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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (REPEAL OF CASHLESS
DEBIT CARD AND OTHER MEASURES) BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Social Services, the Hon Amanda Rishworth MP)
AMENDMENTS TO THE SOCIAL SECURITY (ADMINISTRATION) AMENDMENT
(REPEAL OF CASHLESS DEBIT CARD AND OTHER MEASURES) BILL 2022
OUTLINE
These government amendments to the Social Security (Administration) Amendment
(Repeal of Cashless Debit Card and Other Measures) Bill 2022 (the Bill) respond to
matters arising from the Senate Community Affairs Legislation Committee's inquiry
into the Bill (the Senate Inquiry) and continuing consultations with key stakeholders.
Specifically, the amendments update the Bill to allow persons who reside in areas
where cashless welfare arrangements are currently operating (other than the Northern
Territory and Cape York area) to volunteer for enhanced income management
(enhanced IM) under a new Part 3AA of the Social Security (Administration) Act 1999
(Administration Act) from 6 March 2023.
The amendments respond to concerns about the limited functionality of the
BasicsCard by ensuring that a person who was on the CDC and wishes to volunteer
for income management (IM) will not return to the BasicsCard. To address this,
individuals transitioning off CDC onto IM will now transition to enhanced IM under new
Part 3AA of the Administration Act. Individuals will be provided with a BasicsCard bank
account that ensures a modern technological functionality using a contemporary card.
Contemporary Card
The Senate Inquiry report raised concerns about the limited functionality and inferior
technology of the BasicsCard, which is the basis of IM, compared to the functionality
of the CDC.
The amendments respond to these concerns by ensuring that a person who was on
the CDC program and wishes to volunteer for IM will not return to the BasicsCard,
but will have a contemporary card with more modern functionality, including accessing
more merchants and allowing for BPAY and online shopping, better supporting money
management. Individuals transitioning off voluntary CDC to voluntary IM will now
transition to enhanced IM under new Part 3AA of the Administration Act.
Rather than return to the use of stored value cards, individuals will be provided with a
BasicsCard bank account and contemporary card that ensures a modern technological
functionality. This provides continuity and a consistent approach for persons
transitioning to enhanced IM from CDC.
Entrants to voluntary enhanced IM will have a BasicsCard bank account and receive
support from Services Australia, consistent with feedback provided by stakeholders to
the Senate Inquiry. Support from Services Australia will include all aspects of client
interface such as account enquiries and replacement cards. This is similar to the
services provided by Services Australia for the BasicsCard.
Financial impact statement
The amendments will require the procurement and development of a card to support
the enhanced IM program. These costs are subject to commercial negotiations and
are not for publication.
Definitions
In this supplementary explanatory memorandum:
• Administration Act means the Social Security (Administration) Act 1999.
• Bill means the Social Security (Administration) Amendment (Repeal of
Cashless Debit Card and Other Measures) Bill 2022.
• CDC or CDC program means the cashless welfare arrangements established
by Part 3D of the Administration Act.
• closure day means the day that CDC will be closed to new entrants, that is,
the later of 19 September 2022 and the day after the day the Bill is given the
Royal Assent.
• Department means the Commonwealth Department of State administering
enhanced IM arrangements, which is currently the Australian Government
Department of Social Services
• enhanced IM means the enhanced income management regime under
proposed Part 3AA of the Administration Act
• excluded Part 3B payment nominee has the same meaning as in section
123TC of the Administration Act.
• Family Assistance Act means the A New Tax System (Family Assistance) Act
1999.
• Family Assistance Administration Act means the A New Tax System (Family
Assistance) (Administration) Act 1999.
• IM means the income management regime established by Part 3B of the
Administration Act.
• National Emergency Declaration Act means the National Emergency
Declaration Act 2020.
• Part 3B payment nominee has the same meaning as in section 123TC of the
Administration Act.
• Secretary means the Secretary of the Department.
• Social Security Act means the Social Security Act 1991.
• voluntary enhanced IM agreement means a written voluntary enhanced
IM agreement entered into by a person with the Secretary under section 123SF.
Description of Amendments
Amendment 1 will insert a new table item 2B into the table in clause 2 of the Bill to
commence new Part 1B of Schedule 1 of the Bill (inserted by Amendment 5).
New Part 1B inserts into the Administration Act new arrangements for voluntary
enhanced IM in CDC areas where CDC is currently operating. New Part 1B will
commence immediately after Part 1 of Schedule 2 of the Bill commences, that is,
immediately after the first moment of the latter of 19 September 2022 and the day after
the Bill receives Royal Assent.
Amendment 2 will amend item 41 of Schedule 1 to the Bill to omit the phrase
'the closure day' and substitute it with the phrase '6 March 2023'.
Item 41 inserts new subsection 124PH(1A) in the Administration Act to legislatively
cease voluntary participation in CDC. The Bill currently provides that the Secretary
cannot notify a person (under subsection 124PH(5)) that they are voluntarily subject
to cashless welfare arrangements after the closure day, being the latter of
19 September 2022 and the day after the Act receives the Royal Assent.
Amendment 2 changes the date from which the Secretary's power to issue
subsection 124PH(5) notices ceases to 6 March 2023. People in CDC sites (other than
the Cape York area) will be able to volunteer for CDC under section 124PH until the
end of 5 March 2023.
From 6 March 2023, in the place of CDC restrictions, new volunteers in CDC sites
other than the Northern Territory and Cape York area will be able to volunteer to
become subject to enhanced IM by entering a voluntary enhanced IM agreement
under new section 123SE in Part 3AA of the Administration Act (see Amendment 5).
All volunteers in enhanced IM will be able to access a BasicsCard bank account with
an associated debit card that uses technology superior to existing the IM BasicsCard.
Amendment 3 will omit item 44 of Schedule 1 to the Bill (which repeals current
paragraph 127(4)(aa) of the Administration Act) and substitutes it with a new item 44.
Existing paragraph 127(4)(aa) of the Administration Act provides that a decision to
make a payment under paragraph 123UF(4)(a) or subsection 123UP(2) of the
Administration Act is not reviewable. These provisions - dealing with payments to
welfare-restricted bank accounts for people transitioning from traditional IM in Part 3B
to CDC in Part 3D - are no longer required.
Under this amendment new item 44 will still repeal existing paragraph 127(4)(aa), but
replace it with a new paragraph which provides that 'a decision to give a notice under
subsection 123SE(3)' may not be reviewed by the Secretary.
New subsection 123SE(3) requires the Secretary to give a notice to a person who has
made a request to cease to be subject to the enhanced IM regime. These decisions
should not be reviewable by the Secretary because they are initiated at the request of
the volunteer. Accordingly, review processes would generate an unnecessary
administrative burden given that the person could again become a volunteer by
entering a voluntary enhanced IM agreement under new section 123SF (see
Amendment 5). Accordingly, this amendment is reasonable, necessary and
proportionate to its purpose.
Amendment 4 will omit item 46 of Schedule 1 to the Bill (which repeals current
paragraph 144(l) of the Administration Act) and will substitute it with a new item 46.
Existing paragraph 144(l) of the Administration Act provides that a decision to make a
payment under paragraph 123UF(4)(a) or subsection 123UP(2) of the Administration
Act is not reviewable. These paragraphs - dealing with payments to welfare-restricted
bank accounts for people transitioning from traditional IM in Part 3B to CDC in Part 3D
- are no longer required.
Under this amendment, new item 46 will still repeal the existing paragraph 127(4)(aa)
but will replace it to provide that 'a decision to give a notice under subsection 123SE(3)'
may not be reviewed by the Administrative Appeals Tribunal.
New subsection 123SE(3) requires the Secretary to give a notice to a person who has
made a request to cease to be subject to the enhanced IM regime. These decisions
should not be reviewable by the Secretary because they are initiated at the request of
the volunteer. Accordingly, review processes would generate an unnecessary
administrative burden given that the person could again become a volunteer by
entering a voluntary enhanced IM agreement under new section 123SF (see
Amendment 5). Accordingly, this amendment is reasonable, necessary and
proportionate to its purpose.
Amendment 5 will insert a new Part 1B into the Bill providing for Stage 1B
amendments, which give effect to voluntary enhanced IM. The new Part 1B of the Bill
will amend the National Emergency Declaration Act and the Administration Act.
National Emergency Declaration Act
Amendment 5 inserts new item 48H to amend paragraph (zbb) into the definition of
'national emergency law' in the Definitions section (section 10) of the National
Emergency Declaration Act.
New paragraph (zbb) will provide that new section 123SP of the Administration Act
(also inserted by amendment 5 - see below) is a national emergency law for the
purposes of the National Emergency Declaration Act.
The definition of 'national emergency law' is used in the National Emergency
Declaration Act as part of the test for the Prime Minister to request a declaration of a
national emergency and to request the variation of a declaration to extend the duration
of an emergency. In addition, the definition provides an authoritative list of provisions
across the statute book that may be enlivened, or the operation of which may be
modified, while a national emergency is in force. The fact that a provision is listed in
the definition of national emergency law in the National Emergency Declaration Act
does not otherwise affect the interpretation or operation of the provision.
This amendment is necessary to operationalise new subparagraph 123SP(4)(a)(iii),
which allows the Secretary to vary the percentages the qualified and unqualified
portions under subsection 123SP(3) in certain circumstances. Relevantly, qualified
percentages may be varied if the Secretary is satisfied that the person is unable to use
the person's debit card which is attached to the person's BasicsCard bank account or
is unable to access their BasicsCard bank account as a direct result of a declared
national emergency (where the applicable national emergency declaration remains
in force).
Administration Act
Amendment 5 also inserts new items 48H, 48J, 48K, 48L and 48M to give effect to
the voluntary enhanced IM arrangements in proposed new Part 3AA of the
Administration Act. The items respectively make amendment relating to volunteers
which: add to the simplified outline for new Part 3AA; insert new definitions; establish
eligibility criteria for voluntary enhanced IM; add welfare payment splitting to enable
portions to be directed to priority needs.
Item 48J of the Bill will amend the simplified outline in section 123SA of the
Administration Act in recognition of a person being able to become subject to the
enhanced IM regime because they voluntarily agree to be subject to the enhanced
IM regime.
Item 48K in the Bill to new definitions into Part 3AA of the Act that relate to the new
enhanced voluntary IM provisions. Specifically, the item will insert the definitions set
out below into new section 123SB of Part 3AA.
balance of the qualified portion, of a category G welfare payment, means:
(a) if a deduction is to be made from, or an amount is to be set off against,
the payment under:
(i) section 61, 61A or 238 of this Act; or
(ii) section 1231 of the Social Security Act; or
(iii) section 84, 84A, 92, 92A, 225, 226, 227 or 228A of the Family
Assistance Administration Act;
the amount of the qualified portion of the payment less the amount of the
deduction or the amount of the set-off; or
(b) in any other case--the amount of the qualified portion of the payment.
This term is used in new sections 123SP, 123SQ and 123SR to recognise the portion
of a welfare payment that will be deposited into a person's BasicsCard bank account
once deductions and set-offs are made against welfare payments that are to be used
for the recipients priority needs such as food, shelter, clothing and utility bills.
The example below illustrates how the definition will work in practice.
EXAMPLE:
Jay is subject to voluntary enhanced income management and is entitled to a category
G welfare payments of an amount totalling $1000 per fortnight. Jay has set up a
Centrepay or RDS deduction of $200 per fortnight for rent. Jay's qualified portion and
unqualified portion of the category G welfare payments are each 50% or $500 per
fortnight.
After Jay's rent deduction, Services Australia will pay the balance of the qualified
portion of Jay's category G welfare payments--being an amount of $300--into Jay's
BasicsCard bank account while the remaining $500 will be paid into Jay's normal bank
account for discretionary spending.
The definitions for 'Bundaberg and Hervey Bay area' 'Ceduna area',
'East Kimberley area', 'Goldfields area' and 'Local Government Areas' duplicate
the definitions for the same terms as they appear in Part 3D of the Administration Act.
This will ensure that voluntary CDC participants in these areas can transition smoothly
to the enhanced IM regime and other people in these CDC regions can access the
enhanced IM arrangements on the same terms.
The definition of 'category F welfare payment' will identify the type of welfare
payment that a person must receive in order to enter voluntary enhanced IM.
This definition of 'category G welfare payment' will identify the types of welfare
payment that a person that will be subject to welfare quarantining for volunteers.
If a payment is not mentioned in this above list, 100% of the payment will be outside
of Part 3B and paid in full to the recipient.
The following definitions are included in section 123SB to provide pointers to specified
sections for their substantive meaning:
qualified portion of a category G welfare payment, which has the meaning
given by new section 123SP (see below).
unqualified portion of a category B welfare payment, which has the meaning
given by new section 123SP (see below).
voluntary enhanced income management agreement, which has the
meaning given by new section 123SF (see below).
Item 48L inserts 4 new substantive provisions into Part 3AA which determine,
respectively, when a person is subject to voluntary enhanced IM (section 123SE);
how a person may enter a voluntary enhanced IM agreement (section 123SF);
the duration of voluntary enhanced IM agreements (section 123SG); and how a person
may terminate their voluntary enhanced IM agreement (section 123SH).
Persons subject to the enhanced IM regime--volunteers
New section 123SE establishes the criteria for persons who will be subject to
enhanced IM regime because they have volunteered for welfare quarantining.
Under this amendment, there are two circumstances where a person may become
subject to enhanced IM:
• firstly, a person will become subject to the enhanced IM regime where they
have entered an enhanced IM agreement and such an agreement is in force in
relation to them (paragraph 123SE(1)(a)).
• secondly, a person will become subject to enhanced IM if they were a voluntary
CDC participant under section 124PH of the Administration Act immediately
before 6 March 2023, in which case, they will be automatically transitioned to
the new regime (paragraph 123SE(1)(b)).
Paragraph 123SE(1)(a) is equivalent to section 123UFA that provides for persons to
be subject to IM under Part 3B of the Administration Act.
Existing CDC volunteers in the Northern Territory will be transitioned to enhanced IM
regime on 6 March 2023 but, after that date, new volunteers in the Northern Territory
will only be able to access voluntary IM under Part 3B of the Administration Act. In the
Cape York area, all voluntary quarantining is dealt with through the FRC. This outcome
is due to the provisions in sections 123SF and 123SG which limit voluntary enhanced
IM agreements to people in the Ceduna area, the East Kimberley area, the Goldfields
area or the Bundaberg and Hervey Bay area.
Where a person is transitioned into voluntary enhanced IM under paragraph
123SE(1)(b), subsection 123SE(2) provides that they can ask the Secretary that they
cease to be subject to the new regime. This allows former voluntary CDC participants
to ask to cease to be subjected to enhanced IM.
Under subsection 123SE(3), the Secretary must respond by giving the volunteer a
notice stating that they cease to be subject to the enhanced IM regime.
The Secretary's notice must be given no later than 7 days after the volunteer's request.
The notice will have effect accordingly (subsection 123SE(4)).
New subsection 123SE(5) confirms that the Secretary's notice is not a legislative
instrument. This position is merely declaratory of the law and does not provide an
exemption to legislative instrument status under the Legislation Act 2003.
Subsection 123SE(6) makes it clear that cessation under subsection 123SE(3) does
not prevent paragraph 123SE(1)(a) from applying in relation to the person at a later
time so that they may re-enter the enhanced IM regime on a voluntary basis if they
qualify and wish to do so.
Voluntary enhanced IM agreement
New section 123SF sets out the requirements for a voluntary enhanced IM agreement.
It is equivalent to section 123UM, which provides for voluntary IM agreements under
Part 3B of the Administration Act. Individuals may only enter into a voluntary enhanced
IM agreement if they reside within certain former CDC program areas.
Subsection 123SF(3) provides that the Secretary can only enter into a voluntary
enhanced IM agreement with a person if:
(a) the person is an eligible recipient of a category F welfare payment;
(b) the person's usual place of residence is within the Ceduna area, the East
Kimberley area, the Goldfields area or the Bundaberg and Hervey Bay area;
(c) if the person has a Part 3B payment nominee--that nominee is subject to
enhanced IM (under Part 3AA) or is subject to IM (under Part 3B).
Subsection 123SF(4) further provides that the Secretary must not enter into a
voluntary enhanced IM agreement with a person if:
(a) the person is subject to the IM regime under Part 3B; or
(b) during the 12-month period ending when the voluntary enhanced IM agreement
is to come into force, there were 4 occasions on which previous voluntary
enhanced IM agreements relating to the person were terminated under
subsection 123SH(3).
Voluntary enhanced IM will only be available to former CDC participants on an interim
basis to ensure that they are not placed on the BasicsCard with limited functionality.
Duration of voluntary enhanced income management agreement
New section 123SG sets out the requirements for a voluntary enhanced IM agreement,
including when the agreement comes into force and when it remains in force. It is
equivalent to section 123UN, which deals with the duration of voluntary IM agreements
under Part 3B of the Administration Act.
Subsection 123SG(1) provides that the agreement will:
(a) come into force so long as each of the following applies at that time:
(i) the person is an eligible recipient of a category F welfare payment;
(ii) the person's usual place of residence is within the Ceduna area, the
East Kimberley area, the Goldfields area or the Bundaberg and
Hervey Bay area;
(iii) if the person has a part 3B payment nominee--that nominee is subject
to enhanced IM (under Part 3AA) or is subject to IM (under Part 3B).
(iv) the person is not subject to traditional IM under Part 3B of the
Administration Act; and
(b) remains in force until:
(i) the voluntary enhanced IM agreement is terminated under section
123SH unless subparagraph (ii) applies; or
(ii) if the agreement specifies a period of operation (which must be at least
13 weeks) and the agreement has not been terminated under section
123SH before the end of that period--the end of that period of
operation.
Subsection 123SG(2) provides that the Secretary can enter subsequent voluntary
enhanced IM agreements in relation to a person even though one is currently in force
so long as the new agreement is expressed to come into force immediately after the
current operational enhanced IM agreement ceases to be in force.
Subsection 123SG(3) confirms that if a voluntary enhanced IM agreement in relation
to the person ceases, subsection 123SG(1) does not prevent the Secretary from
entering into a new voluntary enhanced IM agreement with that person.
Termination of enhanced income management agreements
New section 123SH deals with the termination of voluntary enhanced IM agreements.
It is equivalent to section 123UO, which deals with the termination of voluntary IM
agreements under Part 3B of the Administration Act.
Subsection 123SH(1) provides a person who has a voluntary enhanced IM agreement
in place may terminate the agreement by giving the Secretary written notice.
The ability to terminate an agreement is qualified by subsection 123SH(2), which
provides that a person may make a request to the Secretary only if their agreement
has been in force for at least 13 weeks. Where the agreement has been in force for at
least 13 weeks, the Secretary is required by subsection 123SH(3) to comply with the
person's termination request as soon as practicable after receiving it.
Subsection 123SH(4) additionally requires the Secretary to terminate a person's
voluntary enhanced IM agreement as soon as practicable after either of the following
events occurs to them:
(a) the volunteer ceases to be an eligible recipient of a category F welfare payment
(b) in the case where the person has a Part 3B payment nominee--that nominee
ceases to be subject to enhanced IM (under Part 3AA) or IM (under Part 3B).
Termination is required in the case (a) because the person will no longer be receiving
welfare payments that can be apportioned and in case (b) because the payment
nominee will either be a public trustee (however described) subject to trustee
requirements under a state or territory law or will be a person who themselves has
become subject to welfare quarantining under either Part 3AA or Part 3B. It would not
be appropriate for a person to be subject to welfare quarantining where either of these
circumstances applies to them.
Subsection 123SH(5) provides that if a voluntary enhanced IM agreement in relation
to a person is terminated under section 123SH, the Secretary must not enter into
another voluntary enhanced IM agreement with the person within 21 days after the
termination.
Item 48M inserts provisions regarding the impact on a person when they become
subject to the enhanced IM regime as a volunteer. For this purpose, it inserts a new
subdivision into Division 3 of Part 3AA entitled 'Subdivision C--Persons subject to the
enhanced income management regime--volunteers'.
New subdivision C contains 3 sections relating to the quarantining of category G
welfare payments for volunteers subject to the enhanced IM regime.
Firstly, new section 123SP deals with the proportions of welfare payments that subject
to welfare quarantining for volunteers by dividing these into qualified portions
(for spending on goods that satisfy basic human needs) and unqualified portions
(for discretionary spending).
Apportionment of category G payments by instalments--volunteers
Subsection 123SP(1) provides that a volunteer in the enhanced IM regime will have a
qualified portion of 50%, and an unqualified portion of 50%, of their category G welfare
payments that are paid by instalment. A note provides that percentages for qualified
and unqualified portions may be varied under subsection 123SP(3).
Apportionment of category G lump sum payments--volunteers
Subsection 123SP(2) provides that where a volunteer in the enhanced IM regime is
paid a category G welfare payment as a lump sum, 100% of that amount must be
qualified. A note to subsection 123SP(2) provide that the percentages set out for lump
sum apportionment between qualified and unqualified portions may be varied under
subsection 123SP(3).
Variation of qualified portion and unqualified portion by Secretary
Subsection 123SP(3) provides that the Secretary has a discretionary power to
determine that a volunteer to the enhanced IM may be subject to different
apportionment percentages. In particular, the Secretary can vary the qualified portion
applicable to volunteers in the following way:
• category G welfare payments paid by instalment can be varied so that the
qualified portion is 0% and the unqualified portion is 100%
• category G welfare payments paid by lump sum can be varied so that the
qualified portion is 0%.
Subsection 123SP(3) does not give the Secretary discretion to vary the set
percentages. This means that the Secretary is not able to increase the qualified portion
of a payment.
Subsection 123SP(4) provides that the Secretary may only vary the percentages the
qualified and unqualified portions under subsection 123SP(3) in specified
circumstances. These circumstances are that:
(a) the Secretary is satisfied that the person is unable to use the person's debit
card which is attached to the person's BasicsCard bank account or is unable to
access their BasicsCard bank account, as a direct result of:
(i) a technological fault or malfunction with that card or account; or
(ii) a natural disaster; or
(iii) if a national emergency declaration (within the meaning of the National
Emergency Declaration Act) is in force--an emergency to which the
declaration relates; or
(b) the person's category G welfare payment is payable in instalments and the
Secretary is satisfied that any part of the payment is payable:
(i) at a time determined under subsection 43(2) of the Administration Act,
where that determination is made because the person is in severe
financial hardship as a result of exceptional and unforeseen
circumstances; or
(ii) under a determination under subsection 51(1) of the Administration Act
relating to advance payments in cases of severe financial hardship.
Subsection 123SP(5) provides that determination made by the Secretary under
subsection 123SP(3) takes effect on the day specified in the determination, and that
day must not be earlier than the day on which the determination is made. This provides
certainty to the welfare recipient and the administering agency.
Subsection 123SP(6) confirms that a determination made under subsection 123SP(5)
is not a legislative instrument. This subsection is therefore merely declaratory of the
law and does not providing a substantive exemption to legislative instrument status
under the Legislation Act.
Secondly, new section 123SQ provides that where a volunteer in the enhanced IM has
surplus welfare payments after deductions and set-offs under section 123SE, the
Secretary must pay the balance of a qualified portion of a Category G welfare payment
to the credit of a BasicsCard Bank account maintained by the person.
Thirdly, new section 123SR establishes that a volunteer under section 123SE of the
Administration Act who has a an amount of welfare payment remaining after
deductions and set-offs may use the balance of their qualified portion, as paid under
section 123SQ, to obtain goods or services (other than excluded goods or excluded
services or a cash-like product that could be used to obtain excluded goods or
excluded services) and the unqualified portion at the person's discretion.
Excluded goods and excluded services have the same meaning as Part 3B of the
Administration Act and are therefore insistent with the IM regime. Excluded goods are
alcoholic beverages, tobacco products, pornographic material and goods specified in
a legislative instrument made by the Minister. Excluded services are gambling or a
service specified in a legislative instrument made by the Minister.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (REPEAL OF CASHLESS
DEBIT CARD AND OTHER MEASUERS) ACT 2022
This Bill 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.
The Bill delivers the Australian government's election commitment to abolish the
Cashless Debit Card (CDC). The Bill will also facilitate a transition to the new
enhanced Income Management (IM) arrangements in certain cases. This Statement
of Compatibility with Human Rights addresses the Bill amendments that establish
enhanced IM for volunteers.
Human rights implications
The amendments have possible impacts on the following human rights or freedoms:
• the rights of equality and non-discrimination
• the right to self-determination
• the right to an adequate standard of living, including food, water and housing
• the right to social security.
These rights and a number of other considerations are addressed in turn below.
General safeguards
A number of general safeguards that will help to protect human rights have been
incorporated into the proposal to abolish the CDC program and reform enhanced IM.
• The Bill will ensure a person who was on the CDC on a voluntary basis and is
transferred to enhanced IM will not move back onto the BasicsCard, but will be
given a contemporary card that provides modern functionality.
The rights of equality and non-discrimination
The rights of equality and non-discrimination are provided for in a number of the seven
core international human rights treaties to which Australia is a party, most relevantly
the International Covenant on Civil and Political Rights (ICCPR) and the Convention
on the Elimination of All Forms of Racial Discrimination (the CERD).
The rights to equality and non-discrimination are not affected by the abolition of the
CDC program and reform of IM. The abolition of CDC has not been applied on the
basis of race or cultural factors; all CDC program areas are included in the program
removal. The arrangements may apply to a high proportion of First Nations people.
However, they largely operate on a voluntary basis.
Those who reside in an existing CDC program area who receive an eligible welfare
payment, will be transitioned from voluntary CDC to voluntary enhanced IM and new
entrants in existing CDC sites (other than in the Northern Territory and Cape York
area) will able to volunteer for enhanced IM should they choose. Where a person is
automatically transitioned to voluntary enhanced IM, they will be able to request that
they cease being subject to enhanced IM while new volunteers will be able to terminate
their voluntary enhanced IM agreements. In this respect, the amendments are
reasonable, necessary and proportionate to their purpose.
The right to self-determination
Article 1 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) states that all people have the right of self-determination, which includes
the right to 'freely pursue their economic, social and cultural development'.
The abolition of the CDC program will not affect or interfere with a person's right to
freely pursue their economic, social or cultural development due to their largely
voluntary nature.
Those who volunteer to participate in enhanced IM will be choosing to keep part of
their welfare payments qualified (quarantined), either for budgeting purposes or to
protect welfare payments so others are not able to access them. This does not
encroach upon, and may even enhance, the right to self-determination. As a volunteer
of the program, participants will have 50 per cent of their welfare payments qualified
for expenditure on priority needs.
The right to an adequate standard of living, including food, water and housing
Article 11(1) of the ICESCR states that everyone has the right to an adequate standard
of living, including adequate food, clothing and housing, and the continuous
improvement of living conditions. Further to this, article 11(2) of the ICESCR states
that the fundamental right of everyone to be free from hunger should be recognised.
The abolition of the CDC program is compatible with and does not limit the right to an
adequate standard of living for affected people. Participants who transition from the
CDC program to voluntary enhanced IM will be able to access unrestricted welfare
payments paid into their nominated bank account. The arrangements for voluntary
enhanced IM mean that a person can notify the Secretary that they wish to terminate
their participation and thereby bringing voluntary payment quarantining to an end.
Those who volunteer for enhanced IM will still have their rights to an adequate
standard of living, including food, water and housing maintained. The only limits placed
on those who volunteer will be in relation to excluded goods and services (i.e. alcohol,
gambling, tobacco and pornographic material), or cash-like product that could be used
to obtain excluded goods and excluded services. Excluded goods and services are
not essential for maintaining a standard of living.
The right to social security
Article 9 of the ICESCR recognises the right of everyone to social security. In
accordance with Article 4 of the ICESCR, the State may limit this right only insofar as
such limitations may be compatible with the nature of these rights and solely for the
purpose of 'promoting the general welfare in a democratic society'.
The amendments made by this Bill do not detract from the eligibility of a person to
receive welfare nor reduce the amount of a person's social security entitlement.
The new voluntary enhanced IM arrangement provides a mechanism to ensure that
recipients of social security entitlements use a percentage of their welfare payments
to acquire goods and services that will satisfy the person's priority needs. A person
may opt out of the voluntary arrangements. Thus, to the extent that the right to social
security may be limited, those limitations are reasonable, necessary and proportionate
to prioritise basic living needs. Further, the measures proposed are 'promoting the
general welfare' of people through the prioritisation of their expenditures.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate. The abolition of
the CDC program and the reform of voluntary IM in CDC program areas will promote
the protection of human rights by giving individuals appropriate choice over how they
receive their welfare payments. The measures are reasonable, necessary and
proportionate to achieving the objectives of abolishing the CDC program and reforming
the IM regime in Australia, and are an essential element of the Government's election
commitment to support First Nations people to make their own decisions about the
way forward.
[Circulated by the authority of the Minister for Social Services,
the Hon Amanda Rishworth MP]
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