EXPLANATORY STATEMENT
Social Security (Administration) — Queensland Commission (Family Responsibilities Commission) Specification 2012
The Social Security (Administration) — Queensland Commission (Family Responsibilities Commission) Specification 2012 (the Specification) is made under paragraph (b) of the definition of Queensland Commission in section 123TC 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 Specification 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.
Purpose and operation
The purpose of the Specification is to specify the Family Responsibilities Commission (the Commission), established by section 9 of the Family Responsibilities Commission Act 2008 (Qld) (the FRC Act), 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 Specification is that a notice 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 (in Part 3B) of the Act will be recognised as a notice given by the Queensland Commission. Under Part 3B of the Act, a person is subject to the income management regime under that Part if, amongst other things, the Queensland Commission has given the Secretary a notice requiring the person to be subject to the income management regime.
The Specification commences on 1 January 2013. The FRC Act is expressed to end on 1 January 2014.
The Specification extends the existing specification of the Commission, for the purposes of the definition of Queensland Commission, previously made under the Social Security (Administration) — Queensland Commission (Family Responsibilities Commission) Specification 2011 which ceases on 1 January 2013.
The Specification is a legislative instrument.
Background
The Cape York welfare reform trial (the trial) is a partnership between the communities of Aurukun, Coen, Hope Vale and Mossman Gorge, the Australian Government, the Queensland Government and the Cape York Institute for Policy and Leadership. It aims to restore positive social norms, re-establish local Indigenous authority and support community and individual engagement in the real economy.
To date, the trial has made a real difference in the lives of Indigenous people in the Cape. Since it began in July 2008, the Cape York welfare reform communities have seen improved school attendance, care and protection of children, and community safety.
A key plank of the trial is the Commission, established under Queensland Government legislation. Local Family Responsibility Commissioners hold conferences with community members, refer people to support services and, when necessary, arrange income management.
Currently, a person can be subject to income management under the trial only after a decision by the Commission made before 1 January 2013.
The Queensland Government has also committed to continuing its support for the trial and has passed legislation extending the operation of the Commission.
The trial is an Indigenous led reform aimed at addressing social inclusion outcomes, based on the Cape York Institute for Policy and Leadership’s detailed analysis of social dysfunction and proposals to rebuild social norms, improve education, personal responsibility and engagement in the real economy.
The trial is a place-based measure based on a comprehensive strategy to address intergenerational welfare dependence in four Cape York communities. The trial is implemented in partnership with the Queensland Government, Cape York Partnerships and the four communities of Aurukun, Coen, Hope Vale and Mossman Gorge.
The trial aligns closely with the National Indigenous Reform Agreement approach of multi-faceted efforts directed across a range of Building Blocks, with leadership of local Indigenous people being the centrepiece of the approach. The four communities involved are Remote Service Delivery National Partnership sites.
There are promising indications of positive change in the trial areas. There have been positive changes in school attendance, signs of increasing commitment to education by parents, growing indigenous authority and indications that levels of violence are decreasing.
The trial, part of which is the Cape York income management measure, commenced on 1 July 2008. It is proposed that there be an extension of the trial, and therefore the Cape York income management measure, to enable the trial to continue for a total period of five and a half years.
Operation of the Commission
The FRC Act provides that the Commission may take action in relation to a person if the person is a community member (as defined in section 7 of the FRC Act, including an assessment of whether the person is a welfare recipient as defined in section 8 of the FRC Act) and an agency notice (as defined in the Schedule to the FRC Act) has been given to the Commission about the person. A community member includes a person whose usual place of residence is in a trial community. A welfare recipient is a person who is a participant in the CDEP Scheme, or who is an eligible recipient of certain welfare payments that reflect the payments specified in section 123UF of the Act. An agency notice includes a school attendance, school enrolment, child safety, conviction or tenancy agreement notice that is given to the Commission.
Directing that a person be subject to the income management regime under Part 3B of the Act is only one of the actions that the Commission may take. The FRC Act also gives the Commission the power to: decide to take no action about a matter; give a person a ‘warning’ or reprimand about a matter; recommend that a person attend a community support service; enter into an agreement with a person under which the person must attend a community support service or become subject to the income management regime under the Act; and order that a person attend a community support service or be subject to the income management regime under the Act.
The FRC Act provides for the Commission to deal with matters in a way that facilitates early intervention, supports the restoration of socially responsible standards of behaviour and local authority in the trial communities and makes appropriate use of community support services. The FRC Act provides the Commission to operate in a conferencing model that is intended to provide an opportunity for the Commission to work directly with individuals to change behaviours.
Consultation
Consultation on the Specification was undertaken with the Department of Education, Employment and Workplace Relations and the Department of Industry, Innovation, Science, Research and Tertiary Education.
To ensure the trial continues to meet the needs of local people, the Queensland Government led a process of consultation with Cape York communities, in partnership with Australian Government staff and representatives of the Cape York Institute, on the proposed extension to 31 December 2013. This is consistent with the approach taken in 2007 before the Trial started.
The consultation included meetings in all trial communities and meetings with key government and non-government stakeholders. The 2012 consultation involved engagement with the same level and range of stakeholders as in 2011, including the Trial partners, State and regional agencies, Councils, service providers, unions, and community groups.
Regulatory Impact Analysis
The Specification 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
This Legislative Instrument is the Social Security (Administration) - Queensland Commission (Family Responsibilities Commission) Specification 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
The Cape York Welfare Reform Trial extension component of the Social Security and Other Legislation Amendment (Further 2012 Budget and Other Measures) Act 2012 introduced a minor amendment to the Social Security (Administration) Act 1999 (the Administration Act). Paragraphs 123UF(1)(g) and 123UF(2)(h) of the Administration Act provide that a person can only be subject to income management under section 123UF after a decision by the Queensland Commission made before 1 January 2013. The Queensland Commission is defined in section 123TC of the Administration Act.
The amendment extended to 1 January 2014 the timeframe for which a person, after a decision by the Queensland Commission, can be subject to income management under section 123UF of the Administration Act.
In accordance with this extension the Social Security (Administration) - Queensland Commission (Family Responsibilities Commission) Specification 2012 (the Legislative Instrument) is being made to ensure that the Family Responsibilities Commission (FRC) continues to be specified for the purposes of the definition of the Queensland Commission in section 123TC of the Administration Act, which is relied on by the above provisions of the Administration Act. The Legislative Instrument follows the previous instrument made for this purpose which ceases on 1 January 2013.
The purpose of the Legislative Instrument, as with the above legislative amendment, is to allow income management to continue in Cape York for a further 12 months until 1 January 2014.
Human rights implications
The Legislative Instrument is relevant to the Cape York Welfare Reform Trial which is intended to improve the lives of Indigenous people.
Eliminating racial discrimination
As with the legislative extension to the Cape York Welfare Reform Trial, the Legislative Instrument engages Article 2(1) of the Convention on the Elimination of All Forms of Racial Discrimination, which:
‘…imposes an obligation on State parties to undertake to pursue a policy of eliminating racial discrimination in all its forms and promoting understanding among all races...’[1]
Equality before the law
The Legislative Instrument also engages Article 26 of the International Covenant on Civil and Political Rights, 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.’[2]
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 the Cape York Welfare Reform Trial 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. Restoring socially responsible standards of behaviour and assisting community members to resume and maintain primary responsibility for the wellbeing of their community is considered sufficiently important to justify differential treatment on the basis of a prohibited ground.
The reviews of the trial conducted to date indicate that the trial has had a positive impact on community behaviours such as positive changes in school attendance, increasing commitment to education by parents, growing Indigenous authority and decreasing levels of violence.
Moreover, results of consultations conducted to date have established support for the trial from the four Cape York communities.
The FRC operates through a conferencing model. In practice, this means an individual will attend a number of conferences where alternative options are discussed, including attending 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.
The results of the reviews and consultations to date demonstrate that the differential treatment of members of the four Cape York communities is having a positive impact on the aims of the trial.
Conclusion
The Legislative 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 Jenny Macklin MP, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform
[1] International Convention on the Elimination of All Forms of Racial Discrimination, Article 2(1)
[2] International Covenant on Civil and Political Rights, Article 26.