EXPLANATORY STATEMENT
Issued by the authority of the Minister for Human Services
Social Security (Administration) Act 1999
Social Security (Administration) (Trial – Community Body – East Kimberley Region Community Panels) Authorisation 2016
Purpose
The purpose of this Authorisation is to authorise the Kununurra Community Panel and the Wyndham Community Panel as community bodies under section 124PE of the Social Security (Administration) Act 1999 (the Act).
Background
The debit card trial established by Part 3D of the Act will test the concept of cashless welfare arrangements by disbursing particular welfare payments to a restricted bank account, accessed by a debit card which does not allow cash withdrawals.
The trial will test whether significantly reducing access to discretionary cash, by placing a significant proportion of a person’s welfare payments into a restricted bank account, can reduce the habitual abuse and associated community level harm resulting from alcohol, gambling and drugs. It will also test whether cashless welfare arrangements are more effective when community bodies are involved.
Section 124PE of the Act empowers the Minister, by legislative instrument, to authorise a body as a ‘community body’.
A community body may be incorporated or unincorporated, and must provide, or intend to provide, services relating to the care, protection, welfare or safety of adults, children or families.
This Authorisation authorises the Kununurra Community Panel and the Wyndham Community Panel as community bodies under section 124PE of the Act.
The Minister has considered the criteria in section 124PE of the Act and is satisfied that the Kununurra Community Panel and the Wyndham Community Panel intend to provide services relating to the care, protection, welfare or safety of adults, children or families.
The Kununurra Community Panel and the Wyndham Community Panel will select up to eight members to represent their respective locations to comprise the Kununurra Community Panel and Wyndham Community Panel respectively.
The Kununurra Community Panel and the Wyndham Community Panel will assess whether a decrease in a trial participant’s or voluntary participant’s restricted proportion under section 124PK of the Act is likely to contribute to community harm or undermine positive social norms.
A decrease in the restricted portion of a participant’s payment provides a larger cash proportion to participants who are supporting a safe and positive community environment.
The role of a community body under Part 3D of the Act
A community body may give the Secretary a written direction in relation to a trial participant or voluntary participant which has the effect of varying the percentage of a participant’s payment that will constitute the participant’s restricted portion.
Paragraph 124PJ(1)(a) of the Act provides that, for trial participants or voluntary participants receiving payments by instalment, the restricted portion of the participant’s payment will be 80 per cent of the gross amount of the payments. This percentage must be paid into the participant’s welfare restricted bank account. Part 3D of the Act then imposes restrictions on the goods and services than can be purchased with this amount. The participant cannot make cash withdrawals from a welfare restricted bank account.
Under paragraph 124PJ(1)(b) of the Act the remaining 20 per cent of the participant’s payment (called the ‘unrestricted portion’) will not be subject to these restrictions and can be paid into their regular bank account to be used at their discretion.
Subsection 124PJ(2) of the Act provides that, for trial participants or voluntary participants receiving payments otherwise than by instalment, the restricted portion of the participant’s payment will be 100 per cent of the gross amount of the payment, which must be paid into the participant’s welfare restricted bank account.
The default restricted portions in paragraph 124PJ(1)(a) and subsection 124PJ(2) of the Act can be varied to a percentage between 50 and 80 per cent if a community body authorised under section 124PE of the Act gives the Secretary a written direction to this effect under section 124PK of the Act.
The written direction given by the community body must reflect an agreement between the community body and the participant, and the restricted portion of the payment may only be varied again with the agreement of the participant.
If the community body and the participant no longer agree on the varied restricted portion, the community body must revoke the written direction to the Secretary. If this happens, the default restricted portion of 80 per cent (for participants subject to paragraph 124PJ(1)(a)) or 100 per cent (for participants subject to paragraph 124PJ(2)) will generally apply.
If a body ceases to be authorised as a community body, any written directions given by the body will cease to have effect on and after the day the authorisation ceases.
Community bodies also have the authority to share information with the Secretary of the Department of Social Services and the Secretary of the Department of Human Services to the extent that this is necessary for the community body to perform its role in the trial.
Under section 124PO of the Act, members, officers or employees of community bodies have the power to disclose information to and receive information from the Secretary if the information is about a trial participant or voluntary participant and relevant to the operation of the debit card trial welfare arrangements.
The Minister for Human Services has been appointed to also administer the Department of Social Services, and so pursuant to section 19A of the Acts Interpretation Act 1901 has the powers of the ‘Minister’ under Part 3D of the Act.
The Determination is a legislative instrument.
Commencement and cessation of instrument
The Authorisation commences the day after it is registered on the Federal Register of Legislation and is taken to have been repealed at the end of 30 June 2018.
Consultation
Extensive on-the-ground consultations with community representatives have been occurring in the East Kimberly region to inform the implementation of the cashless debit card, and the development of community panels.
Consultations have covered advice from community members about the identification of local and cultural protocol, key objectives, policy parameters (including percentages and boundaries), the establishment of community panels, and anticipated benefits of the trial in terms of community safety and wellbeing for vulnerable people, the identification of service gaps and servicing arrangements and the evaluation. Consultations in the East Kimberley region will continue through the 12 month implementation of the trial to ensure the community is prepared and have all necessary information and support for the trial.
Regulation Impact Statement (RIS)
This Authorisation is not regulatory in nature, will have minimal impact on business activity and will have no, or minimal, compliance costs or competition impact.
Explanation of the provisions
Section 1 states the name of the Authorisation.
Section 2 provides that the Authorisation commences on the day after it is registered on the Federal Register of Legislation.
Section 3 provides that the Authorisation is taken to have been repealed at the end of 30 June 2018. Under section 124PF of the Act the debit card trial established in Part 3D of the Act will cease on 30 June 2018.
Section 4 provides definitions for terms that are used in the Authorisation.
Any references to the Act in the Authorisation are references to the Social Security (Administration) Act 1999.
A definition of Kununurra Community Panel has been included. Kununurra Community Panel means the unincorporated body established by local leaders in Kununurra. Similarly, the definition of Wyndham Community Panel means the unincorporated body established by local leaders in Wyndham.
Section 5 provides that the Kununurra Community Panel and the Wyndham Community Panel are authorised as community bodies for the purposes of Part 3D of the Act. The effect of this is that these panels can exercise the powers and functions conferred on a community body by sections 124PK and 124PO of the Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Administration) (Trial – Community Body – East Kimberley Region Community Panels) Authorisation 2016
The Authorisation 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 debit card trial established by Part 3D of the Act will test the concept of cashless welfare arrangements by disbursing particular welfare payments to a restricted bank account, accessed by a debit card which does not allow cash withdrawals.
The trial will test whether significantly reducing access to discretionary cash, by placing a significant proportion of a person’s welfare payments into a restricted bank account, can reduce the habitual abuse and associated community level harm resulting from alcohol, gambling and drugs. It will also test whether cashless welfare arrangements are more effective when community bodies are involved.
Section 124PE of the Act empowers the Minister, by legislative instrument, to authorise a body as a ‘community body’.
A community body may be incorporated or unincorporated, and must provide, or intend to provide, services relating to the care, protection, welfare or safety of adults, children or families.
This Authorisation authorises the Kununurra Community Panel and Wyndham Community Panel as a community body under section 124PE of the Act.
The Minister has considered the criteria in section 124PE of the Act and is satisfied that the Kununurra Community Panel and Wyndham Community Panel intend to provide services relating to the care, protection, welfare or safety of adults, children or families.
The Kununurra Community Panel and Wyndham Community Panel will assess applications for a decrease in the restricted proportion under section 124PK of the Act against a set of criteria which indicates whether the applicant contributes to community harm or undermines positive social norms.
A decrease in the restricted portion of a participant’s payment provides a larger cash proportion to participants who are supporting a safe and positive community environment.
Human rights implications
Objectives
The Objectives of Part 3D of the Act and this Authorisation are to:
(a) reduce the amount of certain restrictable payments available to be spent on alcoholic beverages, gambling and illegal drugs; and
(b) determine whether such a reduction decreases violence or harm in the Region; and
(c) determine whether such arrangements are more effective when community bodies are involved; and
(d) encourage socially responsible behavior.
In other words, the debit card has the objective of reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behavior, and reducing the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments.[1]
The community panel supports people who may request access to a higher proportion of ‘unrestricted’ funds. It does so on a case by case basis with consideration to the operational guidelines.
The community panel will consider applications by drawing on local knowledge to authenticate that, in granting the request, the applicant will not compromise the objectives of the trial. Panel decisions may encourage participants to work with local service providers to support and further reinforce the objectives of the trial.
In the Trial Area, there is clear evidence of the harm caused by alcohol in the community. According to WA Police data, in 2013-14 in Western Australia there were 1,456 offences against the person for every 100,000 people. The Kimberley region had offence rates against the person 4.5 times that of Western Australia overall.[2]
In 2012-13, there were 100 reported incidents of family violence per 1,000 people in the Kimberley, as compared to the next highest of rate of family violence which was 43 per 1,000.[3]
General Safeguards
A number of general safeguards which help protect human rights have been incorporated in the debit card trial. First, the roll-out of the trial in trial areas has been subject to an extensive consultation process.
Second, in accordance with section 124PK of the Act and this Authorisation, community bodies will have the power to give the Secretary a written direction to vary the percentage of funds that a person has restricted, subject to that person’s agreement. This will provide an ongoing mechanism to ensure there is flexibility to treat individual cases differently.
Third, the trial of cashless welfare arrangements will be subject to an independent, comprehensive evaluation which will consider the impacts of limiting the amount of welfare funds that may contribute to community level harm. The evaluation will use both quantitative and qualitative information to explore perceived and measurable social change in trial communities.
Finally, subsection 124PF(1) of the Act specifies the trial will commence on 1 February 2016 and end on 30 June 2018. The policy intention is that the trial will only run for 12 months in each trial area. The clause acts as an appropriate and effective safeguard, as Parliament must amend the Act to continue the trial beyond 30 June 2018.
The right to a private life
Article 17 of the International Covenant on Civil and Political Rights sets out the right to a private life. It prohibits arbitrary or unlawful interferences with an individual’s privacy, family, correspondence or home.
The debit card trial seeks to achieve the legitimate objective of reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behavior, and reducing the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments.
In order to achieve these objectives, the trial will place 80 per cent of restrictable payments received by a person on a trigger payment into a restricted bank account. The funds held in this bank account will not be able to be withdrawn as cash or spent on alcohol or gambling products. There is a clear rational connection between these objectives and the restrictions on the right to a private life: the restrictions on the purchase of alcohol, illegal drugs and gambling products by trial participants in the Trial Area are designed to reduce alcohol fuelled violence and harm, and encourage socially responsible behaviour.
This Authorisation authorises the Kununurra Community Panel and Wyndham Community Panel as community bodies under section 124PE of the Act. In doing so, it establishes a mechanism through which applications for a decrease in the restricted proportion under section 124PK of the Act can be assessed against a set of criteria which indicates whether the applicant contributes to community harm or undermines positive social norms. This is the only routine mechanism through which a trial participant can alter the percentage of restrictable payment that is restricted. As such, this Authorisation could be said to limit a person’s choice in how they access and spend their money and engage the right to a private life. This limitation on a person’s right to a private life is reasonable and proportionate given the extensive harm caused by alcohol in the Trial Area as discussed above under the section titled ‘Objectives’. There are also effective community safeguards over the extent of the restrictions imposed. To protect the information of the applicant, panel members will be required to sign a non-disclosure confidentiality agreement with the Department of Social Services.
The right to privacy
The Authorisation also engages the right to privacy. Community bodies will also have the power to vary the percentage of funds that a person has restricted, subject to that person’s agreement (section 124PK). To allow this provision to operate, community bodies will need to be able to advise the Department of Human Services to change the percentage of funds a person has restricted.
This information sharing is allowed under section 124PO of the Act. Section 124PO of the Act does not provide a blanket exemption from privacy laws for Government, or any community body. They only allow the sharing of information that is necessary for the trial to be implemented. This means there are still safeguards in place to protect individual privacy.
Government will still be required to act in accordance with privacy laws and the Australian Privacy Principles (APPs). The APPs set out strict rules around how personal information can be used. For example, they prohibit the disclosure of personal information for direct marketing. The Kununurra Community Panel and Wyndham Community Panel will only use trial participant’s and voluntary participant’s information with the participant’s consent.
Any limitation on a person’s right to privacy is reasonable and proportionate given the extensive harm caused by alcohol in the Trial Area as discussed above under the section titled ‘Objectives’. There are also effective community safeguards over the extent of the restrictions imposed.
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 United Nations Committee of Economic, Social and Cultural Rights (the UN Committee) has stated that implementing this right requires a country, within its maximum available resources, to 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 form of education’.
The trial or this Authorisation will not detract from the eligibility of a person to receive welfare nor reduce the amount of a person’s welfare entitlement. This Authorisation will only provide a means for trial participants to alter the percentage of their restrictable payment that is restricted Instead, the trial restricts the ability of trial participants from spending money on alcohol, gambling and illegal drugs. The UN Committee has stated that the right to social security encompasses the right to access and maintain benefits ‘in cash or in kind’. In other words, the trial does not detract from situations in which someone has the right to social security, such as unemployment and workplace injury, and family and child support; it simply supports a person further once they have achieved their right to receive social security.
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 realisation of this right’. Further to this, article 11(2) of the ICESCR states that ‘measures, including specific programmes,’ should be taken in ‘recognising the fundamental right of everyone to be free from hunger’.
The trial does not limit this right for affected people in the Trial Area. This Authorisation does not alter the amount of any payment but only provides a mechanism for trial participants to alter the percentage of their restrictable payment that is restricted. In fact, it arguably promotes the right to an adequate standard of living. When making a decision whether to decrease the proportion of a trial participant’s restrictable payment the community body will consider criteria that indicate whether a person contributes to harm that undermines the care, protection, welfare and safety of adults, children and families. By doing this, the community body will consider individual need and circumstances and help encourage trial participants to act in accordance with positive social norms, including ensuring money is being spent on essential items which help maintain an adequate standard of living instead of alcohol and gambling.
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’.
By restricting the amount of money people can spend on alcohol, gambling and illegal drugs and limiting how trial participants can alter the percentage of their restrictable payment that is restricted, the trial and this Authorisation may engage a person’s right to self-determination. As outlined above, this limitation on how social security payments are spent is to ensure that vulnerable people are protected from abuse of these substances, and associated harm and violence. Any limitation of this right is therefore reasonable and proportionate.
The rights of equality and non-discrimination
The rights of equality and non-discrimination are provided for in several of the seven core international human rights treaties to which Australia is a party, most relevantly the International Covenant on Civil and Political Rights 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 a 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 rights to equality and non-discrimination are not directly limited by the trial. This is because, as set out in this Authorisation, anyone residing in the Region who receives a trigger payment, apart from those exempted, will become a trial participant and will be able to apply to the Kununurra Community Panel and Wyndham Community Panel. The trial is not targeted at people of a particular race, gender or cultural characteristic but to welfare recipients who meet particular criteria. People in the Trial Area will also be able to volunteer for the trial. A community body will be able to vary the proportion of a person’s rate of restriction (although not to less than 50 per cent), and this function will not be based on any racial or cultural characteristic of a person.
While the trial and this Authorisation do not directly limit the rights to equality and non-discrimination, it may indirectly limit these rights. In the Trial Area, Indigenous people will likely make up around 83% of the total income support payment population who will become trial participants. Women will likely comprise around 57% of projected trial participants and participants receiving the Disability Support Pension likely comprise around 26% of projected trial participants.[4] The trial applies to everyone on working age welfare payments rather than just individuals on specific welfare payments.
It is acknowledged that Indigenous Australians comprise a large proportion of those likely to apply to the Kununurra Community Panel and Wyndham Community Panel as established by this Authorisation. However, all trial participants can apply to the Panel. The Trial Area has been chosen as a trial location based on objective criteria, ‘such as high levels of welfare dependence and community harm, as well as the outcomes of comprehensive consultation with prospective communities.’[5] These criteria clearly relate to the legitimate objectives of this Authorisation. Therefore, there is a rational connection between any limitation on the right to social security and the objectives of this Authorisation.
Finally, given the objectives of the trial and this Authorisation and the scale of unacceptable harm in The Trial Area as discussed above in the section titled ‘Objectives’, any limitation on the right to equality and non-discrimination is reasonable and proportionate.
Conclusion
This Authorisation is compatible with human rights. A trial of cashless welfare arrangements in the Trial Area 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 dependents. 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, reducing violence and harm, 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. Alan Tudge MP, Minister for Human Services
[1] Social Services Legislation Amendment (Debit Card Trial) Bill 2015, Explanatory Memorandum, Statement of Compatibility, p. 4.
2 Western Australia Police, Crime Statistics, available at https://www.police.wa.gov.au/Crime/Statistics accessed 20/02/2016.
3 Western Australia Department of Child Protection and Family Support, Western Australia’s Family & Domestic Violence Prevention Strategy to 2022, Achievement Report to 2013 (2013).
[4] Department of Human Services administrative data (DSS Blue Book dataset) as at 27/11/15.
[5] Social Services Legislation Amendment (Debit Card Trial) Bill 2015, Explanatory Memorandum, Statement of Compatibility, p. 3.