EXPLANATORY STATEMENT
Social Security (Administration) (Recognised State/Territory Authority — Qld Family Responsibilities Commission) Determination 2013
Summary
The Social Security (Administration) (Recognised State/Territory Authority — Qld Family Responsibilities Commission) Determination 2013 (the Determination) is made for the purposes of Part 3B of the Social Security (Administration) Act 1999 (the Act).
The Determination is made by the Minister for Social Services.
Background
Income Management
Income management, set up under Part 3B of the Act, aims to support vulnerable individuals. A person subject to income management has an income management account. A proportion of the person’s welfare payments is directed to the person’s income management account. Income managed funds cannot be used for excluded items, such as alcohol, tobacco, pornography and gambling products. Amounts may be debited from the person’s income management account for the purposes of enabling the Secretary to take action directed towards meeting the priority needs of the person and/or the person’s children if appropriate.
Part 3B of the Act currently includes, among other things, measures to income manage individuals referred by a child protection officer, long-term recipients of welfare payments, disengaged youth, people assessed as vulnerable and people who voluntarily opt-in to income management.
Subdivision A of Division 2 of Part 3B sets out the various situations in which a person is subject to income management. Section 123UFAA provides that a person is subject to income management at a particular time (the test time) if, among other things, before the test time, an officer or employee of a recognised State/Territory authority has given the Secretary a written notice requiring that the person be subject to income management, and, at the test time, the State or Territory is a recognised State or Territory.
The term recognised State/Territory authority has the meaning given by section 123TGAA of the Act. Subsection 123TGAA(1) provides that the Minister may, by legislative instrument, determine that a specified department, part of a department, body or an agency of a State or Territory is a recognised State/Territory authority for the purposes of Part 3B.
The Qld Family Responsibilities Commission
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.
To date, 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.
Currently, a person can be subject to income management under Cape York Welfare Reform only until 1 January 2014 after a decision by the Commission. Legislative amendments proposed in the Social Services and Other Legislation Amendment Bill 2013 currently before parliament propose extending this timeframe to 1 January 2016. However, pending passage of that measure, income management under the Cape York welfare reform measure of income management provided for by section 123UF of the Act must cease from 1 January 2014, including where under the Commission’s decision, a person would otherwise have continued to be subject to income management beyond this date.
Ending the income management of a number of persons unexpectedly in this way would lead to undesirable outcomes, and would adversely affect the progress made under the Cape York welfare reform. Instead, it is possible for a person to be subject to the income management regime where a State or Territory authority recognised by the relevant Minister gives a written notice to the Secretary requiring that the person be subject to income management under section 123UFAA of the Act. This alternative measure of income management provides an alternative basis to avoid this adverse outcome in the interim.
Purpose
The purpose of the Determination is to:
a) Determine that Queensland is a recognised State or Territory, such that a Queensland authority may be recognised;
b) Determine that the Qld Family Responsibilities Commission is a recognised State/Territory authority for the purposes of Part 3B of the Act; and
c) Determine that the deductible portion of an instalment of a category I welfare payment is 60, 75 or 90 per cent, matching the percentage set out in a notice given by the Qld Family Responsibilities Commission in order to continue similar deductions from welfare payments that would otherwise apply under the Cape York measure of income management.
As a recognised State/Territory authority, an officer or employee of the Qld Family Responsibilities Commission may give the Secretary a written notice requiring that a person be subject to income management under section 123UFAA of the Act.
The Determination is a legislative instrument.
Explanation of Provisions
Section 1 states the name of the Determination.
Section 2 states that the Determination commences on the day after the Determination is registered.
Section 3 provides that the determination is repealed on the 28th day after the Social Services and Other Legislation Amendment Act 2014 receives the Royal Assent, and income management may continue under the Cape York measure of income management. The 28 day period allows time for administrative steps to be taken by the Department of Human Services to transition affected persons.
Section 4 contains definitions that are used in the Determination.
Section 5 provides that Queensland is a recognised State or Territory for the purposes of Part 3B of the Act.
Section 6 provides that the Qld Family Responsibilities Commission is a recognised State/Territory authority for the purposes of Part 3B of the Act.
Section 7 provides that for paragraph 123XPAA(3)(b) of the Act, the percentages are 60, 75 and 90 percent, and the percentage that applies in relation to an instalment of a category I welfare payment is the percentage that is equal to the percentage set out in a notice in relation to the person that is given to the Secretary by an officer or employee of the Qld Family Responsibilities Commission.
Consultation
Consultation on the Determination was undertaken with the Queensland Department of Aboriginal and Torres Strait Islander and Multicultural Affairs as well as with the Commonwealth Department of Prime Minister and Cabinet and the Department of Human Services as the service delivery agency.
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
This Legislative Instrument is the Social Security (Administration) (Recognised State/Territory Authority — Qld Family Responsibilities Commission) Determination 2013 (the Determination).
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
Section 123TGAA of the Social Security (Administration) Act 1999 (the Act) provides that the Minister may, by legislative instrument, determine that a specified department (or part of a department), a body or an agency of a State or Territory is a recognised State/Territory Authority for the purposes of Part 3B of the Act. The Determination is made under this section, specifying the Family Responsibilities Commission (the Commission) as a recognised State Authority.
The Determination also determines that Queensland is a recognised State or Territory, such that a Queensland authority may be recognised, and determines that the deductible portion of an instalment of a category I welfare payment is 60, 75 or 90 per cent, in order to match deductions from welfare payments that would otherwise apply under the Cape York measure of income management.
The Family Responsibilities Commission Act 2008 (Qld) established the Family Responsibilities Commission which commenced operating on 1 July 2008. The Commission is an initiative of the partnership between the four Cape York communities of Aurukun, Coen, Hope Vale and Mossman Gorge, the Queensland and Australian Governments and the Cape York Institute for Policy and Leadership.
The purpose of the Commission is to support the restoration of socially responsible standards of behaviour and to assist community members to resume and maintain primary responsibility for the wellbeing of their community and the individuals and families within their community.
One function of the Commission is to issue income management notices upon particular individuals so that a percentage of certain income support and family payments can be spent on priority goods and services.
The Commission has been giving notices for income management for several years however, this instrument will change the mechanism through which DHS can accept a referral.
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.
Under this measure of income management a percentage of a person’s income support payment, as specified by the Commission, is directed towards priority items, such as food, housing, clothing and utilities, and cannot be spent on alcohol, tobacco, pornographic material and gambling products. The flexible percentage will allow the Commission to deal with individuals who, despite having come before the Commission repeatedly, have not changed their behaviour. It was requested by the Commission, the Cape York Institute and the Queensland Government.
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’. That right requires a country to, within its maximum available resources, provide access to benefits, whether in cash or in kind, in order to secure protection from:
- lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member;
- unaffordable access to health care; and
- insufficient family support, particularly for children and adult dependants.
Income management does not impair or limit a person’s right to social security. Income managed has no impact on the amount of social security a person is entitled to receive, but provides a mechanism to ensure that identified recipients of social security entitlements use a proportion of their entitlement (in this case as specified by the Commission) to acquire essential items for self-maintenance and to support their dependants, and prevents them from using these funds for excluded goods, specifically alcohol, tobacco, pornography or gambling.
This spending limitation supports the objective of this human right, as it ensures people direct a proportion of their funds to secure protection against deprivation for themselves and their dependants.
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 this measure of income management, 60, 75 or 90 per cent of a person’s income support and family payments are directed to pay for life essentials. Income management is a tool to stabilise a person’s circumstances and ease immediate financial stress. It ensures that money is available for priority goods such as food, clothing and housing, and provides assistance to help people to budget. Income management supports this right by ensuring people have appropriate resources available to maintain an adequate standard of living, by ensuring a proportion of their welfare payments are directed towards the essential items specified in this part of the convention.
The rights of children
By ensuring that a portion of welfare payments are used to cover essential goods and services, income management can improve living conditions for the children of welfare payment recipients. It advances the right of children to benefit from social security, have access to education, 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 International 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’.
Under this measure a specified percentage of a person’s welfare payments must be spent on priority goods and services such as food and rent. While this measure does limit a person’s ability to freely dispose of all of their resources it does not impact on their right to freely pursue their economic, social or cultural development. This limitation is to ensure that the essential needs of vulnerable people are met, and provide them with more financial stability, so they can better pursue their economic, social and cultural development.
The limitation of Rights under the ICESCR
Article 4 of the ICESCR provides that a State may limit the rights outlined in the Convention ‘only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’.
As noted in the above paragraphs, the income management scheme enabled by the Determination does not unreasonably limit a person’s rights to freely dispose of their resources. The purpose of these limitations is to help people stabilise their circumstances and address issues of vulnerability, particularly substance abuse issues. These limitations are consistent with the nature of the rights outlined in the ICESCR, and are also aimed at promoting general welfare.
The rights to privacy
Article 17 of the ICCPR provides that no one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence…
Income management does not unnecessarily impact on a person’s privacy. The Department of Human Services ensures that personal information is appropriately managed. Income management is not an unlawful interference with a person’s privacy or family, as the income management program complies with both National and international laws.
The rights of persons of a particular race or ethnic origin
Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
This has been further explained in General Recommendation 14 (ICERD) that “a distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms. Differential treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purpose of the Convention, are legitimate or fall within the scope of article 1.4. An action will be contrary to the convention if it is an “unjustifiable disparate impact upon a group distinguished by race, colour, descent or national or ethnic origin”.
The major objectives of this Determination, is to provide the Commission with a tool to support the restoration of socially responsible standards of behaviour and to assist community members to resume and maintain primary responsibility for the wellbeing of their community and the individuals and families within their community.
As noted in this Statement, the measure of income management enabled by this Determination does not impair any person’s enjoyment of human rights, so it cannot be considered racially discriminatory. However, to the extent that this measure of income management may have a greater impact on the human rights of people of a certain race or ethnic background (i.e. if the measure can be characterised as indirectly discriminatory in its application), it is a reasonable and proportionate measure aimed at achieving a legitimate objective.
If the Commission makes an income management notice for a person, that person will be referred to the Department of Human Services for income management. The Commission will ensure people will only be referred for income management where it is a reasonable and proportionate response to the person’s circumstances. In fulfilling the functions of the Commission, the staff will talk with people and discuss their problems, and determine appropriate actions to address dysfunctional behaviours, which may include income management referrals or referrals to community support services
The requirement that a portion of a person’s income managed funds be directed to essential goods is compatible with the rights outlined in the ICESCR and is intended to promote general welfare.
Conclusion
The measure of income management enabled by this Determination only limits a person’s freedom of expenditure where it is reasonable, necessary and proportionate to achieving a legitimate objective. The measure will assist community members to resume and maintain primary responsibility for the wellbeing of their community and the individuals and families within their community. This Determination will assist the Queensland Government to reduce hardship and deprivation for people and their dependants, and assist in encouraging socially responsible behaviour.
The Hon Kevin Andrews MP, Minister for Social Services