Social Security (Administration) Amendment (Continuation of Cashless Welfare) Bill 2020 and Related Instruments [2020] AUPJCHR 173 (26 November 2020)

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1.85 The bill seeks to amend the Social Security (Administration) Act 1999 (the Act) to establish the Cashless Debit Card scheme as a permanent measure in locations which are currently 'trial sites', as well as to transition the Northern Territory and Cape York areas from income management to cashless welfare. Currently, the cashless welfare trials and the Cape York income management scheme are due to cease operation on 31 December 2020.^[3] The bill would also amend the stated objectives of the cashless debit card, providing that instead of the objective of determining whether the reduction in the amount of certain restrictable payments decreases violence or harm in trial areas, and whether such arrangements are more effective when community bodies are involved, it would instead be to support participants 'with their budgeting strategies'.^[4]

1.86 The bill would create, or continue, different eligibility criteria for cashless welfare program participants in the different geographical areas:

1.87 The bill would retain the existing cashless welfare and income management restriction rates. That is, persons subject to the cashless debit card would have 80 per cent of their welfare payments restricted,^[14] or between 50 and 70 per cent in the case of persons in Cape York or the Northern Territory.^[15] However, the Act provides that the Secretary may vary the restricted portion of a welfare payment amount up to 100 per cent for individuals.^[16] The bill also seeks to enable the minister to, by notifiable instrument, vary the percentage of restricted welfare payments for a group of persons in the Northern Territory to a rate of up to 80 per cent.^[17]

1.88 The bill also seeks to amend the process by which reviews of the cashless welfare measure are subsequently evaluated, removing the requirement that the evaluation be completed within six months, and be conducted by an independent evaluation expert with significant expertise in the social and economic aspects of welfare policy, who must consult participants and make recommendations.^[18]

1.89 A person subject to cashless welfare could seek an exemption from the scheme, and would bear the onus of producing evidence to demonstrate that they are either suitable to be exempted, or that continued participation would cause serious risk to their physical or mental health.^[19] The Social Security (Administration) (Exempt Welfare Payment Recipients – Principal Carers of a Child) (Indications of Financial Vulnerability) Principles 2020 similarly sets out the decision-making principles which the Secretary must comply with when considering whether a person should be exempt from income management under the disengaged youth and long-term welfare payment recipient income management measures. It likewise causes the individual to bear the burden of producing evidence to satisfy the Secretary pursuant to the instrument.

Preliminary international human rights legal advice

Multiple rights

1.90 The cashless welfare arrangements outlined in this bill engages and may promote a number of human rights.^[20] For example, as noted in the statement of compatibility,^[21] restricting a substantial portion of a person's welfare payments may promote the right to an adequate standard of living in some instances, to the extent that quarantining those funds means that the individual is not able to spend the money on items other than essential goods such as groceries and bills. The right to an adequate standard of living requires that the State party take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in its jurisdiction.^[22] In particular the right to housing (which is part of the right to an adequate standard of living) may be advanced if the measures help to ensure that a portion of a person's income support payments is spent on rent. Further, as noted in the statement of compatibility, by ensuring that a portion of welfare payments is available to cover essential goods and services, this measure may have the capacity to improve the living conditions of children of welfare recipients.^[23] This may have the effect of promoting the rights of the child. Children have special rights under human rights law taking into account their particular vulnerabilities.^[24] Children's rights are protected under a number of treaties, particularly the Convention on the Rights of the Child. All children under the age of 18 years are guaranteed these rights, without discrimination on any grounds.^[25] In particular, the right of a child to benefit from social security, and the rights of the child to the highest attainable standard of health and to an adequate standard of living^[26] may be advanced by these measures as they could help to ensure income support payments are used to cover minimum basic essential goods and services necessary for the full development of these rights.

1.91 The cashless welfare arrangements outlined in this bill also engage and limit a number of other human rights, including the right to privacy,^[27] right to social security,^[28] and right to equality and non-discrimination.^[29]

1.92 The bill engages and limits the rights to privacy and social security as it significantly intrudes into the freedom and autonomy of individuals to organise their private and family lives by making their own decisions about the way in which they use their social security payments. The right to privacy is linked to notions of personal autonomy and human dignity. It includes the idea that individuals should have an area of autonomous development; a 'private sphere' free from government intervention and excessive unsolicited intervention by others. The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and in preventing social exclusion and promoting social inclusion,^[30] and enjoyment of the right requires that social support schemes must be accessible, providing universal coverage without discrimination.

1.93 The statement of compatibility provided with respect to the proposed amendments largely mirrors the information provided with respect to earlier proposed extensions of the cashless welfare trial. The statement of compatibility recognises that the bill engages the right to a private life and the right to social security but states that the measures in the bill do not detract from the eligibility of a person to receive welfare, or reduce the amount of their social security entitlement. They merely limit how payments can be spent and provide 'a mechanism to ensure that certain recipients of social security entitlements are restricted from spending money on alcohol, gambling and drugs'.^[31]

1.94 The measure also engages the right to equality and non-discrimination. This right provides that everyone is entitled to enjoy their rights without discrimination of any kind, which encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute.^[32]

non-discrimination is not directly limited by these measures. It states that the program is not applied on the basis of race or cultural factors, and that locations for the program have been chosen based on objective criteria including high levels of welfare dependence, and community harm.^[33] However, while the measure may not directly limit the right to equality and non-discrimination it would appear to indirectly limit this right given the measure’s significantly disproportionate impact on Indigenous Australians. The committee's 2016 report, which examined income management in the Northern Territory, noted that around 90 per cent of those subject to income management in the Northern Territory were Indigenous.^[34] At March 2017, 75 per cent of participants in the Ceduna trial area, and 80 per cent of participants in the East Kimberley, were Aboriginal and/or Torres Strait Islander.^[35] In 2019, 43 per cent of participants in the Goldfields trial site were Indigenous.^[36]

1.96 Limits on the above rights may be permissible where a measure seeks to achieve a legitimate objective, is rationally connected to (that is, effective to achieve) that objective, and is proportionate to that objective.

1.97 The statement of compatibility provides that cashless welfare aims to 'support communities where high levels of welfare dependence coexist with high levels of social harm by limiting the amount of welfare payment available as cash in a community', and aims to 'ensure that income support payments are spent in the best interests of welfare payment recipients and their dependents, and in line with community expectations'.^[37] The bill would also amend the stated objectives of the cashless debit card scheme, such that it would now state that the objective of the scheme is to reduce the amount of certain restrictable payments available to be spent on alcoholic beverages, gambling and illegal drugs; support participants with their budgeting strategies; and encourage socially responsible behaviour.^[38]

1.98 It is likely that combatting social harms caused by the use of harmful products including alcohol and illicit drugs would constitute a legitimate objective for the purposes of international human rights law.^[39]

1.99 In relation to whether the measures are, or will be, effective to achieve their stated objectives, the statement of compatibility cites an independent evaluation of the cashless welfare trial in Ceduna and East Kimberley in 2017, and a report on baseline data collection in the Goldfields trial site in 2019.^[40] It notes that these evaluations found that cashless welfare had a positive impact, including by reducing alcohol consumption and the use of illegal drugs, as well as some evidence of consequential reductions in violence and harm.^[41]

1.100 However, the 2017 trial evaluation cited in the statement of compatibility also contains some other more nuanced and mixed findings on the operation of the scheme,^[42] which are not cited in the statement of compatibility. In addition, the methodology employed in the course of this 2017 study has been the subject of some criticism. In 2018 the Australian National Audit Office (ANAO) conducted a performance audit of the cashless welfare trial.^[43] The audit found that the department's approach to monitoring and evaluation was inadequate, meaning that it was difficult to conclude whether there had been a reduction in social harm and whether the card was a lower cost welfare quarantining approach.^[44]

1.101 The statement of compatibility also cites the 2019 baseline data collection study in the Goldfields trial site by the University of Adelaide.^[45] It states that in this report, a majority of respondents considered that early impacts were starting to be observed, including 'a reduction in levels of substance misuse, a decrease in

alcohol-related anti-social behaviour and crime, improvements in child welfare, and improvements in financial literacy and management'.^[46] However, this report also contains some other more mixed findings on the operation of the scheme at the Goldfields trial site, which are not discussed in the statement of compatibility.^[47]

1.102 The results of these trial evaluations are a critical component of demonstrating a rational connection between cashless welfare and its intended objectives. The mixed results of these two evaluations, and other studies, provide some positive results as to the effectiveness of the trials but also raise some questions as to the efficacy of the cashless debit card scheme in achieving the stated objectives (including reducing the amount of payments available to be spent on alcohol, gambling and illegal drugs, and encouraging socially responsible behaviour).^[48] They also raise questions as to whether the cashless debit card scheme would, in practice, promote the rights set out in paragraph [1.90].

1.103 The statement of compatibility also notes that the University of Adelaide is conducting a second impact evaluation in Ceduna, East Kimberley and Goldfields, as well as a baseline data collection in the Bundaberg and Hervey Bay region.^[49] It states that this was to assess the ongoing effectiveness of the program, build on the initial results, and further develop a rigorous evidence base for the cashless debit card.^[50] It states that this second impact evaluation would be published from late 2019. However, the evaluation does not appear to have been published,^[51] and no information is provided as to any such findings, or the status of any such second evaluation. In particular, the most recent trial evaluation, published in February 2019, notes that at the time of the interviews conducted, the cashless debit card had only been implemented for a few months.^[52] The statement of compatibility does not explain why the bill proposes establishing cashless welfare as an ongoing measure before these trial evaluations have been completed, published, and considered. It is also noted that the bill seeks to alter the existing legislative requirement that trial reviews be subsequently evaluated by an expert within six months of the trial results being published.^[53] As it stands, no independent evaluations of the two reviews of the cashless welfare trial have been undertaken.^[54]

1.104 The existence of adequate and effective safeguards, to ensure that limitations on human rights are the least rights restrictive way of achieving the legitimate objective of the measure, is relevant to assessing the proportionality of these limitations. In assessing whether a measure is proportionate, relevant factors to consider include whether the measure provides sufficient flexibility to treat different cases differently or whether it imposes a blanket policy without regard to the circumstances of individual cases.^[55]

1.105 The cashless welfare card scheme is imposed without an assessment of individuals' suitability for the scheme. The measure applies to anyone residing in a specified geographical location who receives specified social security payments. No assessment is required that a person subject to the scheme has been using their funds on alcohol, gambling or illicit drugs, or that they are likely to do so. By making cashless welfare an ongoing measure any such person would be indefinitely subject to these cashless welfare conditions, unless those conditions were varied by the secretary, but this would require the participant to bear the onus of producing evidence to demonstrate that they should no longer be subject to cashless welfare restrictions.^[56] Even persons who have never spent their money on alcohol, gambling or illegal drugs would be subject to these arrangements, solely because they reside in one of the specified geographical locations and receive a relevant social welfare payment. This raises significant concerns as to whether the measure provides sufficient flexibility and is the least rights restrictive way of achieving the stated objectives.

1.106 There are also concerns as to whether the cashless debit card scheme may have unintended consequences that would impact on the proportionality of the measure. For example, the committee's 2016 review noted that evaluations had found that compulsory income management, rather than encouraging people to take control of their financial wellbeing, may produce negative effects, including feelings of stigmatisation.^[57] In addition, the 2019 baseline data collection study undertaken in the Goldfields trial site^[58] noted that trial participants had been unable to participate in the market for second-hand goods, to pool funds for larger purchases, to make small transactions in cash-based settings, or to complete some online transactions.^[59] It noted concerns about the potential for stigma and discrimination and noted feedback from many cashless welfare participants that the trial should be better targeted at those people with alcohol and drug issues, and/or who have neglected their children, with the card considered particularly unsuitable for people with disability, including those with mental health conditions.^[60] It also noted a number of practical concerns about the workability of the cashless welfare card.^[61]

1.107 The statement of compatibility outlines what it describes as 'General safeguards', being four measures which have been incorporated to 'help protect human rights'.^[62] Firstly, it notes that the rollout of the cashless debit card 'has been and continues to be the subject of an extensive community consultation and engagement process', advising that:

1.108 It is helpful that information sessions have been held informing key community leaders and organisations about the fact that the scheme was being rolled-out, and advising those communities about how the cashless welfare card will operate. However, the value of this as a safeguard is limited given that it does not appear to be a two-way deliberative process of dialogue in advance of a decision to progress the scheme, allowing for a discussion with community leaders about whether the community wants to participate in the scheme. This is evidenced from the fact that the regulation impact statement included in the explanatory memorandum describes the process carried out in the Northern Territory and Cape York with communities affected as 'post-decision' consultation.^[64]

1.109 In addition, the process described appears to deal only with the transition from income management to the cashless debit card in the Northern Territory and Cape York. The statement of compatibility is silent on what consultation was undertaken in relation to making the cashless debit card scheme ongoing in relation to the trial sites. The regulation impact statement sets out the date of consultations with communities in Ceduna, East Kimberley, the Goldfields region and Bundaberg and Hervey Bay. These dates range from April 2015 to December 2017 at the latest.^[65] Therefore, no evidence has been provided that demonstrates that consultation was undertaken with affected communities in the trial site as to whether such communities wanted the cashless debit card scheme to be implemented permanently in those locations.^[66]

1.110 The second general safeguard described in the statement of compatibility is the conduct of evaluations of the cashless welfare trial. The statement of compatibility notes that the government is currently conducting a second evaluation of the cashless welfare trial across the first three trial sites in order to 'assess the ongoing effectiveness of the trial', and states that this will 'continue to build on initial results and further develop a rigorous evidence base for the Cashless Debit Card'.^[67] It explains that this evaluation will draw on the data and methodology developed as part of the Goldfields baseline data collection, and use data collected through program monitoring. The use of such evaluations can constitute an important safeguard with respect to proportionality, as they can be used to ensure that the scheme will only continue where the benefits of the scheme in achieving its legitimate objectives outweigh any negative impact on human rights. However, as discussed above, this evaluation is not yet publicly available, and no information is provided as to why the bill proposes expanding cashless welfare before that evaluation has been completed and reviewed. Further, as set out above, the trial reviews conducted to date have elicited a number of mixed findings relating to the success of the cashless welfare trials and it is not clear that the evaluation findings were considered when the decision was made to expand the existing cashless welfare measures. Finally, it is not clear how future evaluations of the cashless debit card scheme would operate to safeguard human rights given that the measure is proposed to be made ongoing, regardless of the results of any evaluation. No information has been provided as to why it is proposed that cashless welfare should be established as an ongoing measure before a contemporaneous evaluation has been completed, and its results used to inform a future decision as to the efficacy of the measure on a trial basis.

1.111 The third general safeguard identified in the statement of compatibility relates to the mechanism by which a person may apply to exit the cashless welfare arrangements.^[68] Section 124PHB of the Act allows a person to apply to the Secretary to exit the cashless welfare trial where they can demonstrate reasonable and responsible management of their affairs (including their financial affairs). The bill would also allow the minister to determine, by legislative instrument, decision-making principles which the Secretary would be bound by in deciding whether they are satisfied that the person can demonstrate reasonable and responsible management of their affairs.^[69] Having some flexibility to ensure a person can exit the cashless debit card scheme assists with the proportionality of the measure. However, the scheme is still premised on the basis that all recipients of specified forms of social security are compulsorily included in the scheme, without any individual assessment as to the appropriateness of their inclusion. This measure would require the affected individual to apply to a government department and to provide evidence to demonstrate that they can reasonably and responsibly manage their affairs, including their financial affairs. Noting that such an applicant would already be subject to the cashless debit card scheme at the time of the application, with up to 80 per cent of their social security quarantined, it is not clear what evidence they could show to demonstrate that they could independently manage their financial affairs. As the onus is shifted onto the affected person to prove such matters and to make the application this lessens the effectiveness of this as a safeguard. This is particularly problematic given that once a person has exited the cashless welfare scheme they can still be required to re-enter it, and the processes through which this occurs are not contained in the bill.^[70]

1.112 The final general safeguard identified in the statement of compatibility relates to the wellbeing exemption contained in section 124PHA of the Act. This provides that the Secretary must determine that a person is not a program participant if the Secretary is satisfied that being on the program would pose a serious risk to the person's mental, physical or emotional wellbeing. The statement of compatibility states that this is determined on a case by case basis, taking into account the applicant's personal circumstances, which could assist with the proportionality of the measure. However, it is noted that the Act also provides that the Secretary is not required to inquire into whether a person being in the program would pose a serious risk to the person's mental, physical or emotional well-being.^[71] As such, unless the risk is somehow brought to the Secretary's attention, the person would remain a program participant. In addition, the threshold for the wellbeing exemption is set very high, with the requirement that participation in the program would pose a 'serious risk' to mental, physical or emotional wellbeing, rather than a risk of any sort. This lessens the value of this exemption process as a safeguard.

1.113 The cashless welfare measures contained in this bill, which would cause the cashless welfare trial to become an ongoing measure in certain geographical areas, may potentially promote a number of human rights, but also engage and limit a number of other rights, including the right to social security, privacy, and equality and non-discrimination. As set out above, the statement of compatibility provided with respect to the proposed amendments largely mirrors the information provided with respect to earlier proposed extensions of the cashless welfare trial. There is limited information in the statement of compatibility on which to base an assessment of the proposed permanency of cashless welfare in these locations. The proposal to establish cashless welfare as an ongoing measure, and a permanent fixture in particular geographical locations, is a substantially different proposal to establishing a time-bound trial of such a measure. The trial evaluations and reviews raise a range of concerns as to whether the cashless welfare scheme is effective to achieve its stated goals, and whether it has caused or contributed to other harms. This raises questions in assessing the compatibility of the current measure, which would make the scheme permanent in certain geographical locations, with human rights.

1.114 Further information is required in order to assess the proposed measures for compatibility with human rights, and in particular:

Committee view

1.115 The committee notes that the bill seeks to establish the cashless debit card scheme as a permanent measure in locations which are currently 'trial sites', and to transition the Northern Territory and Cape York areas from income management to the cashless debit card scheme.

1.116 The committee considers that the cashless debit card scheme engages and may promote a number of human rights, including the right to an adequate standard of living and the rights of the child. Restricting a substantial portion of a person's welfare payments may promote the right to an adequate standard of living as these funds may only be spent on essential goods such as groceries and bills, and in particular, may advance the right to housing if the measures help to ensure that a portion of a person's income support payments is spent on rent. Further, by ensuring that a portion of welfare payments is available to cover essential goods and services, this measure may improve the living conditions of children of welfare recipients, which may have the effect of promoting the rights of the child. In particular, the right of a child to benefit from social security, the right of the child to the highest attainable standard of health and to an adequate standard of living may be advanced by these measures as they could help to ensure income support payments are used to cover minimum basic essential goods and services necessary for the full development of these rights. In this regard, the committee reiterates its previous comments on the manner in which cashless welfare measures engage positive human rights.^[72]

1.117 The committee further notes that these measures may limit some human rights, including the right to privacy, social security, and equality and non-discrimination. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate. The committee considers the bill seeks to achieve a number of legitimate objectives, including reducing immediate hardship and deprivation, and encouraging socially responsible behaviour. However, some questions remain in relation to rational connection and proportionality.

1.118 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this bill, and as such the committee seeks the minister's advice as to the matters set out at paragraph [1.114].

[2] The related instruments are the Social Security (Administration) (Declared child protection State or Territory – Northern Territory) Determination 2020 [F2020L01224] and the Social Security (Administration) (Exempt Welfare Payment Recipients – Principal Carers of a Child) (Indications of Financial Vulnerability) Principles 2020 [F2020L01225].

[3] Coronavirus Economic Response Package (Deferral of Sunsetting—Income Management and Cashless Welfare Arrangements) Determination 2020 [F2020L00572].

[4] Schedule 1, Part 1, item 9, proposed subsection 124PC(b). Section 124PC of the Act currently provides that the objects of the cashless welfare arrangements are to: reduce the amount of certain restrictable payments available to be spent on alcoholic beverages, gambling and illegal drugs; determine whether such a reduction decreases violence or harm in trial areas; determine whether such arrangements are more effective when community bodies are involved; and encourage socially responsible behaviour.

[5] A 'category P' welfare payment means a social security benefit, or social security pension, or payment under the ABSTUDY scheme that includes an amount identified as living allowance (per Social Security (Administration) Act 1990, section 123TC). A 'social security benefit' means a widow allowance; youth allowance; Austudy payment; Newstart allowance; sickness allowance; special benefit; partner allowance; a mature age allowance under Part 2.12B; or benefit PP (partnered); or parenting allowance (other than non-benefit allowance). A 'social security pension' means an age pension; disability support pension; wife pension; carer payment; pension PP (single); sole parent pension; bereavement allowance; widow B pension; mature age partner allowance; or a special needs pension: see section 23 of the Social Security Act 1991.

[6] Schedule 1, Part 2, item 74, proposed section 124PGD.

[7] Schedule 1, Part 2, item 74, proposed section 124PGE.

[8] A category E welfare payment means youth allowance, Newstart allowance, special benefit, pension PP (single) or benefit PP (partnered): Social Security (Administration) Act 1990, section 123TC.

[9] The Social Security (Administration) (Declared child protection State or Territory – Northern Territory) Determination 2020 [F2020L01224] determines the Northern Territory as a ‘declared child protection State or Territory’ for the purposes of Part 3B of the Social Security (Administration) Act 1990. It repeals and re-makes the existing instrument, which is due to sunset.

[10] Under section 123UGA of the Social Security (Administration) Act 1990, the Secretary may determine that a person is a 'vulnerable welfare payment recipient' for the purposes of Part 3B of the Act. The term is not defined in the Act.

[11] A 'trigger payment' means a social security benefit (other than a mature age allowance); an ABSTUDY payment; or a social security pension of the following kind: a carer payment; a bereavement allowance; a disability support pension; a pension PP (single); a widow B pension; or a wife pension: see section 124PD of the Social Security (Administration) Act 1999.

[12] Social Security (Administration) Act 1990, sections 124PG, 124PGA and 124PGB, subject to the amendments proposed in Schedule 1, Part 2, items 66–71.

[13] Social Security (Administration) Act 1990, section 124PGC, subject also to the proposed amendment contained in Schedule 1, Part 2, items 72–73.

[14] Schedule 1, Part 2, item 82, proposed subsections 124PJ(1)(a)–(b).

[15] Schedule 1, Part 2, item 84, proposed subsections 124PJ(1)(1A)–(1D).

[16] Social Security (Administration) Act 1990, subsection 124PJ(3). The bill proposes to extend this power such that it could be exercised in relation to individuals in the Cape York and Northern Territory areas. See, Schedule 1, Part 2, items 90–92.

[17] Schedule 1, Part 2, item 87, proposed section 124PJ(2A). Proposed subsection 124PJ(2C) clarifies that where the Secretary has made an individual determination that one person's restricted rate of payment will be varied, a broader determination by this Minister varying rates of restriction for cohorts of participants would not impact that individual.

[18] Schedule 1, Part 3, item 114.

[19] Social Security (Administration) Act 1990, sections 124PHA-124PHB.

[20] As noted in the Parliamentary Joint Committee on Human Rights, Report 1 of 2020 (5 February 2020) pp. 132–142.

[21] Statement of compatibility, p. 35.

[22] International Covenant on Economic, Social and Cultural Rights, article 11.

[23] Statement of compatibility, p. 35.

[24] Convention on the Rights of the Child. See also, UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [1].

[25] UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [5]. See also International Covenant on Civil and Political Rights, articles 2 and 26.

[26] Convention on the Rights of the Child, articles 24, 26 and 27.

[27] International Covenant on Civil and Political Rights, article 17.

[28] International Covenant on Economic, Social and Cultural Rights, article 9.

[29] International Covenant on Civil and Political Rights, articles 2, 16 and 26 and International Covenant on Economic, Social and Cultural Rights, article 2. It is further protected with respect to people with disability by the Convention on the Rights of Persons with Disabilities,

article 2.

[30] UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [3]. The core components of the right to social security are that social security, whether provided in cash or in kind, must be available, adequate, and accessible. Whether the provision of the majority of a social security payment via a debit card, which limits the goods and services in relation to which those funds may be used, and prevents the payments being withdrawn and converted to cash, raises some questions as to whether cashless welfare fulfils the fundamental components of the right, in particular noting the geographical isolation of the relevant areas and the likely limited choices of shops and service providers; the potential poor mobile phone reception in these areas; and potentially also an absence of mobile phone or internet access on an individual level.

[31] Statement of compatibility, p. 30.

[32] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[33] Statement of compatibility, p. 33.

[34] Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016), p. 40.

[35] ORIMA, Cashless Debit Card Trial Evaluation – Final Evaluation Report, August 2017, p. 37.

[36] University of Adelaide Future of Employment and Skills Research Centre, Cashless Debit Card Baseline Data Collection in the Goldfields Region: Qualitative Findings, February 2019, p. 10.

[37] Statement of compatibility, p. 29.

[38] Schedule 1, Part 1, item 7, proposed subsection 124PC(b). Section 124PC of the Act currently provides that the objects of the cashless welfare arrangements are to: reduce the amount of certain restrictable payments available to be spent on alcoholic beverages, gambling and illegal drugs; determine whether such a reduction decreases violence or harm in trial areas; determine whether such arrangements are more effective when community bodies are involved; and encourage socially responsible behaviour.

[39] As previously set out in the Parliamentary Joint Committee on Human Rights, Report 1 of 2020 (5 February 2020), pp. 132–142.

[40] Statement of compatibility, p. 28.

[41] Statement of compatibility, p. 28.

[42] For example, the evaluation noted that there was no statistical decrease in violent crime at the trial sites, no substantive improvement in peoples' perception of safety at home or on the streets, and that there were efforts to circumvent income restriction including selling purchased goods for cash, and humbugging (or harassing and making unreasonable demands) of family members. See, ORIMA, Cashless Debit Card Trial Evaluation – Final Evaluation Report, August 2017, pp. 60–90.

[43] Australian National Audit Office, 'The Implementation and Performance of the Cashless Debit Card Trial', Auditor-General Report No.1 2018–19 Performance Audit, pp. 7–8.

[44] The audit also found that while arrangements to monitor and evaluate the trial were in place, key activities were not undertaken or fully effective, and the level of unrestricted cash available in the community was not effectively monitored The audit further found that there was a lack of robustness in data collection and the department's evaluation did not make use of all available administrative data to measure the impact of the trial including any change in social harm. The ANAO also found that the trial was not designed to test the scalability of the cashless debit card and there was no plan in place to undertake further evaluation, see Australian National Audit Office, 'The Implementation and Performance of the Cashless Debit Card Trial', Auditor-General Report No.1 2018–19 Performance Audit, pp. 7–8.

[45] Statement of compatibility, p. 28.

[46] Statement of compatibility, p. 28.

[47] For example, the report observes that the reductions in substance misuse levels during the time of the study may have been connected with concurrent policing and alcohol management interventions in the region, and so not a direct consequence of cashless welfare. The report further notes the development of 'workarounds' which trial participants used in order to gain access to alcohol, including pooling resources, and drinking cheaper forms of alcohol. University of Adelaide Future of Employment and Skills Research Centre (University of Adelaide), Cashless Debit Card Baseline Data Collection in the Goldfields Region: Qualitative Findings, February 2019, pp. 7 and 88.

[48] In addition, more contemporaneous studies have been conducted examining other specific elements of the cashless welfare trial, including its effects on: Indigenous mobility; homelessness; and perceptions of shame attached with use of the card. See, Australian Journal of Social Issues, vol. 55, no. 1, 2020. In particular: Eve Vincent et al, '“Moved on”? An exploratory study of the Cashless Debit Card and Indigenous mobility', pp. 27–39; Shelley Bielefeld et al, 'Compulsory income management: Combatting or compounding the underlying causes of homelessness?', pp. 61–72; Cameo Dalley, 'The “White Card” is grey: Surveillance, endurance and the Cashless Debit Card', pp. 51–60; and Elizabeth Watt, 'Is the BasicsCard “shaming” Aboriginal people? Exploring the differing responses to welfare quarantining in Cape York', pp. 40–50. See also Luke Greenacre et al, 'Income Management of Government payments on Welfare: The Australian Cashless Debit Card', Australian Social Work (2020)

pp. 1–14.

[49] Statement of compatibility, p. 29.

[50] Statement of compatibility, p. 29.

[51] The departmental website notes that a second evaluation of the Ceduna, East Kimberley and Goldfields trial sites is being undertaken, but does not advise when such results will be published. See, Department of Social Services 'Cashless Debit Card - Evaluation' https://www.dss.gov.au/families-and-children-programs-services-welfare-reform-cashless-debit-card/cashless-debit-card-evaluation (accessed 16 October 2020).

[52] University of Adelaide, Cashless Debit Card Baseline Data Collection in the Goldfields Region: Qualitative Findings, February 2019, p. 7.

[53] Schedule 1, Part 3, item 114.

[54] As section 124PS was only incorporated into the Act in 2018, the first review of the cashless welfare trial was not captured by this legislative requirement for a subsequent independent evaluation of the review.

[55] See, Dinah Shelton (ed), ‘Proportionality’, The Oxford Handbook of International Human Rights Law, pp. 450-468.

[56] See the discussion at paragraph [1.109] below in relation to the mechanism by which a person may apply to exit cashless welfare arrangements.

[57] Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016) pp. 57-59.

[58] Statement of compatibility, p. 28.

[59] University of Adelaide, Cashless Debit Card Baseline Data Collection in the Goldfields Region: Qualitative Findings, February 2019, p. 89.

[60] University of Adelaide, Cashless Debit Card Baseline Data Collection in the Goldfields Region: Qualitative Findings, February 2019, see pp. 75–76; 101; and 112–113.

[61] University of Adelaide, Cashless Debit Card Baseline Data Collection in the Goldfields Region: Qualitative Findings, February 2019, pp. 6–7, 68.

[62] Statement of compatibility, p. 20.

[63] Statement of compatibility, p. 29.

[64] Regulation impact statement, p. 35.

[65] Regulation impact statement, pp. 37-38.

[66] The importance of consultation is also noted. The principles contained in the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) are also relevant. The Declaration provides context as to how human rights standards under international law apply to the particular situation of Indigenous peoples (see in particular article 19). While the Declaration is not included in the definition of 'human rights' under the Human Rights (Parliamentary Scrutiny) Act 2011, it provides clarification as to how human rights standards under international law, including under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights apply to the particular situation of Indigenous peoples.

[67] Statement of compatibility, p. 29.

[68] Statement of compatibility, p. 29.

[69] Schedule 1, Part 1, item 37, proposed subsection 124PHB(7B).

[70] Social Security (Administration) Act 1990, section 124PHA.

[71] Social Security (Administration) Act 1990, subsection 124PHA(2).

[72] See, Parliamentary Joint Committee on Human Rights, Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019, Report 6 of 2019 (5 December 2019), pp. 39–53; and Report 1 of 2020 (5 February 2020), pp. 132–142.

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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2020/173.html

Purpose	This bill seeks to transition Income Management participants in the Northern Territory and Cape York region in Queensland onto the Cashless Debit Card and provide for the cashless welfare arrangements to continue as an ongoing measure The related instruments^[2] determine that the Northern Territory is a ‘declared child protection State or Territory’; and set out the decision-making principles that the Secretary must comply with, in deciding whether they are satisfied that there are no indications of financial vulnerability in relation to a person in the preceding 12 months
Portfolio	Social Services
Introduced	House of Representatives, 8 October 2020
Rights	Privacy; social security; equality and non-discrimination; adequate standard of living; rights of the child
Status	Seeking additional information

Australian Parliamentary Joint Committee on Human Rights