Explanatory Statement
Issued by the authority of the Minister for Social Services
Social Security (Administration) Act 1999
Social Security (Administration) (Queensland Commission - Family Responsibilities Commission) Instrument 2026
Purpose
The Social Security (Administration) (Queensland Commission - Family Responsibilities Commission) Instrument 2026 (Instrument) is made to specify the Family Responsibilities Commission in Queensland under paragraph (b) of the definition of Queensland Commission in section 123TC of the Social Security (Administration) Act 1999 (the Act), for the purposes of the income management regime and the enhanced income management regime.
Background
The purpose of the Instrument is to continue the specification of the Family Responsibilities Commission (the Commission), established by section 9 of the Family Responsibilities Commission Act 2008 (Qld), for the purposes of paragraph (b) of the definition of Queensland Commission in section 123TC of the Act.
Section 123TC of the Act defines the Queensland Commission as a body or agency that is established by a law of Queensland and specified in a legislative instrument made by the Minister for the purposes of paragraph (b) of the definition.
The effect of the Instrument is that where a notice is given to the Secretary (as defined in subsection 23(1) of the Social Security Act 1991) by the Commission that requires that a person be subject to the income management regime under section 123UF of the Act (in Part 3B), it is a notice given by the Queensland Commission for the purpose of that provision.
Section 123SB of the Act defines Queensland Commission, for the purposes of the enhanced income management regime in Part 3AA of the Act, as having the same meaning as in Part 3B relating to the income management regime. Accordingly, the Instrument is also relevant to enhanced income management. Where a notice is given to the Secretary by the Commission that requires that a person be subject to the enhanced income management regime under section 123SC of the Act (in Part 3AA), it is a notice given by the Queensland Commission for the purpose of that provision.
The Instrument repeals and replaces the Social Security (Administration) - Queensland Commission (Family Responsibilities Commission) Specification 2015 (2015 Specification), which is due to sunset on 1 April 2026. The Instrument remakes the 2015 Specification in substantially the same terms.
Commencement
The Instrument commences on the day after it is registered on the Federal Register of Legislation.
Authority
The Instrument is made under paragraph (b) of the definition of Queensland Commission in section 123TC of the Act.
Under subsection 33(3) of the Acts Interpretation Act 1901, 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. In making the Instrument, the Minister is relying on this subsection in conjunction with the instrument-making power in paragraph (b) of the definition of Queensland Commission in section 123TC of the Act.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to disallowance.
Consultation
The Department of Social Services (the Department) consulted with Services Australia and the National Indigenous Australians Agency on the text of the Instrument. These agencies are supportive of the Instrument.
The Department provided the Queensland Department of Women, Aboriginal and Torres Strait Islander Partnerships and Multiculturism with an opportunity to provide comment on the text of the Instrument.
The Department did not consult with persons likely to be affected by the Instrument, as the Instrument remakes the 2015 Specification in substantially the same terms. The Instrument does not intend to make any policy changes.
Availability of independent review
A decision made under the social security law, as informed by the Instrument, is subject to internal and external review under Parts 4 and 4A of the Act.
Explanation of the provisions
Details of the Social Security (Administration) (Queensland Commission - Family Responsibilities Commission) Instrument 2026
Section 1 – Name
Section 1 states how the instrument is to be cited, that is, as the Social Security (Administration) (Queensland Commission - Family Responsibilities Commission) Instrument 2026 (Instrument).
Section 2 – Commencement
Section 2 sets out a table providing for the commencement of the Instrument on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that the Instrument is made under paragraph (b) of the definition of Queensland Commission in section 123TC of the Social Security (Administration) Act 1999.
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to the Instrument is amended as set out in the applicable items in that Schedule, and any other item in a Schedule to the Instrument has effect according to its terms.
Section 5 – Definitions
Section 5 specifies that references to “Act” in the Instrument mean the Social Security (Administration) Act 1999.
Section 6 – Specification of Queensland Commission
Section 6 specifies the Queensland Commission as the Family Responsibilities Commission established under section 9 of the Family Responsibilities Commission Act 2008 (Qld).
Schedule 1 – Repeals
Item 1 repeals the Social Security (Administration) - Queensland Commission (Family Responsibilities Commission) Specification 2015 (2015 Specification). This Instrument remakes the 2015 Specification in the same substance, reflecting current drafting practices.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Administration) Act 1999
Social Security (Administration) (Queensland Commission - Family Responsibilities Commission) Instrument 2026
The Social Security (Administration) (Queensland Commission - Family Responsibilities Commission) Instrument 2026 (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
The Instrument is made to specify the Family Responsibilities Commission in Queensland under paragraph (b) of the definition of Queensland Commission in section 123TC of the Social Security (Administration) Act 1999, for the purposes of the income management regime and the enhanced income management regime.
The Instrument repeals and replaces the Social Security (Administration) - Queensland Commission (Family Responsibilities Commission) Specification 2015.
Human rights implications
Equality and non-discrimination
The Instrument engages Article 2(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) which posits that State Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.
The Instrument engages with the above article by enabling culturally relevant, community led individualised engagement with income management regimes.
The Instrument also engages the right to equality and non-discrimination under Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which states:
‘…all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
There is no incompatibility with the rights engaged as the circumstances meet the test for legitimate differential treatment under international law.
Legitimate differential treatment
The objective of Cape York Welfare Reform is aimed at supporting the restoration of socially responsible standards of behaviour and assisting community members to resume and maintain primary responsibility for the wellbeing of their community and the individuals and families within their community. This objective is considered sufficiently important to justify differential treatment on the basis of a prohibited ground.
An independent Evaluation of Cape York Welfare Reform, released in March 2013, indicates that the initiative has had a positive impact in participating communities, with increased personal responsibility and positive behavioural changes such as increased school attendance, increased commitment to education by parents, and greater support for local Indigenous authority and leadership.
The Family Responsibilities Commission (FRC), a central plank of the reforms, operates through a conferencing model. In practice, this means an individual will attend conferences with Local Commissioners who are respected Indigenous elders in the community. At the conferences, options for support are discussed, including referrals to existing support services, prior to any income management direction being made by the FRC. The FRC considers appropriate alternatives in conjunction with the individual, with income management only being used as a final measure.
Conclusion
The Instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
The Hon Tanya Plibersek MP, Minister for Social Services