EXPLANATORY STATEMENT
Social Security (Administration) — Queensland Commission (Family Responsibilities Commission) Specification 2014
The Social Security (Administration) — Queensland Commission (Family Responsibilities Commission) Specification 2014 (the Specification) is made under paragraph (b) of the definition of Queensland Commission in section 123TC of the Social Security (Administration) Act 1999 (the Social Security Administration Act).
Purpose and operation
The purpose of the Specification is to continue the specification of 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 Social Security Administration Act.
Section 123TC of the Social Security Administration 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 Social Security Administration Act will be recognised as a notice given by the Queensland Commission. A person is subject to the income management regime under Part 3B of the Social Security Administration Act if, amongst other things, the Queensland Commission has given the Secretary a notice requiring that the person be subject to the income management regime.
The Specification commences on the 28th day after the Social Services and Other Legislation Amendment Act 2014 receives the Royal Assent. The specification could not commence immediately following the expiry of the previous specification (i.e. the Social Security (Administration) — Queensland Commission (Family Responsibilities Commission) Specification 2012) due to a delay in the passage of legislation for continuation of income management under section 123UF beyond the end of 2013. In the interim, an alternative measure of income management under section 123UFAA of the Social Security Administration Act has been operating in affected communities. Legislation to extend income management under section 123UF until the end of 2015 has been recently passed by Parliament. This Specification is made to restore income management under section 123UF. The commencement of the Specification aligns with when the legislative amendments take effect and when the instruments for the interim arrangements cease. The Specification expires immediately before 1 January 2016.
The Specification is a legislative instrument.
Background
Cape York Welfare Reform 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 local Indigenous authority, rebuild social norms, encourage positive behaviours, and improve economic and living conditions.
Cape York Welfare Reform has made a real difference in the lives of Indigenous people in the four communities. 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 2012 evaluation of Cape York Welfare Reform found that progress has been made at the foundational level in stabilising social circumstances and fostering behavioural change, particularly in the areas of sending children to school, caring for children and increasing individual responsibility.
The Family Responsibilities Commission, which is established under Queensland Government legislation, is a key plank of Cape York Welfare Reform. Local Commissioners hold conferences with community members, refer people to support services and, when necessary, arrange income management. Income management acts both as a means to ensure financial stability for families and as an incentive for the individual to engage with support services and observe behavioural obligations.
Parliament has recently passed legislation to extend the operation of provisions in the Social Security Administration Act that give effect to Cape York Welfare Reform. The previous end date for the operation of these provisions was the end of 2013. Due to a delay in the passage of this legislation, as an interim measure, an alternative measure of income management is currently operating in the four communities. The legislative amendments, together with this Specification, allow Cape York Welfare Reform to be restored in the communities until the end of 2015.
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 one of the four participating communities. A welfare recipient is a person who is a participant in the Remote Jobs and Communities Program, or who is an eligible recipient of certain welfare payments that reflect the payments specified in section 123UF of the Social Security Administration 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 Social Security Administration 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 four participating communities and makes appropriate use of community support services. The FRC Act provides for 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 the Department of the Prime Minister and Cabinet and the Department of Human Services.
To ensure the initiative 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 2015. This is consistent with the approach taken in 2007 before the initiative started.
The consultation included meetings in all four participating communities and meetings with key government and non-government stakeholders.
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 2014
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
Amendments recently passed by Parliament, together with this Specification, extends the timeframe for income management under section 123UF of the Social Security (Administration) Act 1999 (the Social Security Administration Act) to 1 January 2016.
The purpose of the Specification is to continue the specification of 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 Social Security Administration 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 Social Security Administration Act will be recognised as a notice given by the Queensland Commission. A person is subject to the income management regime under Part 3B of the Social Security Administration Act if, amongst other things, the Queensland Commission has given the Secretary a notice requiring that the person be subject to the income management regime.
Human rights implications
Eliminating racial discrimination
This specification engages Article 2(1) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), 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
This Specification also engages 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.’[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 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.
Moreover, results of consultations conducted to date have established support for the Welfare Reforms in the four participating Cape York communities.
The Family Responsibilities Commission (FRC), a central plank of the reforms, operates through a conferencing model. In practice, this means an individual will attend a number of conferences with Local Commissioners who are respected local 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.
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 individuals, families and the broader communities.
Conclusion
The Specification is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
The Hon Kevin Andrews MP, Minister for Social Services
[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.