EXPLANATORY STATEMENT
Social Security (Administration) (Declared income management areas — Ngaanyatjarra Lands and Laverton) Determination 2013
The Social Security (Administration) (Declared income management areas — Ngaanyatjarra Lands and Laverton) Determination 2013 (the Determination) is made under paragraph 123TGA(c) and subsection 123UCA(3) 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 Employment and Workplace Relations and the Minister for Tertiary Education, Skills, Science and Research.
Background
Following consultations with communities of the Ngaanyatjarra Lands and Laverton of Western Australia, the Australian Government announced that income management will be introduced into the Ngaanyatjarra Lands on 15 April 2013.
Income management in the Ngaanyatjarra Lands and Laverton will follow the same model that was introduced into five sites across Australia on 1 July 2012 as part of the Government’s Building Australia’s Future Workforce (BAFW) package as well as in the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands of South Australia.
The BAFW sites demonstrated a high level of disadvantage, based on a number of key factors, including unemployment levels, youth unemployment, the number of people receiving welfare payments, and the length of time people have been on income support. The level of disadvantage facing people in the Ngaanyatjarra Lands based on these factors is greater, and other available data highlights the significant overall disadvantage in the Ngaanyatjarra Lands.
The overall level of disadvantage in Laverton is comparable based on most of these indicators. Additionally, there are acute pockets of disadvantage in Laverton and significant ongoing concerns relating to child welfare. A considerable number of the people residing in Laverton are transient and have moved there from the Ngaanyatjarra Lands. Income management seeks to address that disadvantage.
Income management will apply to vulnerable families and individuals in the Ngaanyatjarra Lands and Laverton, including:
- people referred for income management by State child protection authorities, where they assess that a child is at risk (the child protection measure);
- people assessed by Department of Human Services 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).
The child protection measure already applies in the Ngaanyatjarra Lands and Laverton as the whole of Western Australia was declared a child protection State for the purposes of income management by the Social Security (Administration) (Declared child protection State or Territory - Western Australia) Determination 2008. The commencement of referrals will be by agreement with the Western Australian Government.
This Determination gives effect to the vulnerable welfare payment recipient measure and voluntary income management in the Ngaanyatjarra Lands and Laverton.
Purpose
This Determination specifies the Ngaanyatjarra Lands, consisting of the shire of Ngaanyatjarraku and the community of Kiwirrkurra (in the shire of East Pilbara), as well as Laverton shire, as declared voluntary income management areas under paragraph 123TGA(c) of the Act. It also specifies these locations for the purposes of paragraph 123UCA(1)(b) as an area in which the vulnerable welfare payment recipient measure applies under subsection 123UCA(3).
The Determination is a legislative instrument and commences on 15 April 2013.
Explanation of the Provisions
Section 1 states the name of the Determination.
Section 2 provides that the Determination commences on 15 April 2013.
Section 3 provides definitions for terms that are used in the Determination.
Any references to the Act are references to the Social Security (Administration) Act 1999.
Laverton shire means the shire of Laverton in Western Australia as designated in accordance with the Local Government Act 1995 (WA).
Ngaanyatjarra Lands means the shire of Ngaanyatjarraku in Western Australia and the remote community known as Kiwirrkurra Community located within the shire of East Pilbara in Western Australia, as designated in accordance with the Local Government Act 1995 (WA).
Section 4 declares each of Ngaanyatjarra Lands and Laverton shire as a declared voluntary income management area for the purposes of Part 3 of the Act.
Section 5 specifies each of Ngaanyatjarra Lands and Laverton shire for the purposes of paragraph 123UCA(1)(b) of the Act, to commence the vulnerable income management measure in these locations.
Consultation
The Commonwealth Government undertook extensive income management consultations with residents across Laverton shire and Ngaanyatjarra Lands throughout September and October 2012. The majority of residents advised that they thought income management would ensure payments are spent on essential items, and would assist in reducing the frequency of humbugging (a term used to describe various forms of exploitation) in the area. Most people said that income management could help ensure there is enough money for children and older people, for things like food, clothes and blankets.
Consultation on the Determination was undertaken with the Department of Education, 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 income management areas — Ngaanyatjarra Lands and Laverton) Determination 2013
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 the Social Security (Administration) (Declared income management areas — Ngaanyatjarra Lands and Laverton) Determination 2013 (the Determination) is to declare Ngaanyatjarraku shire, Kiwirrkurra community located within the shire of East Pilbara and Laverton shire (the Lands) as areas for the purposes of the vulnerable and voluntary income management measures in Part 3B of the Act.
The effect of the Determination is that once the Lands are specified for the purposes of paragraph 123UCA(1)(b), a person residing in that area, who is in receipt of a category H welfare payment, may become subject to the income management regime under the vulnerable welfare payment recipient measure of income management. If the various criteria in section 123UCA(1) are satisfied, which include among other things, that the person is considered a vulnerable welfare payment recipient, a portion of the person’s relevant welfare payments will be redirected to priority needs, such as food, clothing and shelter, of the person and his or her dependants.
Also, once the Lands are a declared voluntary income management area, a person residing in that area, who is in receipt of a category H welfare payment, may be eligible to enter into a voluntary income management agreement, under which that person agrees voluntarily to be subject to the income management regime for a particular period.
The key objectives of income management under the Act are to:
- reduce immediate hardship and deprivation by directing welfare payments to the priority needs of recipients, their partner, children and any other dependants,
- 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) recognises ‘the right of everyone to social security, including social insurance’. The UN Committee on Economic, Social and Cultural Rights has stated that implementing this 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'.
Income management does not reduce the amount of a person's social security entitlement. Rather, it provides a mechanism to ensure that certain recipients of social security entitlements use a proportion of their entitlement to acquire essential items, including all of those referred to by the UN Committee. The UN Committee on Economic, Social and Cultural Rights has stated that the right to social security encompasses the right to access and maintain benefits 'in cash or in kind'.
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 vulnerable and voluntary measures of income management, subject to certain exceptions, 50 per cent of a person’s income support and family payments are directed to pay for life’s essentials. Income management does not limit a person's right to an adequate standard of living. Instead, it aims to advance this right by ensuring 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 their lives, so they can care for their children, and join or return to the workforce.
The rights of children
By ensuring that a portion of income support payments is used to cover essential goods and services, income management can improve living conditions for the children of income support recipients. It thereby advances the right of children to benefit from social security, the right of children to the highest attainable standard of health and the right of children to adequate standards of living (arts 26, 24 and 27 of the Convention on the Rights of the Child, respectively).
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 income management in the Lands will not affect the means of subsistence or political status of any person or group, but will require that subject to certain exceptions, 50 per cent of the social security payments of persons subject to the income management regime must be spent on priority goods and services such as food and rent. Whilst income management does limit a person’s ability to freely dispose of all of their social security payment, it does not impact on their right to freely pursue their economic, social or cultural development. The limitation under income management on how social security payments may be spent is to ensure that the essential needs of vulnerable people are met and that they are protected against risks of homelessness and financial exploitation.
The people in the Lands were consulted about how income management might help people and what model would work best. These consultations found that people in the Lands were, on the whole, in favour of the introduction of income management.
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 result 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 Determination does not in its terms discriminate on the basis of race. The population of Ngaanyatjarraku shire (including Kiwirrkurra community) is predominantly Indigenous (approximately 85 per cent in the Ngaanyatjarraku shire and 90 per cent in the Kiwirrkurra community), whereas the Indigenous population is much lower in the Laverton Shire (approximately 30 per cent).
However, anyone who resides in the Lands (regardless of race), will be eligible for income management, so long as the other eligibility criteria are met. The Lands are also only one of the geographical areas in which income management has been introduced. It was also introduced in five sites across Australia on 1 July 2012 as part of the Government’s Building Australia’s Future Workforce (BAFW) package and the Anangu Pitjantjatjarra Yankunytjatjara (APY) Lands on 1 October 2012. The BAFW and APY Lands sites demonstrated a high level of disadvantage, based on a number of key factors including unemployment levels, youth unemployment, skills gaps, educational achievement, the number of people receiving welfare payments, and the length of time people have been on income support payments.
These factors were used to assess whether income management measures should also be applied to the Lands. They are reasonable, objective, and non-race based criteria. Against these criteria, the levels of disadvantage in the Lands are similar or greater than in the five BAFW sites and the APY Lands. The potential benefits of income management for people in the Lands are the same as the benefits for people at the five BAFW sites and the APY Lands. Further, consultations have found that people in the Lands were, on the whole, in favour of the introduction of income management. Protections, via review and appeal rights, are in place under the scheme.
The introduction of the vulnerable welfare payment recipient measure and voluntary income management measure in the Lands are therefore reasonable and non-discriminatory measures. They have been introduced on the basis of reasonable and objective criteria, which have been used in relation to other areas, and which reveal the significant disadvantage of people in the Lands. The measures aim to ensure that vulnerable individuals and families have adequate food, housing and utilities and that children are protected.
Conclusion
The Determination 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 welfare payment recipients and their dependants whilst also helping to improve their budgeting skills so they can meet their priority needs. To the extent that they 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, and reducing the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments.
The Hon Jenny Macklin MP, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform