Ministerial Responses [2022] AUPJCHR 30 (7 September 2022)

• Coalition Members' Dissenting Report1
• 1. The Limitation is Prescribed by Law
• 2. The Limitation Seeks to Achieve a Legitimate Objective
• 3. The Limitation is Rationally Connected to that Objective
• 4. The Limitation is Proportionate

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Coalition Members' Dissenting Report^[1]

1.1 The Human Rights Scrutiny Report 3 of 2022 states at 1.36:

For many years the committee has raised concerns regarding the human rights compatibility of the Cashless Debit Card program with multiple human rights. As such, in abolishing this specific program the committee considers this bill is a rights-enhancing measure.

1.2 We do not agree with this conclusion. We note the advice provided on the human rights impact of the Cashless Debit Card initiative. However, we are of the view that the benefits of the Cashless Debit Card are substantial and constitute a permissible limitation on human rights. This is demonstrated by considering the operation of the Cashless Debit Card Program against the four criteria for determining when a limitation on human rights is permissible.

1. The Limitation is Prescribed by Law

1.3 The operation of the program is clearly described in Part 3D of the Social Security (Administration) Act 1999.The relevant provisions are clear in their intention to encourage socially responsible behaviour and reduce the spending on alcohol and other illicit substances.

1.4 The operation of the Cashless Debit Card is certain and accessible in its operation. As prescribed in the Act, the Cashless Debit Card cannot be used for the purchase of alcohol, gambling services, open loop gift cards or cash withdrawal. In the areas of operation, between 50 to 80 per cent of a recipient’s welfare payment is placed on the visa debit card and the remaining funds are deposited into a regular bank account.

2. The Limitation Seeks to Achieve a Legitimate Objective

1.5 The Act notes the following objectives under Part 3D, Division 1, s 124PC:

(a) reduce the amount of certain restrictable payments available to be spent on alcoholic beverages, gambling and illegal drugs; and

(b) support program participants and voluntary participants with their budgeting strategies; and

(c) encourage socially responsible behaviour.

1.6 These issues are very significant and it is an entirely legitimate objective for a Government to seek to address them through legislation. Numerous community leaders had approached Government for support on these matters and worked with it to address their substantial concerns regarding anti-social behaviour in their communities.

3. The Limitation is Rationally Connected to that Objective

1.7 The provisions of the legislation are designed to achieve its objectives. As the program has been in operation for some time, its success in achieving the objectives can be demonstrated. The University of Adelaide published findings from an independent impact evaluation conducted in 2021, which indicated that the Cashless Debit Card has helped to mitigate long-lasting and substantial social issues. The findings included:

• 25 per cent of people reported they were drinking less since the Cashless Debit Card’s introduction;

• 21 per cent of Cashless Debit Card participants reported gambling less – and evidence found that cash previously used for gambling had been redirected to essentials such as food;

• 45 per cent of Cashless Debit Card participants reported the Cashless Debit Card had improved things for themselves and their family.

1.8 In addition, the study found that over half of the respondents were in favour of the Cashless Debit Card.

1.9 These findings demonstrate a clear connection between the Cashless Debit Card program and improved social behaviour throughout the trial. The provisions of the Act are rationally connected to its objectives and have been demonstrated to be effective in achieving those objectives.

4. The Limitation is Proportionate

1.10 The limitation of the Cashless Debit Card is proportionate to the significance of the issues that the program addresses. The anti-social and harmful behaviours which the program focuses on are substantial and warrant a limit on rights to improve the wellbeing of recipients and their families.

1.11 The Cashless Debit Card is a better mechanism for the delivery of income management, when compared to the Basics Card which has been utilised since 2007.

1.12 The Cashless Debit Card can be used at approximately 1 million retail outlets, demonstrating its ease of use.

1.13 The Department of Social Services published data in August 2022 indicating that 4,398 people are voluntarily using the Cashless Debit Card in the Northern Territory. The voluntary uptake shows that the Card is effective and practicable for use by welfare recipients.

1.14 The program includes important safeguards including exit and exemption provisions set out in the Act. Section 124PHB(1) of the Act states that a person may apply to exit the cashless welfare arrangement. Exit requests are considered on a case-by-case basis and take into account legislated criteria set out in section s 124PHB(3). Further, program participants can apply for a wellbeing exemption if the Cashless Debit Card Program is likely to adversely impact their mental, physical or emotional wellbeing.

1.15 For these reasons, we do not agree with the conclusions of the Report in relation to the abolition of the Cashless Debit Card.

The Hon David Coleman MP Senator Jacinta Nampijinpa-Price

Deputy Chair Senator for the Northern Territory

Member for Banks

Senator Matthew O'Sullivan

Senator for Western Australia

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[1] This section can be cited as Parliamentary Joint Committee on Human Rights, Dissenting Report, Report 3 of 2022; [2022] AUPJCHR 29.