2008 is repealed as set out in Schedule 1.

Section 6 provides that for the purposes of section 123TF of the Act, Western Australia is a declared child protection State or Territory.

Schedule 1 – Repeals

Item 1 repeals the Social Security (Administration) (Declared child protection State or Territory – Western Australia) Determination 2008.

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 or Territory – Western Australia) Determination 2019

The Social Security (Administration) (Declared child protection State or Territory – Western Australia) Determination 2019 (the Determination) 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

The Determination declares Western Australia as a state in which the child protection measure of income management can operate.

Human rights implications

There are a number of human rights income management touches on including the rights of children and the right to:

• self-determination,
• social security
• a private life
• equality and non-discrimination

Income management is a budgeting tool to help people meet ongoing needs for themselves and their family. Income management works by directing a proportion of certain income support and family assistance payments to priority items such as food, housing, clothing and utilities.

Income management does not change how much a person receives. It just changes the way that they receive part of their welfare payments. People participating in income management receive the rest of their payments in the usual way. Income managed funds cannot be spent on alcohol, tobacco, pornography or gambling. 

People can spend their income managed funds by organising direct payments to people and organisations for things like rent, utilities, food or household items, and by using the BasicsCard.

The child protection measure of income management has limited interference with a person’s right to a private life and right to pursue freely their economic, social or cultural development and does not detract from the eligibility of a person to receive welfare, nor reduce the amount of a person’s social security entitlement (article 17 of the International Covenant on Civil and Political Rights and article 1 and 9 of the International Covenant on Economic, Social and Cultural Rights).  Any limitations on these rights is reasonable and proportionate and is directly related to the objective of ensuring that welfare payments are directed to the needs of children who are experiencing neglect.

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 and the International Convention on the Elimination of All Forms of Racial Discrimination. The child protection measure of income management is targeted where there are cases of neglect of children and does not apply based on race or ethnic origin.

The child protection measure of income management ensures that an adequate amount of a person’s welfare payment is spent on meeting the priority needs of children.  This measure thereby advances 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).

Conclusion

The Determination is compatible with human rights and will advance the protection of children by ensuring income support payments are spent on priority needs.

To the extent that human rights are limited, those limitations are reasonable, necessary and proportionate to achieving the objectives of income management.

The Hon Paul Fletcher MP, Minister for Families and Social Services