Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016 - 2017 - 2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SOCIAL SERVICES LEGISLATION AMENDMENT
(DRUG TESTING TRIAL) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Hon Dan Tehan MP)
SOCIAL SERVICES LEGISLATION AMENDMENT
(DRUG TESTING TRIAL) BILL 2018
OUTLINE
This Bill provides for the trialling of a new approach to identifying job seekers with
substance abuse issues by drug testing 5000 new recipients of Newstart Allowance
and Youth Allowance (other) in three discrete locations over two years.
Financial impact statement
The financial impact of these amendments is not for publication.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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SOCIAL SERVICES LEGISLATION AMENDMENT
(DRUG TESTING TRIAL) BILL 2018
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
Social Security Act means the Social Security Act 1991;
Social Security Administration Act means the Social Security
(Administration) Act 1999;
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;
Farm Household Support Act means the Farm Household Support Act
2014;
Welfare Reform Bill means the Social Services Legislation Amendment
(Welfare Reform) Bill 2017.
Clause 1 sets out how the new Act is to be cited - that is, as the Social
Services Legislation Amendment (Drug Testing Trial) Act 2018.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedules to, the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
3
Schedule 1 - Amendments
Schedule 1 - Amendments
Summary
This Schedule provides for a two year trial involving mandatory drug testing for 5,000
new recipients of Newstart Allowance and Youth Allowance (other) in the
Canterbury-Bankstown, New South Wales; Logan, Queensland and Mandurah,
Western Australia, regions.
Background
This Schedule will enable mandatory drug testing to be trialled for two years in three
discrete regions for new recipients of Newstart Allowance and Youth Allowance
(other).
Substance abuse is a major barrier to social and economic participation and is not
consistent with community expectations around receiving taxpayer funded welfare
payments. The aim of the trial is to improve a recipient's capacity to find
employment or participate in education or training by identifying people with drug use
issues and assisting them to undertake treatment. The trial will test the effectiveness
of decreasing substance abuse through random drug testing, in an effort to improve
employment outcomes for trial participants.
The trial will be conducted in three locations. These locations were selected
considering a range of factors, including crime statistics, drug use statistics, social
security data and health service availability. The trial locations are not in Community
Development Program areas.
Acknowledgement of trial participation at claim
All people making a claim for Newstart Allowance or Youth Allowance (other) after
the commencement of this measure will be asked to acknowledge in the claim form
that they may be required to undergo drug testing as a condition of payment, if they
reside in a trial site
Drug testing regime
Five thousand new recipients of Newstart Allowance and Youth Allowance (other)
after commencement of the trial will be randomly selected to undertake a drug test.
Recipients selected will be notified to attend an appointment at their local Centrelink
office consistent with standard Department of Human Services' appointment
requirements.
At the appointment, recipients will be notified they are required to undertake a
random drug test immediately. Drug testing of selected Newstart Allowance and
Youth Allowance (other) recipients will be administered by third party drug testing
providers contracted for that purpose, either in a private space at the Centrelink
office or on the provider's premises nearby, adhering to strict privacy principles
specified in legislation.
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Schedule 1 - Amendments
Recipients who test positive for illicit drugs specified as part of the trial at this initial
drug test will be subject to income management for a 24 month period. If the
recipient's payment is cancelled during the 24 month period and later reclaimed, they
will return to income management for the remainder of the 24 months. If the
recipient's first test is negative they will not be subject to income management.
Recipients who test positive to the initial drug test, in addition to being placed on
income management, will be subject to further random tests during the trial period,
the first of which will occur within 25 working days of the initial positive test.
Recipients who test positive to more than one drug test in the 24 month period will
be referred to a Department of Human Services' contracted medical professional for
assessment. If the medical professional recommends treatment, the recipient will be
required to complete the recommended treatment activities designed to address their
substance abuse as part of their Employment Pathway Plan (also known as a Job
Plan). These activities may include rehabilitation, counselling or ongoing drug
testing. Where treatment is not immediately available, recipients will be required to
take appropriate action such as being on a waiting list to satisfy part of their mutual
obligation requirements. Recipients with a drug treatment activity in the plan may
still be required to undertake other activities, including job search, depending on their
circumstances.
Further drug test/s will be conducted during the 24 months of the trial period.
Recipients who fail to meet the terms of their Employment Pathway Plan including
any drug treatment activities would be subject to the participation payment
compliance framework. Reasonable excuse provisions would continue to apply;
however, not where the reason is wholly or substantially attributable to drug or
alcohol use and the person has refused available and appropriate treatment. This
measure is subject to the passage of the Social Security Legislation Amendment
(Welfare Reform) Bill 2017.
Recipients who refuse to take the test (whether first or subsequent tests) will have
their payment cancelled with effect from the day on which the refusal occurred,
unless the person has a reasonable excuse. Suspension will not be an option.
If the person then makes a new claim for Newstart Allowance or Youth Allowance
(other) following cancellation, the payment will not be payable for a 4-week period
from the date of cancellation. Recipients who subsequently return to payment after
their waiting period will still be subject to the trial and required to undergo random
drug testing as a condition of their ongoing receipt of payment. The 4-week period
only applies to recipients whose payment was cancelled because of their refusal to
take the drug test despite acknowledging and accepting that they may be subject to
drug testing as part of their initial claim for payment.
If a recipient tests positive to a second or any subsequent test, they will be required
to repay the cost of these tests which can be done through a small percentage
reduction of their fortnightly social security payment. Financial hardship provisions
will ensure no one is adversely affected.
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Schedule 1 - Amendments
The cost of the test (that is, the amount to be repaid) will be an amount determined
by the Secretary in an instrument and will be no more than the lowest cost that any
test is available to the Department of Human Services under their contract with the
drug testing provider. The cost will be deducted from future social security payments
at a rate percentage set by the Secretary, capped at a maximum of 10 per cent. The
Secretary will also be able to vary the person's repayment rate if they are
experiencing financial hardship, or increase that rate at their request.
If a recipient disputes the result of their initial drug test and requests another test, the
retest will be at the recipient's own expense if the result of the retest is positive.
If the recipient's payment, for reasons other than refusing to take a drug test, is
suspended or cancelled prior to the second drug test and the recipient subsequently
becomes qualified and the payment is payable, the second test will be conducted
within 25 working days of the person becoming qualified and the payment being
payable (irrespective of any gap in payment) during the trial period.
However, recipients who receive a payment of farm household allowance made
under the Farm Household Support Act will not be subject to the drug testing trial.
Compliance with notices
Recipients who are part of the drug testing trial and fail to attend scheduled
appointments with the Department of Human Services will have their payment
suspended until they attend a rescheduled appointment. When the recipient attends
a rescheduled appointment their payment will be resumed but will not be backdated
to the date of suspension, unless the recipient has a reasonable excuse for not
attending, such as unforeseen caring responsibilities. If no reasonable excuse
exists, their payment will be payable from the date of their attendance at the
rescheduled appointment. After 13 weeks, if the recipient has not attended an
appointment, their payment will be cancelled. If the recipient provides prior notice to
the Department of Human Services of a reasonable excuse for not being able to
attend the appointment, such as work commitments, their appointment will be
rescheduled.
The amendments made by this Schedule commence on the first 1 January, 1 April,
1 July or 1 October, to occur after the end of the period of two months beginning on
the day this Act receives Royal Assent.
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Schedule 1 - Amendments
Explanation of the changes
Schedule 1 - Amendments
Part 1 - Amendments commencing first
Division 1 - Main amendments
Social Security Act
Item 1 amends subsection 23(1) and inserts a number of definitions for the purposes
of the drug testing trial.
Drug test means, in relation to a person, a test that is carried out in accordance with
applicable drug test rules (if any) directly or indirectly under a contract with the
Commonwealth that was entered into for the purposes of carrying out the test and is
for the presence of a testable drug in a sample taken in the drug test trial period from
the person's saliva, urine or hair.
Drug test rules means rules made under new section 38FA.
Drug test trial area means any of the following:
(a) the part of New South Wales that was the area named Canterbury-Bankstown
for the purposes of the Local Government Act 1993 (NSW), as at the start of 1
January 2018;
(b) the part of Queensland that was the local government area named Logan for
the purposes of the Local Government Act 2009 (Qld), as at the start of
1 January 2018;
(c) the part of Western Australia that was the district named Mandurah for the
purposes of the Local Government Act 1995 (WA), As at the start of
1 January 2018.
For the purposes of the definition in paragraph (a) above, the description of the
Canterbury-Bankstown area can be found in item 2 of Schedule 2 to the Local
Government (Council Amalgamations) Proclamation 2016 (NSW) as in force on 7
November 2016.
For the purposes of the definition in paragraph (b) above, the description of the
Logan area can be found in the area map referred to in column 3 of the table item for
that area in Schedule 1 to the Local Government Regulation 2012 (Qld) as in force
on 30 June 2017.
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Schedule 1 - Amendments
For the purposes of the definition in paragraph (c) above, the Mandurah boundaries
can be described as all that portion of land as promulgated in Government Gazettes
on 10 June 1949 (pages 1248 to 1249) and amended by the Government Gazettes
on 6 November 1959 (page 2750), 2 September 1960 (page 2834), 18 October 1968
(page 3105) 27 June 1969 (page 1878), 4 February 1972 (page 216) and
31 December 1996 (pages 7252 to 7253).
Drug test trial period means the 24 months starting on the commencement of this
definition. That is, if the amendments establishing the two year drug testing trial
commence on 1 July 2018, then the 24 month period starts on 1 July 2018 and ends
on 30 June 2020. However, if the amendments commence on, say, 1 October 2018,
then the 24 month period starts on 1 October 2018 and ends on 30 September 2020,
and so on.
Drug test trial pool member provides that a person is a drug test trial pool member
at a time if:
(a) that time is in the drug test trial period (as defined in section 23(1)); and
(b) at that time the person's usual place of residence is in a drug test trial area;
and
(c) at that time the person is:
(i) receiving Newstart Allowance; or
(ii) receiving Youth Allowance (other) (that is, a Youth Allowance recipient
who is not a full-time student or a Youth Allowance Australian apprentice);
as a result of a claim made during the drug test trial period; and
(d) when the claim was made the person acknowledged on their claim form that
they may be subject to the drug testing trial; and
(e) if the claim was for Youth Allowance--the claim was for Youth Allowance
(other).
Positive drug test means, in relation to a person, an indication by a drug test that a
testable drug was present in a sample of the person's saliva, urine or hair given by
the person in compliance with a requirement notified to the person under new
paragraph 63(4)(c) of the Social Security Administration Act.
Testable drug means methamphetamine, methylenedioxy-methamphetamine,
tetrahydrocannabinol, opioids or another substance prescribed by the drug test rules
for the purposes of this definition.
Item 2 inserts new paragraph (cb) into the definition of waiting period so that a
Newstart Allowance drug test refusal waiting period applies for the purposes of new
sections 623C and 623D.
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Schedule 1 - Amendments
Item 3 adds new section 38FA at the end of Part 1.3. New section 38FA provides a
discretion for the Minister to make drug test rules, by legislative instrument, providing
for and in relation to the following:
(a) prescribing substances for the purposes of the definition of testable drug in
subsection 23(1);
(b) giving and taking of samples of persons' saliva, urine or hair for use in drug
tests;
(c) dealing with such samples;
(d) carrying out drug tests;
(e) giving of results of drug tests in certificates or other documents and the
evidentiary effect of those certificates or documents;
(f) confidentiality and disclosure of results of drug tests;
(g) requirements relating to contracts entered into for the carrying out of drug
tests;
(h) keeping and destroying records relating to samples for use in drug tests or
drug tests.
The intention is that the drug test rules will set out high level protocols that will apply
for conducting the drug tests, including in relation to the use and disclosure of test
results. This provides additional safeguards to ensure the operation of the drug
testing is consistent with the requirements under the Privacy Act 1988 and the
confidentiality provisions in the Social Security Administration Act.
The reason for the use of delegated legislation to set out the rules for conducting the
tests is that these technical and more administrative details rely to an extent on the
advice of the preferred tenderer for the provision of drug testing trial services as well
as other stakeholders. Use of a legislative instrument gives the necessary flexibility
to ensure that the arrangements for the drug testing will meet the intention of the
legislation but can accommodates practicalities that may have been unknown at time
the Bill was drafted.
The Department has been engaging with stakeholders from the health, alcohol and
other drug, and welfare sectors and this consultation will be ongoing. The
Department has spoken to all state and territory governments as well as a range of
drug and alcohol treatment providers and peaks, and related experts across the
country, and in the trial sites. The advice and feedback of stakeholders will be
considered in finalising the Drug Test Rules.
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Schedule 1 - Amendments
The minimum requirements, including qualifications, of the drug test provider and its
officers will also be set out in the Drug Test Rules. While the Drug Testing Rules
have not been finalised at this stage, it is intended that the drug testing provider will
need to deliver testing services in accordance with the relevant Australian Standards
(where these exist) being AS/NZS 4308:2008 Procedures for specimen collection
and the detection and quantitation of drugs of abuse in urine and AS4760:2006
Procedures for specimen collection and the detection and quantitation of drugs in
oral fluid. It is also intended that the provider will also be required by the Rules to
utilise authorised laboratories - those accredited by the National Association of
Testing Authorities, Australia - and to use authorised analysts and collecting
agencies for the purposes of analysing the results of samples taken for drug testing.
With respect to privacy concerns, there are existing privacy safeguards in place
under the Privacy Act 1988 and the confidentiality provisions in Division 3 of Part 5 of
the Administration Act. These confidentiality provisions stipulate that protected
information, including any personal information such as health information, can only
be accessed, used or disclosed in limited circumstances. This includes for the
purposes of administering the social security law; for research, statistical analysis or
policy development; and where it has been certified as being in the public interest.
These existing safeguards will apply to any information gathered as part of this trial,
including that obtained or generated by the drug test provider. Any accessing, use or
disclosure of this information, including test results, will only occur in accordance
with these existing laws.
An exposure draft copy of the Drug Testing Rules was tabled by the Department of
Social Services when it appeared at the hearings for the Senate Community Affairs
Legislation Committee's inquiry into the Welfare Reform Bill on 30 August 2017. The
Rules remain subject to change, including from information obtained from the
procured drug testing provider.
Item 4 inserts new subsection 544B(1AA) into section 544B.
New section 544B(1AA) provides that one of the requirements of a Youth Allowance
Employment Pathway Plan that is in force in relation to a person must relate to the
person undertaking treatment for the use of drugs. This requirement applies if a
drug test trial pool member who has had two or more positive drug tests and has
undergone a medical, psychiatric or psychological examination in accordance with a
notice given under subsection 63(4) of the Social Security Administration Act after
the second (or further) positive drug tests and the report of the examination given to
the Secretary recommends that the person undertake treatment for the use of drugs.
The intention is that the Secretary could formulate the requirement as one to
undertake treatment (if treatment is available) or as one to commit to undertaking
treatment if it is not available when the requirement is included in the plan but
becomes available later.
Item 5 adds new paragraph 549(2)(c) so that Youth Allowance is not payable to a
person while the person is subject to a drug test refusal waiting period for the
purposes of new sections 549EA and 549EB.
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Schedule 1 - Amendments
Item 6 inserts new section 549EA. New section 549EA sets out the circumstances
in which a person is subject to a drug test refusal waiting period. A person is subject
to this waiting period if the person fails to comply with a notice given under
paragraph 63(4)(c) of the Social Security Administration Act, that results in the
person's Youth Allowance not being payable under section 64 of the Social Security
Administration Act and being cancelled under section 80 of that Act. If, after the
non-compliance with the notice, the person qualifies for Youth Allowance (other), the
person will be subject to the waiting period.
The intention is that a person's payment will be cancelled with immediate effect, if
the person refuses a drug test, noting that they previously acknowledged and
accepted potential drug testing as a condition of payment when they claimed the
payment. Consequently, cancellation will trigger the waiting period to prevent Youth
Allowance being payable for that period if the person makes a new claim for Youth
Allowance.
The note under section 549EA clarifies that paragraph 63(4)(c) of the Social Security
Administration Act is about giving a sample for a drug test.
New section 549EB provides for the length of the drug test refusal waiting period.
The period is 28 days starting on the day of the cancellation of the person's Youth
Allowance.
Item 7 inserts new subsection 606(1AA) into section 606.
New subsection 606(1AA) provides that one of the requirements of a Newstart
Employment Pathway Plan that is in force in relation to a person must relate to the
person undertaking treatment for the use of drugs. This requirement applies if a
drug test trial pool member who has had two or more positive drug tests and has
undergone a medical, psychiatric or psychological examination in accordance with a
notice given under subsection 63(4) of the Social Security Administration Act after
the second (or further) positive drug tests and the report of the examination given to
the Secretary recommends that the person undertake treatment for the use of drugs.
The intention is that the Secretary could formulate the requirement as one to
undertake treatment (if treatment is available) or as one to commit to undertaking
treatment if it is not available when the requirement is included in the plan but
becomes available later.
Item 8 adds new sections 623C and 623D at the end of Subdivision E of Division 1
of Part 2.12. New section 623C sets out when a drug test refusal waiting period
applies due to a person's non-compliance with a notice requiring the person to do an
act described in paragraph 63(4)(c) of the Social Security Administration Act.
A person is subject to this waiting period if the person fails to comply with a notice
given under paragraph 63(4)(c) of the Social Security Administration Act, that results
in the person's Newstart Allowance not being payable under section 64 of the Social
Security Administration Act and being cancelled under section 80 of that Act.
The note under section 623C clarifies that paragraph 63(4)(c) of the Social Security
Administration Act is about giving a sample for a drug test.
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Schedule 1 - Amendments
New section 623D provides that the duration of the drug test refusal waiting period is
28 days starting on the day of the cancellation of the person's Newstart Allowance.
Item 9 inserts into the Youth Allowance Rate Calculator new paragraph (ba) in
step 14 of the method statement under point 1067G-A1. Under new paragraph (ba),
the amount of the drug test repayment deduction (worked out in accordance with
Part 3.16C) should be subtracted from the provisional fortnightly payment rate if
there is any amount remaining after subtracting any special employment advance
deduction or any advance payment deduction.
Item 10 inserts into Benefit Rate Calculator B new paragraph (ba) in step 7 of the
method statement under point 1068-A1. Under new paragraph (ba), the amount of
the drug test repayment deduction (worked out in accordance with Part 3.16C)
should be subtracted from the provisional fortnightly payment rate if there is any
amount remaining after subtracting any special employment advance deduction or
any advance payment deduction.
Item 11 inserts new Part 3.16C (Drug test repayment deductions) after existing
Part 3.16B (Advance payment deductions). This new Part inserts new
sections 1206XA, 1206XB, 1206XC, 1206XD, 1206XE and 1206XF.
New section 1206XA provides for drug test repayment deductions to be made from a
person's Newstart Allowance or Youth Allowance (other). New
subsection 1206XA(1) provides that a drug test repayment deduction is to be made
from the rate of Newstart Allowance or Youth Allowance (other) that is payable to a
person.
New subsection 1206XA(2) provides that a person has a drug test repayment deficit,
at a time, if the sum of all the drug test repayment amounts that arose for the person
before that time exceeds the sum of the amounts by which instalments of social
security benefit paid to the person before that time have been properly reduced by
the making of drug test repayment deductions. The intention is that all a person's
drug test repayment amounts (for life) and all reductions of instalments (for life) are
taken into account in working out whether a person has a deficit.
For example, if a person has returned a positive drug test, not including the initial
drug test, they will be required to repay the amount determined by the Secretary (not
greater than the lowest test cost available to the Department of Human Services
under contract), an amount of $80 has been used for the purposes of this example.
Repayment will commence from the next social security payment once the
Department of Human Services become aware of a drug test repayment requirement
for a person. If the repayment rate is set by the Secretary at 5 per cent, and the
person's rate of Newstart Allowance is calculated to be $535.60 - the maximum
basic rate - this person will have an amount of $26.80 deducted from their payment
rate and credited to their drug test repayment balance. This will reduce their
outstanding balance to $53.20. If they subsequently return a further positive drug
test, the amount to be repaid for that test will be added to their balance. If a person
leaves payment with an outstanding drug testing repayment balance and
subsequently returns to payment, they will continue to pay off that balance by rate
reduction.
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Schedule 1 - Amendments
For clarity, the reference to social security benefit by virtue of subsection 1206XA(1)
is Newstart Allowance or Youth Allowance (other).
The reference to 'proper' reduction is intended to cover the possibility that
deductions may be made because of a positive drug test that a contractor later says
should not be taken into account. New subsection 1206XA(5) will then apply so that
the amount of the deficit can be recalculated to exclude the drug test repayment
amount that arose from that test.
New subsection 1206XA(3) provides that the amount of the drug test repayment
deficit is the amount outstanding (the excess) that is owed by a person for any
positive drug test at a point in time after a person's instalment of Newstart Allowance
or Youth Allowance (other) has been reduced by the making of a drug test
repayment.
New subsection 1206XA(4) provides that a drug test repayment amount arises for
each positive drug test for the person if the drug test was carried out at the request
of the person and use a sample given by the person in compliance with the first
notice given under paragraph 63(4)(c) of the Social Security Administration Act.
New subsection 1206XA(5) provides that a drug test repayment amount is taken not
to have arisen for a person from a positive drug test if the contractor who carried out
the test gives a written notice to the Secretary that the test should not be taken into
account for the purposes of this Part. For example, if the contractor becomes aware
that of a false positive test result such as when they are provided with evidence that
the person is taking legal medication which may cause this, the contractor will be
required under the drug testing rules to notify the Secretary that the test should not
be taken into account for the purposes of a drug test repayment deduction. The
criteria for guiding when the contractor would give a written notice will be provided in
the drug test rules.
New subsection 1206XA(6) provides that the amount of the drug test payment
amount is the amount prescribed by legislative instrument under
subsection 1206XA(7).
New subsection 1206XA(7) provides a discretion for the Secretary to make a
legislative instrument for the purposes of subsection 1206XA(6). In doing so, the
Secretary must have regard to the lowest cost to the Commonwealth of any drug test
that could be carried out at the time the legislative instrument is to commence.
New section 1206XB sets out the basic calculation for working out the amount of the
drug test repayment deduction.
New subsection 1206XB(1) provides that the amount of a drug test repayment
deduction is the percentage, worked out in accordance with subsection 1206XB(3),
and section 1206XC or 1206SD (if relevant).
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Schedule 1 - Amendments
To work out the amount of Newstart Allowance that is payable to a person where a
drug test repayment deduction applies, the amount of the person's rate of Newstart
Allowance is worked out under step 7 of the method statement in point 1068-A1,
disregarding paragraph (ba) and (c) of that step.
To work out the amount of Youth Allowance that is payable to a person where a drug
test repayment deduction applies, the amount of the person's rate of Youth
Allowance is worked out under step 14 of the method statement in point 1067G-A1,
disregarding paragraphs (ba) and (c) of that step.
New subsection 1206XB(2) provides that subsection (1) has effect subject to
section 1206XE.
New subsection 1206XB(3) provides that for the purposes of subsection (1), the
percentage is the percentage prescribed by legislative instrument under
subsection (4). Subsection (3) has effect subject to sections 1206XC and 1206XD.
New subsection 1206XB(4) provides a discretion for the Secretary to make a
legislative instrument for the for the purposes of subsection (3). The instrument must
not prescribe a percentage greater than 10 per cent.
New section 1206XC enables a person to request a greater percentage for their drug
test repayment deduction.
New subsection 1206XC(1) provides that the percentage for working out a person's
drug test repayment deduction is increased to a greater percentage if the person
asks the Secretary in writing for it to be increased.
New subsection 1206XC(2) provides that subsection (1) does not apply if the
Secretary is satisfied that the person would suffer severe financial hardship if the
percentage is increased.
New section 1206XD provides for the Secretary to reduce the amount of the
percentage for a person's drug test repayment deduction if the person is in severe
financial hardship.
New subsection 1206XD(1) provides a discretion for the Secretary to determine that,
for a specified period, the percentage for working out a person's drug test repayment
deduction may be a percentage (which may be nil) that is less than the percentage
that would otherwise apply, if the Secretary is satisfied that:
(a) the person's circumstances are exceptional; and
(b) the person would suffer severe financial hardship if the percentage that would
otherwise apply were to continue to apply.
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Schedule 1 - Amendments
New subsection 1206DX(2) provides a discretion for the Secretary, at any time while
the determination is in force, to:
(a) vary the determination so that a percentage that is greater than that
previously determined under subsection (1) will apply but will be less than the
percentage that applied immediately prior to the determination under
subsection (1) have been made; or
(b) revoke the determination;
but only if the Secretary is satisfied that the person would not suffer severe financial
hardship because of the variation or revocation.
New section 1206XE provides for the final drug test repayment deduction where the
person's drug test repayment deduction is greater than the amount of the person's
drug test repayment deficit. In these circumstances, if an instalment of a person's
Newstart Allowance or Youth Allowance is reduced by a drug test repayment
deduction that is greater than the amount of the person's drug test repayment deficit,
then the deduction is reduced so that the person's instalment is reduced by the
amount of the deficit. For example, where a person has a drug test repayment
balance of $20 and they are entitled to the maximum basic rate of Newstart
Allowance that fortnight - $535.60 - their repayment amount will only be $20 and not
the $26.80 that would otherwise be calculated according to the rate calculator
formula.
New section 1206XF provides for the rounding up to the nearest cent (rounding
0.5 cents upwards) for amounts worked out under this Part.
Social Security Administration Act
Item 12 inserts new subsection 37(7A) into section 37. New subsection 37(7A)
modifies the obligation for the Secretary to grant a claim for Newstart Allowance or
Youth Allowance under subsection 37(1) so that the requirements under
subsection 37(1) are subject to subsection 37(7A). Subsection 37(7A) provides that
despite subsections (2), (3), (6) and (7), the Secretary must not, in a drug test trial
period, determine that a claim for Newstart Allowance or Youth Allowance by a
potential drug test trial pool member is to be granted unless the Secretary is satisfied
that the claimant acknowledged in the claim that the claimant could be required to
give samples for drug tests to be carried out in that period.
Item 13 is consequential to item 15, which inserts a new paragraph into
subsection 63(4).
15
Schedule 1 - Amendments
Item 14 inserts new subsection 63(2A), which provides a discretion for the
Secretary to notify a person under subsection (2) that he or she is required, at or
within a specified time, to do an act described in paragraph (2)(a) if:
(a) the person was earlier, while the person was a drug test trial pool member,
required under that subsection to do that act or thing but did not comply with
that earlier requirement; and
(b) because of that non-compliance and subsection 64(1), the Newstart
Allowance or Youth Allowance that the person received as a drug test trial
pool member is not payable to the person (whether or not the payment is
suspended).
To avoid doubt, the notification is taken for all purposes to be under subsection (2).
Item 15 inserts new paragraph 63(4)(c), which provides that if the Secretary is of
the opinion that a person who is a drug trial pool member should give a sample of a
particular kind at a particular place for a drug test to be carried out (at that place or
elsewhere) on the sample, the Secretary may notify the person that he or she is
required within a specified time to give a sample.
Item 16 inserts new subsections 63(4A) and (4B). New subsection 63(4A)
provides that the Secretary must not notify a person of a requirement to give a
sample for a drug test as described in paragraph 63(4)(c) if 5,000 other persons
have given samples in compliance with the such requirements. This is whether or
not any of those 5,000 persons had given two or more samples under one or more
such requirements.
The note under subsection 63(4A) clarifies that this does not prevent the Secretary
from notifying a particular person multiple times of such requirements, as long as
fewer than 5,000 other persons have given samples under such requirements.
New subsection 63(4B) provides that the Secretary may also notify a person under
subsection 63(4) that he or she is required, at or within a specified time, to do an act
or thing described in paragraph (4)(b) or (c) if:
(a) while the person was a drug test trial pool member, the person was earlier
required under that subsection to do that act or thing or under subsection (2)
to attend an office of the Department but did not comply with that earlier
requirement; and
(b) because of that non-compliance and subsection 64(1), the Newstart
Allowance or Youth Allowance the person received as such a member is not
payable to the person (whether or not the payment is suspended).
To avoid doubt, the notification is taken for all purposes to be under subsection (4).
16
Schedule 1 - Amendments
Item 17 inserts new subsection 64(1AA) into section 64. New subsection 64(1AA)
provides that a notice of a requirement to do an act described in paragraph 63(4)(c)
is not unreasonable for the purposes of paragraph 64(1)(c) merely because of the
nature of the act (even if it is not the first notice requiring the person to do such an
act). For example, if a person attends an office of the Department in accordance
with a section 63(2) notice and, at that time, is given a section 63(4)(c) notice to give
a sample immediately (or shortly after attending the office), the requirement to give a
sample is not unreasonable merely because of its nature, for the purposes of
paragraph 64(1(c).
Item 18 inserts new section 64A after section 64, which provides for the contractual
arrangements that relate to drug tests. New subsection 64A(1) provides that, for the
purposes of paragraph 63(4)(c), the Secretary may, on behalf of the Commonwealth,
enter into contracts for the carrying out of drug tests as mentioned in that paragraph.
New subsection 64A(2) provides that a contract mentioned in subsection (1) must
meet any requirements prescribed by the drug test rules. New subsection 64(3) sets
out that without limiting subsection (2), the drug test rules may require a contract
mentioned in subsection (1) to include provisions requiring the following:
(a) give the Secretary written notice of the results of the drug test. In this
situation, the contractor must be satisfied that there is a positive drug test
result for the person; and
(b) give notice as mentioned in paragraph 123UFAA(1A)(c) (written notice that
the person should be subject to the income management regime, see item 24)
in circumstances prescribed by the drug test rules. In this case, if a person's
drug test result is positive, the contractor will give a notice to the Secretary
that the person should be subject to income management; and
(c) withdraw or revoke a notice as mentioned in paragraph 123UFAA(1A)(d) in
circumstances prescribed by the drug test rules. For example, if a person
requests a second drug test which results in a negative result or if the
contractor receives evidence that the person is taking legal medication which
could cause a false positive result, the contractor can withdraw or revoke a
notice that was previously given a notice under paragraph 123UFAA(1A)(c);
and
(d) give notice as mentioned in subsection 1206XA(5) of the Social Security Act
(written notice that the a positive drug test should not be taken into account,
see item 11) in circumstances prescribed by the drug test rules. For example,
if the contractor becomes aware that of a false positive test result such as if
the contractor received evidence that the person is taking legal medication
which could cause a false positive result, the contractor will be required under
the drug testing rules to notify the Secretary that the test should not be taken
into account for the purposes of a drug test repayment deduction; and
(e) any subcontracts to include provisions requiring matters mentioned in
paragraphs (a) to (d).
17
Schedule 1 - Amendments
Item 19 is consequential to item 20, which is a technical amendment for the
purposes of adding new subsections into section 110A.
Item 20 adds new subsection 110A(2) and (3), which sets out the consequence if a
drug test pool member fails to comply with a notice given under paragraph 63(2)(a),
63(4)(b) or 63(4)(c).
In accordance with new subsection 110A(2), subsection 110A(3) applies if:
(a) a drug test pool member's Newstart Allowance or Youth Allowance was
suspended under subsection 64(1) because the person did not comply with a
requirement (the earlier requirement) to do an act or thing in accordance
with a notice that was given under paragraph 63(2)(a), 63(4)(b) or 63(4)(c)
while he or she was a drug test pool member; and
(b) if the earlier requirement was to do an act described in paragraph 63(2)(a), it
is reasonable to expect that, had the person complied with the earlier
requirement, the person would have been required to do an act (give a
sample) described in paragraph 63(4)(c); and
(c) the person complies with:
(i) a later requirement under subsection 63(2) or (4) to do the act or thing
required by the earlier requirement; and
(ii) if the earlier requirement was to do an act described in
paragraph 63(2)(a), a later requirement to do an act (give a sample)
described in paragraph 63(4)(c); and
(d) a favourable determination is made under section 85 to resume payment of
social security payment to the person.
New subsection 110A(3) provides that a favourable determination takes effect, or is
taken to have taken effect:
(a) when the person met the condition in paragraph 110A(2)(c); or
(b) if the Secretary is satisfied that the person had a reasonable excuse for not
complying with the earlier requirement, on the day on which the person was
required by the earlier requirement to do the act or thing concerned.
The intention is that a person's Newstart Allowance or Youth Allowance will not be
backdated to the date of suspension but will only be payable from the date the
person attended an appointment in accordance with the later notice, unless the
Secretary is satisfied that the person had a reasonable excuse (for example, was
required to attend a job interview at short notice) for not attending the appointment in
accordance with the earlier notice and can provide evidence of this.
18
Schedule 1 - Amendments
Item 21 inserts new paragraph (gb) in the simplified outline of Part 3B which
appears in section 123TA. New paragraph (gb) sets out a new circumstance in which
a person may become subject to the income management regime in Part 3B. The
new paragraph provides that a person may become subject to the income
management regime if there is a positive drug test for the person and the tester tells
the Secretary that the person should be subject to the income management regime.
Item 22 repeals the current heading for section 123UFAA and substitutes a new
heading. The new heading reflects the inclusion in section 123UFAA of new
subsection 123FUAA(1A), which provides for the referral of a person to income
management if the person has a positive drug test.
Item 23 amends paragraph 123UFAA(1)(g) to insert the words 'or subsection (1A) of
this section' at the end of the paragraph. This amendment is intended to ensure that
if a person is subject to the income management regime under new
subsection 123UFAA(1A) (see item 24), the person cannot become subject to the
income management regime under subsection 123UFAA(1). Therefore, if a person
has already been referred onto income management by way of a written notice from
a contractor under new subsection 123UFAA(1A) a person cannot be subject to
income management under subsection 123UFAA(1) on the basis of a referral from a
recognised State/Territory authority.
Item 24 inserts new subsections 123UFAA(1A), (1B), (1C) and (1D) after
subsection 123UFAA(1).
New subsection 123UFAA(1A) provides for a new circumstance in which a person
can be made subject to the income management regime in Part 3B.
Under new subsection 123UFAA(1A) a person is subject to the income management
regime at a particular time (the test time) if:
(a) at the test time, the person is an eligible recipient of a category H welfare
payment (as defined in section 123TC); and
(b) before the test time, there was a positive drug test for the person; and
(c) in the 24 months, or longer period (if any) determined under new
subsection 123UFAA(1B), before the test time, the contractor who carried
out the test gave the Secretary a written notice saying that the person
should be subject to the income management regime under this
subsection. The circumstances under which such a notice may be given
will be provided in the drug test rules, for instance, if the drug test result is
positive; and
(d) at the test time, the notice has not been withdrawn or revoked; and
(e) at the test time, the person is not covered by a determination under new
subsection 123UFAA(1C); and
19
Schedule 1 - Amendments
(f) if, at the test time, the person has a Part 3B payment nominee--the
Part 3B payment nominee is not an excluded Part 3B payment nominee;
and
(g) at the test time, the person is not subject to the income management
regime under section 123UC (the child protection measure of income
management), 123UD (the school enrolment measure of income
management), 123UE (the school attendance measure of income
management) or 123UF (referral onto income management by the
Queensland Commission) or subsection (1) of this section (referral onto
income management by a recognised State/Territory authority).
New subsection 123UFAA(1B) provides that the Secretary may by legislative
instrument, determine a period longer than 24 months for the purposes of
paragraph(1A)(c). The intention is to give the Secretary the discretion to extend the
period of income management for longer than the 24 month trial period.
For example, if a person continues to return a positive drug test during the 24 month
trial period, the person will continue to be subject to income management after the
drug testing trial ends. It is intended that this provision would be used where it is
considered to be beneficial to a person's drug rehabilitation outcome to remain on
income management for a longer period of time.
New subsection 123UFAA(1C) provides that the Secretary must determine that a
person is not subject to the income management regime under new
subsection 123UFAA(1A) if the Secretary is satisfied that being subject to the regime
under that subsection poses a serious risk to the person's mental, physical or
emotional wellbeing. The intent of this provision is to protect those persons who,
based on documentary evidence, may seriously be at risk of adverse impacts on
their mental, physical or emotional wellbeing as a result of being subject to the
income management regime.
New subsection 123UFAA(1D) provides that the Secretary is not required to actively
take steps to assess every trial participant, who is referred to income management,
to decide whether being subject to income management would seriously risk that
person's mental, physical or emotional wellbeing. The Secretary will consider making
this determination once he or she is made aware of facts which indicate that being
subject to income management may seriously risk a person's mental, physical or
emotional wellbeing. Where the Secretary is satisfied that being subject to income
management would seriously risk that person's mental, physical or emotional
wellbeing and makes a determination to this effect, the person will not be subject to
income management while that condition is met. If the serious risk to the person is
only brought to the Secretary's attention after they have been referred to income
management and the Secretary is satisfied that being subject to the regime poses a
serious risk to the person's mental, physical or emotional wellbeing, a determination
will be made, resulting in the person no longer being subject to income management
while that condition is met.
20
Schedule 1 - Amendments
Paragraphs 123UFAA (1C) and (1D) were strengthened in response to the
Government's Scrutiny of Bills Committee's comments on the Social Services
Legislation Amendment (Welfare Reform) Bill 2017 regarding restriction of judicial
review with regard to the Secretary's obligations to remove people from the income
management regime if he is satisfied it poses a serious risk to their health.
Item 25 amends paragraph 123UFAA(2)(c) to add the words 'or (1A)' at the end of
the paragraph. Subsection 123UFAA(2) currently provides that, for the purposes of
Part 3B, a person is subject to the income management regime at a particular time
(the test time) if:
(a) at the test time, the person is not subject to the income management regime
under any other provision of Subdivision A of Division 2 of Part 3B; and
(b) at the test time, the person has a Part 3B payment nominee; and
(c) at the test time, the Part 3B payment nominee is subject to the income
management regime under subsection (1).
This item amends paragraph 123UFAA(2)(c) to provide that a person's Part 3B
payment nominee is also subject to the income management regime provided for in
subsection 123UFAA(1A).
Item 26 repeals the heading of Subdivision DAA of Division 5 of Part 3B and inserts
a new heading. This amendment is a consequential amendment resulting from the
insertion of new subsections 123UFAA(1A), (1B) and (1C) by item 24.
Item 27 amends subsections 123XPAA(4) and 123XPAB(4) to add a
new paragraph (d) to both subsections. The inclusion of a new paragraph (d) in
subsections 123XPAA(4) and 123XPAB(4) extends the range of circumstances in
which the Minister can make an instrument to specify a different percentage for the
purposes of determining the person's deductible portion for income management
purposes. A person's deductible portion is the amount of a person's welfare
payment that is subject to income management. New paragraph (d) in
subsections 123XPAA(4) and 123XPAB(4) will ensure that where a person is subject
to income management as a result of the person having a positive drug test, the
Minister can make an instrument specifying a different percentage to the
percentages contained in paragraphs 123XPAA(3)(a) and 123XPAB(3)(a).
Item 28 insert the definition of potential drug test trial pool member into
subclause 1(1) of Schedule 1.
Potential drug test trial pool member provides that a person is a potential drug
test trial pool member at a time if:
(a) that time is in the drug test trial period (as defined in section 23(1) of
the Social Security Act); and
(b) the person has, before that time and in the drug test trial period, made:
(i) a claim for Newstart Allowance; or
(ii) a claim for Youth Allowance (other); and
21
Schedule 1 - Amendments
(c) at that time the claim has not been determined; and
(d) when the claim was made, the person's usual place of residence was
in a drug test trial area.
Item 29 amends subparagraph 15(b)(i) of Schedule 2. This amendment ensures that
if:
a person claims Newstart Allowance or Youth Allowance (other);
the person's payment is not payable because of new paragraph 63(4)(c); and
the person's Newstart Allowance or Youth Allowance (other) has been
cancelled, with cancellation taking effect in the previous 14 days,
a person's start date in relation to the payment claimed is not the date of
cancellation.
If a recipient of Newstart Allowance or Youth Allowance (other) does not comply with
a notice under new paragraph 63(4)(c) (see item 15), the person's payment can be
cancelled under section 80 as the payment is not payable to the person under
section 64. The person is then subject to a 28 day waiting period commencing on the
date of cancellation (see items 6 and 8), making it necessary to amend the start date
provision in subparagraph 15(b)(i) of Schedule 2.
Division 2 - Consequential amendments
Farm Household Support Act
Item 30 inserts new paragraph 94(na) after paragraph 94(n). Section 94 provides
that various provisions of the Social Security Act do not apply in relation to the
operation of the Farm Household Support Act. The insertion of new
paragraph 94(na) by this item will ensure that the new drug test repayment deduction
provisions in Part 3.16C of the Social Security Act (inserted by item 11) will not apply
to payments made under the Farm Household Support Act.
Item 31 amends the table in section 95 to insert new item 1A. The table in
section 95 modifies the way that particular provisions of the Social Security Act can
apply in relation to payments made under the Farm Household Support Act.
New item 1A will operate to ensure that paragraph (c) of the definition of drug test
trial pool member in subsection 23(1) of the Social Security Act (inserted by item 1)
applies to the Farm Household Support Act as if the words '(other than farm
household allowance)' were inserted after 'Newstart Allowance' and after 'Youth
Allowance'. The purpose of this amendment is to ensure that a person who receives
farm household allowance is not to be treated as a drug test trial pool member for
the purposes of the drug test trial established under this Bill.
Item 32 amends the table in section 99 to insert new item 13A after item 13 of the
table. The table in section 99 modifies the way that particular provisions of the Social
Security Administration Act can apply in relation to payments made under the Farm
Household Support Act.
22
Schedule 1 - Amendments
New item 13A will operate to ensure that paragraph (b) of the definition of potential
drug test trial pool member in subclause 1(1) of Schedule 1 to the Social Security
Administration Act (inserted by item 28) applies to the Farm Household Support Act
as if the words '(other than farm household allowance)' were inserted after 'Newstart
Allowance' and after 'Youth Allowance'. The purpose of this amendment is to ensure
that a person who receives farm household allowance is not to be treated as a
potential drug test trial pool member for the purposes of the drug test trial
established under this Bill.
Part 2 - Amendments with contingent commencements
Division 1 - Amendments relating to jobseeker payment
Farm Household Support Act
Items 33 and 34 amend the Farm Household Support Act to substitute the reference
to Newstart Allowance with a reference to Jobseeker Payment. This amendment
picks up the changes made as a result of the creation of the Jobseeker Payment
under Schedule 1 of the Social Services Legislation Amendment (Welfare Reform)
Bill 2017.
Social Security Act
Items 33 to 41 substitute the reference to Newstart Allowance, or the allowance,
with a reference to Jobseeker Payment, or the payment. This amendment picks up
the changes made as a result of the creation of the Jobseeker Payment under
Schedule 1 of the Social Services Legislation Amendment (Welfare Reform) Bill
2017.
Social Security Administration Act
Items 42 and 43 substitute the reference to Newstart Allowance, with a reference to
Jobseeker Payment. This amendment picks up the changes made as a result of the
creation of the Jobseeker Payment under Schedule 1 of the Social Services
Legislation Amendment (Welfare Reform) Bill 2017.
Item 44 inserts transitional provisions relating to the amendments made by this Part.
Subitem 44(1) maintains the operation of a Newstart Allowance drug test refusal
waiting period after commencement, by providing that a person is taken to be subject
to that period in relation to Jobseeker Payment.
Subitem 44(2) maintains the operation of a drug test repayment deficit in relation to a
person, as if reference to a social security benefit after commencement included a
reference to Newstart Allowance.
Division 2 - Amendments relating to targeted compliance framework
23
Schedule 1 - Amendments
The amendments in this Division effectively reverse the effect of parliamentary
amendments that were made to Schedule 15 of the Social Services Legislation
Amendment (Welfare Reform) Bill 2017 (parliamentary amendments (17) to (20) in
Government sheet JC466 that were agreed to by the Committee of the Whole in the
Senate on 7 December 2017).
24
Schedule 1 - Amendments
Social Security Administration Act
Item 45 repeals and substitutes a new paragraph 42AC(1)(a). Section 42AC sets
out the circumstances when a person in receipt of a participation payment commits a
mutual obligation failure. Under paragraph 42AC(1)(a), the person commits a mutual
obligation failure when they fail to comply with a requirement that was notified to
them under subsection 63(2) or (4). Section 63 of the Social Security Administration
Act provides the Secretary with the power to require certain persons to do certain
things, such as attend appointments or provide information. New subparagraphs
42AC(1)(a)(i) and (ii) create exceptions to this failure where the requirement relates
to new paragraph 63(4)(c), in relation to new testing requirements for drug test trial
pool members.
Item 46 inserts into subparagraph 42AC(1)(c)(i) the words '(except a notice
containing a requirement described in subparagraph (a)(i) of this subsection)' after
the words 'subsection 63(2)'. Under subparagraph 42AC(1)(c)(i), a person in receipt
of a participation payment commits a mutual obligation failure if the person fails to
attend, or be punctual for, an appointment that the person was required to attend by
a notice under subsection 63(2). The addition of the words '(except where the notice
is of a kind described in subparagraph (a)(i) of this subsection)' at the end of
subparagraph 42AC(1)(c)(i), creates an exception to this failure where the notice
contains a requirement described in subparagraph 42AC(1)(a)(i) (that is, a
requirement that relates to new paragraph 63(4)(c), in relation to new testing
requirements for drug test trial pool members)..
Item 47 is a consequential amendment as a result of item 48. Item 47 inserts the
number '1' after the word 'Note' at the end of subsection 42AC(1).
Item 48 adds an additional note at the end of subsection 42AC(1) clarifying that
paragraph 63(4)(c) (relevant to paragraphs 42AC(1)(a) and (c)) relates to
requirements for drug test trial pool members.
25
Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
SOCIAL SERVICES LEGISLATION AMENDMENT
(DRUG TESTING TRIAL) BILL 2018
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.
Overview of the Bill
This Bill will, from 1 July 2018,(or from the first 1 October, 1 January or 1 April that
occurs not less than two months after the Bill receives Royal Assent), establish a two
year trial of drug testing for 5,000 new recipients of Newstart Allowance (NSA) and
Youth Allowance (other) (YA(o)) in three discrete locations.
The trial sites are Canterbury-Bankstown, New South Wales; Logan, Queensland
and Mandurah, Western Australia.
People who claim NSA or YA(o) on or after commencement of the trial (intended to
be 1 July 2018) and reside in a trial location will be eligible for the trial. People
claiming NSA or YA(o) on or after this date will be asked to acknowledge in their
claim that they may be required to participate in the drug testing trial. Claims will be
unable to be determined unless this has been acknowledged by claimants who live
in the trial locations at the time of their claim.
Recipients who are selected for testing will be notified of a requirement to attend an
appointment with the Department of Human Services. At this appointment they will
be notified of a requirement to provide a sample of saliva, urine or hair for the
purposes of a drug test. Testing will be undertaken by a contracted third party
provider in accordance with a set of drug testing rules which will be set out in a
legislative instrument. The rules will cover issues relating to the conduct of the test to
ensure that testing is conducted appropriately and in accordance with relevant
standards. The contracted testing provider will be required to provide notice of the
test results to the Department of Human Services.
Recipients who fail to attend this appointment will have their payment suspended
until they attend a rescheduled appointment as is currently the case for other types
of appointments. Those who have a reasonable excuse for missing their
appointment will have their payment restoration backdated. Should a job seeker
refuse to undertake the drug test, their payment will be cancelled and they will be
subject to a four week waiting period, if they subsequently re-claim.
Recipients who test positive to the initial drug test will become subject to Income
Management for a period of 24 months. The contracted testing provider will be
1
Statement of compatibility with human rights
required to provide a notice to the Department of Human Services for the purpose of
referring the job seeker to Income Management.
Job seekers will have the option to dispute the result of a positive test by requesting
a re-test which will be an analysis of the second part of the saliva, urine or hair
sample originally given. If the re-test result is also positive, the job seeker will have to
repay the cost of the test. Job seekers may also provide evidence to the drug testing
provider of circumstances that may affect the result of the drug test, such as a
prescription for medication. The drug test provider will consider this evidence when
interpreting the result of the person's drug test and will notify the Department of
Human Services if the result is invalid.
Job seekers who return a positive test result will also be subject to a second drug
test within 25 working days. If the job seeker tests positive to the second test, they
will need to repay an amount that will represent the cost of the test.
When required, repayment of positive drug tests will be by temporary reduction of
the job seeker's rate of payment at a rate determined by the Secretary through
legislative instrument. The rate of repayment will not be set at more than 10 per cent
of a person's instalment and financial hardship provisions will apply. The amount of
the test to be repaid will be set out in a legislative instrument, and will not be more
than the lowest price of any type of drug test used in this trial and available to the
Department of Human Services.
Recipients who test positive to a second drug test during the trial period will be
referred to a suitably qualified health professional for assessment of their drug use
issues and the recommendation of any treatment appropriate to the individual's
circumstances. Based on the report from the medical professional, where
appropriate, recipients will be required to complete one or more activities designed to
address their substance abuse as part of their Job Plan, such as rehabilitation,
counselling or ongoing drug testing.
Recipients with a drug treatment activity in their Job Plan may still be required to
undertake other activities, including job search, depending on their circumstances.
Job search or other activities may be reduced depending on treatment requirements.
Intensive treatment which precludes participation in other activities would fully meet
mutual obligation requirements. Job seekers who fail to comply with their Job Plan
will be subject to normal compliance actions.
Reasonable excuse provisions continue to apply, with the exception of drug or
alcohol use reasons under the related proposal Tightening Reasonable Excuse for
Non-compliance Due to Drug or Alcohol-Related Reasons. Under this measure, a
person will not be able to continue to use drug or alcohol use issues as a reasonable
excuse for not meeting their mutual obligation requirements if they have refused to
engage in available and appropriate treatment. This measure is subject to the
passage of the Social Services Legislation Amendment (Welfare Reform) Bill 2017. .
2
Statement of compatibility with human rights
Human rights implications
Rights under the International Covenant on Economic, Social and Cultural
Rights (ICESCR)
This Bill engages a numbers of rights under the ICESCR as outlined below.
Limitations on these rights are permissible where they are: determined by law;
compatible with the nature of the rights in the treaty in question; seek to achieve a
legitimate objective; and are a reasonable and proportionate means of achieving that
objective. Measures that limit rights in a way that meets these requirements will be
consistent with those rights.
The drug testing trial will be provided for by law under the amendments in this Bill.
The trial has two key objectives - it seeks to:
maintain the integrity of, and public confidence in, the social security system
by ensuring that tax-payer funded welfare payments are not being used to
purchase drugs or support substance abuse;
provide new pathways for identifying recipients with drug abuse issues and
facilitating their referral to appropriate treatment where required.
Substance abuse can be a major barrier to social and economic participation.
Administrative data from the Department of Human Services shows that, for some
job seekers, substance abuse is directly impacting their ability to undertake job
search and other activities to help them gain employment. The number of job
seekers using drug or alcohol abuse as an excuse for not meeting their requirements
increased by 131 per cent between 2015 and 2016 while the number exempt from all
requirements due to drug or alcohol dependency increased by 80 per cent between
2011 and 2016.
While there are a number of existing mechanisms for identifying job seekers with
drug abuse issues, including through reasonable excuse and exemption
arrangements, these mechanisms generally rely on self-disclosure by the job seeker
and the disclosure is often only once the job seeker's drug misuse has directly
impacted their ability to meet their mutual obligation requirements,
The amendments in this Bill will trial drug testing as a new means of identifying job
seekers for whom drug abuse is (or may become) a barrier to work, providing a
disincentive for further drug use and supporting those with ongoing drug abuse
issues to seek treatment.
This Bill meets the requirements for permissible limitations on rights under the
ICESCR as outlined below and is therefore consistent with these rights
Right to social security (Article 9), the right to an adequate standard of living (Article
11) and the rights of the family and child to special protection and assistance
Article 9 of the ICESCR recognises the right of everyone to social security. The right
to social security requires parties to establish a social security system and, within
their maximum available resources, ensure access to a social security scheme that
provides 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,
3
Statement of compatibility with human rights
water and sanitation, foodstuffs, and the most basic forms of education.
Article 11(1) recognises the right of everyone to an adequate standard of living for
themselves and family, including adequate food, clothing and housing, and to the
continuous improvement of living conditions. The right to an adequate standard of
living is closely connected to the right to social security.
Article 10 provides for the rights of family and child to special protection and
assistance. These rights also overlap substantially with other rights in the ICESCR,
particularly the right to social security and an adequate standard of living. In light of
the close relationship between these rights, it is considered that the arguments set
out below apply to a person's rights under articles 9, 10 and 11(1) of the ICESCR.
Australia's social security system is underpinned by a key principle that people of
working age who have the capacity to work and become self-sufficient should do all
they can to achieve this. In line with this principle, recipients of Newstart Allowance
and Youth Allowance (other) are subject to range of obligations in return for
taxpayer-funded income support which reflect the purpose of these payments - to
support people while they look or prepare for work.
The amendments in this Bill will trial random drug testing as a new condition for the
receipt of Newstart Allowance or Youth Allowance (other). People claiming these
payments in the trial locations will be required to acknowledge this new condition in
order for their claim to be granted. This is designed to ensure that these claimants
are aware of and willing to meet the new conditions that apply under the trial. Job
seekers who later refuse to undertake a drug test where required will have their
payments cancelled and a four week waiting period will apply when re-claiming.
These consequences reflect that job seekers are expected to meet all their
obligations, including random drug testing for those in the trial, in return for their
payments.
Recipients who are subject to this measure and who test positive to a drug test will
not lose access to income support. Those who return a positive drug test will be
placed on Income Management, which limits the amount of money a job seeker can
receive as cash and therefore their capacity to expend their payments on drugs.
Income management does not reduce the total amount of income support available
to a person, just the way in which they receive it. Under Income Management, a
majority portion of a job seeker's normal payment is quarantined and the remaining
amount is paid into their regular bank account and is accessible as cash. Job
seekers placed on Income Management under this trial will still be able to purchase
items at approved merchants and pay rent and bills with their quarantined funds.
However, the recipient will not be able to use their quarantined funds to withdraw
cash, gamble, buy alcohol, tobacco products, pornography or cash-equivalent
products (such as gift cards).
Income Management is already used as a welfare quarantining mechanism in a
number of locations across Australia as a means of assisting recipients to manage
their finances to meet their essential living costs, including food and housing.
Evidence collected on Income Management in Western Australia indicates that the
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Statement of compatibility with human rights
program is improving the lives of many Australians. It has given many participants a
greater sense of control of money, improved housing stability and purchase restraint
for socially harmful products, while reducing a range of negative behaviours in their
communities including drinking and violence.
Job seekers who return a positive test result will also be subject to a second drug
test within 25 working days. If the job seeker tests positive to the second test, they
will need to repay the an amount representing the cost of the test.
Job seekers who test positive to a second or subsequent drug test will need to be
repay the cost of the test through a temporary reduction of their social security
instalment. Consistent with the objective of trial, this repayment requirement is
designed to discourage future drug use and potential positive test results. It is
intended that the trial will utilise up to three different testing methods which may have
varying costs. To ensure that all job seekers are treated consistently, irrespective of
the testing method used in their case, and the amount of the test to be repaid will be
set at the lowest cost option. In addition, the rate of repayment will not be set at more
than 10 per cent of a person's instalment, with the option to reduce this percentage,
including to zero, in cases of financial hardship. The repayment reduction will only
apply to the recipient's income support payment. Any payments made to parents for
the maintenance of their children, such as Family Tax Benefit, or to meet childcare
costs, would not be affected. These arrangements are designed to ensure that job
seekers will not be put in the position of being unable to meet their basic needs or
those of their family as a result of the requirement to repay the cost of a positive test.
Job seekers who test positive to more than one drug test will be referred to a medical
professional for assessment of any appropriate treatment options. If the assessment
recommends treatments, the job seeker will be required to have a treatment activity
included in their Job Plan. As per existing arrangements, job seekers who fail to
meet their activity requirements under their Job Plan (including any drug treatment
activity requirements under this trial where appropriate treatment is available) may
be subject to a financial penalty. Compliance action such as this is a standard
feature under the social security law, and the placing of qualifying conditions on
social security benefits (and the enforcement of those conditions) is permissible
under article 9 where they are reasonable and proportionate to the objective of the
policy. As noted above, a key objective of this trial is to assist job seekers with drug
misuse issues to address their barriers to employment. Where a job seeker has been
assessed by a medical professional as needing treatment, it is reasonable to expect
the job seeker to pursue treatment as part of their Job Plan and to be subject to
proportionate consequences if they fail to do so.
It is, however, important to note that the vulnerability of people and the impact of
their circumstances on their ability to comply with their mutual obligation
requirements is considered under social security law through reasonable excuse and
exemption provisions, and delegates have significant discretionary powers regarding
the application of compliance actions to consider the circumstances of each
individual case.
In addition, the availability of appropriate treatment will be taken into consideration in
determining the requirements that should be included in a person's Job Plan. Job
seekers will not be penalised if treatment is not available or there is a delay in being
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Statement of compatibility with human rights
able to access treatment. In this case, job seekers will be able to meet their
treatment requirement by demonstrating a commitment to pursuing treatment when it
is available (for example, being on a waiting list) and participating in other approved
activities, tailored to their circumstances in the meantime.
To the extent that this trial may limit a job seeker's rights under article 9 and
article 11, this limitation is reasonable and proportionate to the objective of the trial
as outlined above. There are appropriate safeguards in place to ensure that job
seeker's participating in the trial are still provided with the means to meet their basic
needs and those of their families.
Right to equality and non-discrimination
Article 2(2) of the ICESCR recognises the right of persons to equality and not to be
discriminated against in the enjoyment of their rights under the ICESCR.
This Bill engages the right to equality and non-discrimination in that it will result in
differential treatment on the basis of a job seeker's location. The use of drug testing
as a condition of payment is being implemented as a trial in three areas only in order
to assess the effectiveness of this type of intervention in achieving the objectives
outlined above, namely ensuring taxpayer-funded income support payments are
used appropriately and identifying job seekers with drug misuse issues and
facilitating their referral to treatment where appropriate. There are a number of
existing place-based arrangements provided for in the social security law, including
Income Management and the Cashless Debit Card trial.
To the extent that this Bill limits the right to equality and non-discrimination for those
in a drug testing trial location, this is reasonable and proportionate to the objective of
a trial. The trial will be subject to a comprehensive evaluation which will build
evidence of the effectiveness of this type of intervention in helping job seekers with
drug abuse issues, and inform any decisions about extending the trial or rolling out
drug testing more broadly.
The drug testing trial also engages the right to equality and non-discrimination
insofar as it may involve a direct or indirect distinction on the basis of disability or
illnesses associated with drug or alcohol dependency. While the drug testing trial is
not specifically aimed at Indigenous Australians, statistics suggest that Aboriginal
and Torres Strait Islander people experience disproportionately high levels of
substance misuse compared to the Australian population generally.1 On this basis,
there may be indirect differential treatment on the basis of race.
This measure seeks to trial new ways of identifying people with drug use issues and
assisting them to enter treatment where this is required to address their barriers to
work. Individuals will be selected for drug testing at random. To the extent that
certain cohorts may be more likely to test positive and that this may represent a
limitation on the right to equality and non-discrimination (whether direct or indirect),
this is reasonable and proportionate to the objectives of the trial
1
Closing the Gap - Prime Minister's Report 2016, accessible at https://www.dpmc.gov.au/resource-
centre/indigenous-affairs/closing-gap-prime-ministers-report-2016.
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Statement of compatibility with human rights
Obligations under the Convention on the Elimination of all forms of Racial
Discrimination (CERD) and the Convention on the Rights of Persons with
Disability (CPRD)
To the extent that the drug testing trial engages the right to non-discrimination,
including on the basis of race or disability, the trial also engages Australia's
obligations under the CERD to eliminate all forms of racial discrimination and under
the CPRD. The rights of persons with a disability expressed in the CRPD largely
mirror those economic and social rights set out in the ICESCR, and include rights to
habitation and rehabilitation, the highest attainable standard of health and
reasonable accommodation.
As noted above, it is intended that recipients will be selected for testing on the basis
of their risk factors for having drug misuse issues. To the extent that certain cohorts
may be more likely to test positive, this constitutes legitimate differential treatment
and does not discriminate on the basis of race or disability.
Obligations under the Convention on the Rights of the Child (CRC)
The drug testing trial engages with the rights under the CRC as it is applied to
people with children. Article 3 provides that in all actions concerning a child, the best
interests of the child will be a primary consideration. This measure is intended to
achieve the objectives of ensuring appropriate use of welfare payments (including to
meet essential living costs for recipients and their families) and identifying drug use
and helping people who require it to seek treatment. These objectives are in line with
article 3 of CRC. Supporting and encouraging recipients to address their drug
misuse issues will improve their capacity to find work and support themselves and
their children. As noted above in relation to the rights under the ICESCR, including
the rights of family and child to special protection and assistance, there are
appropriate safeguards in place to ensure that job seekers participating in the trial
are still provided with the means to meet their basic needs and those of their
families.
Obligations under the International Covenant on Civil and Political Rights
(ICCPR)
Right to equality before the law
Article 26 of the ICCPR provides that 'all persons are equal before the law and are
entitled without any discrimination to the equal protection of the law'. It also provides
that the law must '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'. The Human Rights Commission has also interpreted 'other status' to
include disability.2
The drug testing trial engages with this right, however article 26 is subject to the
principle of legitimate differential treatment, similar to Australia's obligations under
the CERD to eliminate all forms of racial discrimination and under the CPRD which
2
See HRC Concluding Observations on Ireland, (2000) UN Doc. CCPR/CO/70/TTO, [11].
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Statement of compatibility with human rights
are discussed above. For the same reasons, the drug testing trial is considered to
be consistent with article 26.
Right to privacy
The drug testing trial engages article 17 of the ICCPR which affords the right to
protection against arbitrary or unlawful interference with their privacy, family, home
or correspondence. Lawful interferences with the right to privacy are permitted
provided they are not arbitrary. The right to privacy extends to protecting a person's
bodily integrity against compulsory procedures, such as drug testing.
Mandatory drug testing is not prohibited under international human rights law;
however it must be necessary and proportionate to achieving a legitimate objective.
The drug testing trial is a reasonable and proportionate limitation on the right to
privacy under the ICCPR in order to achieve the objective of ensuring appropriate
use of welfare payments and identifying people with drug misuse issues and
assisting them to address those issues.
People who return a positive test will be placed on Income Management for a two
year period to help them to manage their finances and limit their access to cash
which could be spent on further harmful drug use. Other elements of the measure,
including the compulsory referral to health professionals for assessment if more than
one positive test is returned during the trial period and subsequent inclusion of
appropriate treatment in a person's Job Plan, are also reasonable and proportionate
to achieving these objectives.
This trial will be subject to the existing safeguards in the Privacy Act 1988 and the
confidentiality provisions in the Social Security (Administration) Act 1999 which
protect the collection, use and disclosure of protected information. A joint Privacy
Impact Assessment by the Department of Human Services and the Department of
Social Services is being conducted for this measure and will be submitted to the
Office of the Australian Information Commissioner to ensure implementation of the
measure minimises privacy law risks.
Rights of the child to special protection and assistance
This right is substantially similar right to that in article 10(3) of the ICESCR which is
considered above. For the same reasons, the drug testing trial is considered to be
consistent with the rights of the child to special protection and assistance.
Conclusion
This Bill is compatible with human rights because, to the extent that it may impact
human rights, the impact is for a legitimate objective, and is reasonable, necessary
and proportionate as outlined above.
[Circulated by the authority of the Minister for Social Services,
the Hon Dan Tehan MP]
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