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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This legislative instrument provides for a new financial institution with
which a welfare restricted bank account may be held, and
specifies additional
terms and conditions relating to the ongoing maintenance and closure of a
welfare restricted bank account. It
also specifies two additional kinds of
businesses in relation to which transactions, involving money in a welfare
restricted bank
account, may be declined by a financial institution
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Portfolio
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Social Services
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the Senate and the House of
Representatives on 22 November 2021). Notice of motion to disallow
must be given
by the 7th sitting day in 2022 in both
Houses[2]
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Rights
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Privacy; social security; equality and non-discrimination
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1.31 This determination specifies an additional two business types in relation to which transactions involving money in a welfare restricted bank account may be declined by a financial institution.[3] As such, welfare recipients subject to the cashless welfare scheme would not be able to purchase goods at such businesses using their cashless debit card. The two newly listed business types are:
• businesses where there are reasonable grounds for believing the business engages in transactions that facilitate access by a cashless welfare participant to cash or cash-like products; and
• businesses that would, if the business were operating under the correct code, be a kind of business which has already been declared as one to which financial transactions may be declined.
1.32 As the committee has previously reported,[4] the cashless welfare scheme engages numerous human rights. As previously stated, restricting a substantial portion of a person's welfare payments may, in some instances, promote the right to an adequate standard of living and the rights of the child, to the extent that quarantining welfare means that the money can only be spent on essential goods such as groceries and housing.[5] However, the cashless welfare scheme also engages and limits a number of other human rights, including the right to privacy,[6] right to social security,[7] and the right to equality and non-discrimination.[8] The cashless welfare scheme 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. As the cashless welfare scheme disproportionately affects Indigenous Australians,[9] it also engages and limits the right to equality and non-discrimination.[10] This determination, by adding to the list of businesses where a person subject to the cashless welfare arrangements cannot spend the restricted portion of their welfare payments, also engages and limits these rights.
1.33 In general, these rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
1.34 The statement of compatibility recognises that the determination engages the rights to social security, self-determination and the right to a private life, but states that any limit on rights 'is reasonable and proportionate given the extensive social harm that exists'.[11] The explanatory statement explains that the transactions that may be declined include those where a business provides refunds in cash for permitted items purchased using a welfare restricted bank account, e.g. a business may overcharge participants for permitted goods, and then refund the amount of any overpayment in cash. The explanatory statement states that such practices 'undermine the objects of the cashless welfare program by increasing access to cash or cash-like products for program participants and voluntary participants'.
1.35 As previously stated in relation to the proposed continuation of the cashless welfare arrangements,[12] 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. However, it is not clear that the cashless welfare measures are effective to achieve these objectives, noting in particular, that the evaluations of the cashless welfare scheme have raised questions as to its effectiveness, and whether it has caused or contributed to other harms. Similarly, it is not clear that listing these additional businesses would be effective to achieve the stated objectives. In addition, it is not clear that the cashless welfare scheme constitutes a proportionate limitation on these rights, having regard to the absence of adequate and effective safeguards to ensure that limitations on human rights are the least rights restrictive way of achieving the legitimate objective, and the absence of sufficient flexibility within the scheme to treat different cases differently. In relation to this determination, it is not clear from the explanatory materials whether allowing any transaction with a business believed to be engaged in certain conduct to be declined, could have an adverse impact on the ability of people in remote communities to access certain goods and services. For example, if transactions made at the only grocery store in a remote town were able to be declined, it is not clear how cashless welfare participants could purchase groceries. If listing such businesses did prevent participants from being able to effectively access essential goods this could have implications for the realisation of their right to an adequate standard of living.
1.36 In relation to the cashless welfare scheme as a whole, it has not been clearly demonstrated that the scheme constitutes a permissible limit on the rights to social security and privacy or, noting that the scheme has a disproportionate impact on Indigenous Australians, that it is a reasonable and proportionate measure and therefore not discriminatory.[13] As such, extending the cashless welfare scheme by adding to the list of businesses where participants cannot use their restrictable welfare payments also appears to impermissibly limit the rights to social security, a private life and equality and non-discrimination.
1.37 The committee notes this determination specifies an additional two business types in relation to which transactions involving money in a welfare restricted bank account may be declined by a financial institution. As such, welfare recipients subject to the cashless welfare scheme would not be able to purchase goods at such businesses using their cashless debit card.
1.38 This determination, by adding businesses where a cashless welfare scheme participant cannot spend the restricted portion of their welfare payments, engages the same rights as those engaged by the cashless welfare scheme as a whole. The committee considers that the cashless welfare scheme engages and, in some instances, may promote the right to an adequate standard of living and the rights of the child, to the extent that quarantining welfare means that the money can only be spent on essential goods such as groceries and housing. However, the committee also considers the cashless welfare scheme engages and limits other human rights, including the rights to privacy and social security, as it intrudes into the freedom and autonomy of individuals to make their own decisions about the way in which they use their social security payments. Further, noting that a significant proportion of participants in the cashless welfare scheme identify as being Indigenous, the scheme disproportionately impacts on Indigenous Australians and therefore limits the right to equality and non-discrimination.
1.39 As set out in previous assessments of the cashless welfare scheme,[14] the committee considers it has not been clearly demonstrated that this scheme constitutes a permissible limit on the rights to social security and privacy or that it is a reasonable and proportionate measure and therefore not discriminatory. As such, in extending the cashless welfare scheme by adding to the list of businesses where participants cannot use their restrictable welfare payments, the committee considers this measure also appears to impermissibly limit the rights to social security, a private life and equality and non-discrimination.
1.40 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Social Security (Administration) Amendment (Trial of Cashless Welfare Arrangements) (Declinable Transactions and Welfare Restricted Bank Account) Determination 2021 [F2021L01473], Report 14 of 2021; [2021] AUPJCHR 139.
[3] Item 7 of this determination amends Schedule 2 of the Social Security (Administration) (Trial of Cashless Welfare Arrangements) (Declinable Transactions and Welfare Restricted Bank Account) Determination 2019 [F2019L00911]. The effect of the listing (made under section 124PQ(2) of the Social Security (Administration) Act 1999) is to ensure that Part IV of the Competition and Consumer Act 2010, relating to restrictive practices, does not apply to such transactions.
[4] See most recently Parliamentary Joint Committee on Human Rights, Report 1 of 2021 (3 February 2021) pp. 83–102.
[5] International Covenant on Economic, Social and Cultural Rights, article 11, and Convention on the Rights of the Child.
[6] International Covenant on Civil and Political Rights, article 17.
[7] International Covenant on Economic, Social and Cultural Rights, article 9.
[8] 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.
[9] 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, see Parliamentary Joint Committee on Human Rights, 2016 Review of Stronger Futures measures (16 March 2016), p. 40. 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, see ORIMA, Cashless Debit Card Trial Evaluation – Final Evaluation Report, August 2017, p. 37. In 2019, 43 per cent of participants in the Goldfields trial site were Indigenous, see 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.
[10] International Covenant on Civil and Political Rights, article 26. 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, see 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.
[11] Statement of compatibility, pp. 10–12.
[12] See Parliamentary Joint Committee on Human Rights, Report 1 of 2021 (3 February 2021) pp. 83–102.
[13] See Parliamentary Joint Committee on Human Rights, Report 1 of 2021 (3 February 2021) p. 83-102.
[14] See Parliamentary Joint Committee on Human Rights, Report 1 of 2021 (3 February 2021) p. 83-102.
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2021/139.html