Social Security (Administration) Amendment (Income Management Reform) Bill 2023 and Related Instruments "" Concluded Matters [2023] AUPJCHR 47 (9 May 2023)

2.1 This chapter considers responses to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Parliamentary Joint Committee on Human Rights

2.2 Correspondence relating to these matters is available on the committee's website.^[1]

Social Security (Administration) Amendment (Income Management Reform) Bill 2023 and related instruments^[2]

2.3 The committee requested a response from the minister in relation to the bill in Report 4 of 2023.^[4]

The enhanced income management regime

2.4 By way of background, the Social Security (Administration) Amendment (Repeal of Cashless Debit Card and Other Measures) Act 2022 introduced the enhanced income management regime under Part 3AA of the Social Security (Administration) Act 1999 (the Act). This Act also compulsorily transitioned former Cashless Debit Card (CDC) participants in the Northern Territory and Cape York region to this new enhanced income management regime (which took effect on 6 March 2023).^[5] The enhanced income management regime provides participants with access to a BasicsCard bank account, which is accompanied by a debit card (known as a SmartCard).^[6] A SmartCard will operate like a standard Visa debit card and participants will be able to purchase goods and services online and use mainstream banking functions including BPAY, and is said to be a 'superior banking product' to the existing BasicsCard.^[7]

2.5 This bill seeks to expand access to the enhanced income management regime by introducing eligibility criteria for both compulsory and voluntary participation in the regime. These criteria largely mirror the existing eligibility criteria under Part 3B of the Act (which sets up the original income management regime), meaning that persons who may become subject to the enhanced income management regime are the same as those who are, or would be, subject to income management under Part 3B of the Act.^[8] This bill also seeks to introduce additional eligibility criteria in relation to disengaged youth and long-term welfare payment recipients who reside within a state, a territory or an area other than the Northern Territory as specified by the minister by legislative instrument.^[9] In particular, a person would be subject to the enhanced income management regime if, among other things, they meet the criteria relating to disengaged youth or long-term welfare payment recipient, they usually reside within a specified place and they are not subject to the enhanced income management regime under any other eligibility criteria, such as because they are a vulnerable welfare payment recipient or a child protection officer requires the person to be income managed.^[10] In addition, the bill would direct all new entrants to income management to the enhanced income management regime and close entry to the old income management regime under Part 3B of the Act, as well as offer participants subject to income management under Part 3B the choice to voluntarily transition to the enhanced income management regime.^[11]

2.6 The bill would also specify the portions of welfare payments that are to be 'qualified' (the amount that may be spent on non-excluded goods and services) and 'unqualified' (the amount that may be spent at the person's discretion).^[12] The portions specified in this bill appear to mirror the 'deductible portions' set out under Part 3B of the Act.^[13] The qualified portions for welfare payments vary between 100 per cent and 50 percent depending on the type of welfare payment, unless another percentage is determined by the minister.^[14] Restrictions on the use of the qualified portion of a person's welfare payment are set out in a related instrument.^[15] In particular, the instrument declares the kinds of businesses in relation to which transactions involving a BasicsCard bank account (that is, a bank account subject to the enhanced income management regime) may be declined by a financial institution.^[16] The instrument also sets out the terms and conditions relating to the establishment, ongoing maintenance and closure of BasicsCard bank accounts.^[17] For example, cash cannot be withdrawn from a BasicsCard bank account and money cannot be used to purchase excluded goods and services or cash-like products (such as gift cards or vouchers). Limitations may also be placed on amounts that a person can spend and transfer out of their account.

2.7 Further, the bill would allow for the disclosure of information, including personal information, between relevant authorities for the purposes of the operation of the enhanced income management regime.^[18] For example, new section 123STA would allow a child protection officer to give the secretary information about a person who is subject to the enhanced income management regime, or about a person who the child protection officer is considering requiring to be income managed.^[19]

2.8 In addition, the Social Security (Administration) (Declared income management area — Ngaanyatjarra Lands) Determination 2023 continues the operation of voluntary income management arrangements under Part 3B of the Act and specifies the Ngaanyatjarra Lands as an area for the purposes of the eligibility criteria relating to vulnerable welfare payment recipients.^[20] This means that if a person's usual place of residence is the Ngaanyatjarra Lands and they meet the other eligibility criteria relating to vulnerable welfare payment recipients, then they will be subject to the income management regime under Part 3B of the Act. This bill would give such persons the choice to transition to the enhanced income management regime under Part 3AA of the Act.^[21]

Summary of initial assessment

Preliminary international human rights legal advice

Right to social security, private life, adequate standard of living and equality and non-discrimination and rights of the child

2.9 As the committee has previously reported, measures relating to mandatory income management engage numerous human rights.^[22] The committee has found that, to the extent that income management ensures a portion of an individual's welfare payment is available to cover essential goods and services, the income management regime could have the potential to promote rights, including the right to an adequate standard of living and the rights of the child.^[23] However, the committee has also found that mandatory income management in Australia engages and limits a number of other human rights, including the rights to a private life,^[24] social security^[25] and equality and non-discrimination.^[26] Insofar as this bill and related instruments extend measures relating to income management under Part 3B to the enhanced income management regime under Part 3AA, including by introducing eligibility criteria for mandatory participation in the enhanced income management regime and restricting the way a person subject to this regime can spend the 'qualified' portion of their welfare payment, these same human rights are engaged and limited.

2.10 In particular, by subjecting an individual to mandatory income management under the Part 3AA regime and restricting how they may spend a portion of their social security payment (including, in some cases, portioning 100 per cent of a person's welfare payment as 'qualified'), the measure limits the rights to social security and a private life insofar as it interferes with an individual's freedom and autonomy to organise and make decisions about their private and family life, including making their own decisions about the way in which they use their social security payments.^[27] 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,^[28] and enjoyment of the right requires that social support schemes must be accessible, providing universal coverage without discrimination.^[29] 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.

2.11 Further, authorising the disclosure of personal information between relevant authorities, the consequences of which may be to subject a person to compulsory income management, would also limit the right to informational privacy, which includes the right to respect for private and confidential information, particularly the storing, use and sharing of such information.^[30] It also includes the right to control the dissemination of information about one's private life.

2.12 The measure may also engage and limit the right to an adequate standard of living. This right is often engaged simultaneously with the right to social security and requires that Australia take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people in its jurisdiction.^[31] The committee has previously noted that were persons subject to mandatory income management to experience difficulties in accessing and meeting their basic needs, such as food, clothing and housing, the right to an adequate standard of living may be engaged and limited.^[32] The enhanced income management regime contains some safeguards that may mitigate the risk that individuals subject to income management under this regime may experience difficulties accessing and meeting their basic needs. In particular, participants will have access to a new SmartCard that can be used at over one million outlets across Australia and provides banking functions including 'tap and pay' payments, online shopping and BPAY.^[33] The bill would also allow the secretary to vary the percentage of qualified and unqualified portions of a person's welfare payment if a person is unable to access their BasicsCard bank account as a direct result of a technological fault or malfunction with the card or account; a natural disaster; or a national emergency.^[34]

2.13 However, it is not clear whether allowing any transaction with a specified kind of business to be declined by a financial institution could have an adverse impact on the ability of people in remote communities to access certain goods and services. The statement of compatibility notes that businesses that offer excluded goods and services can still be used by people subject to the enhanced income management regime if the business has systems to prevent the sale of excluded products or services to holders of an enhanced BasicsCard account.^[35] However, if, for example, the only grocery store in a remote town did not have adequate systems in place to prevent the sale of excluded products such that transactions made at the store were able to be declined, it is not clear how a participant subject to income management could purchase groceries, noting that online grocery shopping may not be available in remote communities. 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.^[36]

2.14 The measures also engage the right to equality and non-discrimination insofar as they would have a disproportionate impact on certain groups of people based on their protected attributes. 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.^[37] The eligibility criteria set out in the bill include a criterion relating to a person's usual place of residence and, in the case of disengaged youth, a criterion relating to age. In this way, the measures would treat participants differently based on the protected attributes of place of residence within a state and age.^[38] Further, due to the large number of Aboriginal and Torres Strait Islander persons participating in mandatory income management, the measures would have a disproportionate impact on this group, as acknowledged in the accompanying statements of compatibility.^[39] In particular, the measure relating to the Ngaanyatjarra Lands would disproportionately impact Aboriginal and Torres Strait Islander peoples, noting that the majority of the population residing in this area are Aboriginal people.^[40]

2.15 Further, noting that 'disengaged youth' (which includes children aged between 15 and 17 years) are a class of participants who are to be subject to the enhanced income management regime,^[41] the measure would engage the rights of the child. Children have special rights under human rights law taking into account their particular vulnerabilities.^[42] 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.^[43] For the reasons outlined above, the rights of a child to social security, privacy and equality and non-discrimination would be engaged and limited by subjecting disengaged youth to mandatory income management.^[44] Additionally, noting the eligibility criteria relating to disengaged youth do not provide for an individual assessment of those participants who would be subject to the enhanced income management regime, the measure would appear to raise issues regarding Australia's obligation to ensure that, in all actions concerning children, the best interests of the child are a primary consideration.^[45] This obligation requires legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions.^[46]

2.16 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.

Committee's initial view

2.17 The committee considered further information was required to assess the compatibility of the measures contained in the bill and related instruments with multiple human rights, and as such sought the minister's advice in relation to:

Minister's response^[50]

• Restricted Merchants - Merchants who primarily sell restricted items (bottle shops, TABs, casinos, cigar stores); the SmartCard is not accepted at these stores. This is done by using a Merchant Category Code or Merchant ID and is managed by the card issuer.

Concluding comments

International human rights legal advice

Legitimate objective and rational connection

2.20 The minister reiterated that the objective of the bill is to expand access to the enhanced income management regime and its associated improved technology. The minister stated that the bill does this by inserting new measures into Part 3AA of the Act that mirror the measures and eligibility criteria for income management in Part 3B of the Act. In this way, the bill does not change the policy settings underpinning the income management regime but rather replicates these settings in Part 3AA of the Act. As noted in the preliminary analysis, by replicating existing measures relating to income management in the enhanced income management regime, the bill and related legislative instruments would effectively remake the law relating to income management and possibly expand its scope. The general objective of the enhanced income management regime as a whole therefore needs to be scrutinised as well as the specific stated objective relating to the bill and instruments.

2.21 The preliminary analysis noted that while the general objective of the enhanced income management regime—to combat social harms caused by the use of harmful products—is capable of constituting a legitimate objective, it is not clear how expanding access to the enhanced income management regime and extending eligibility criteria for mandatory participation in this regime is consistent with the broader objective of making income management voluntary in the future. On this point, the minister stated that the government is working with communities on the future of income management and any decisions about its future will be based on genuine consultation with a wide range of stakeholders. The minister noted that the bill addresses previous concerns raised about the limitations of the BasicsCard by expanding access to modern banking technology. In this way, the minister stated that the bill will help to ensure the income management regime is more in tune with the needs of participants until consultation on the long-term future of the regime is complete.

2.22 The minister's response indicates that consultation will continue, and the income management regime will not change until consultation has occurred. It therefore appears that, depending on the outcome of consultation, there is a possibility that the regime may not be made voluntary in the future, as previously indicated by the minister.^[51] As such, it is not evident that expanding access to the enhanced income management regime, which in effect will extend mandatory income management into the foreseeable future, is, for the purposes of international human rights law, necessary and addresses a public or social concern that is pressing and substantial enough to warrant limiting human rights. While facilitating the transition to a regime that provides participants with access to superior technology and improved banking functions is, in itself, an important aim, it remains unclear why this transition must occur on a mandatory basis (or why legislation is required to improve this technology).

2.23 Under international human rights law, it must also be demonstrated that any limitation on a right has a rational connection to the objective sought to be achieved. The key question is whether the relevant measure is likely to be effective in achieving the objective being sought. As noted in the preliminary analysis, previous evaluations of mandatory income management, including the cashless debit card program, were inconclusive regarding its effectiveness, and whether it has caused or contributed to other harms.^[52] Based on earlier evaluations of the income management regime, the committee found in 2016 that the compulsory income management regime does not appear to be an effective approach to addressing issues of budgeting skills and ensuring that an adequate amount of income support payments is spent on priority needs. It noted that while the income management regime may have some benefit for persons who voluntarily participated in the regime, it has limited effectiveness for the vast majority of people who are compelled to participate.^[53]

2.24 As to whether there are more recent evaluations available, the minister advised that there are no evaluations of the enhanced income management regime but that work is underway to evaluate it, and otherwise referred to past evaluations of the income management regime under Part 3B of the Act, many of which have been considered by this committee.^[54] Without more recent evaluations and noting earlier evaluations of mandatory income management were inconclusive regarding its effectiveness, it is not possible to conclude that the enhanced income management regime, which will continue to subject persons to mandatory income management, would be effective to achieve the stated objectives.

Proportionality

2.25 The preliminary analysis noted that there appears to be little flexibility to consider the merits of an individual case in deciding whether to compulsorily subject a person to the enhanced income management regime and questions arise as to whether this approach is sufficiently individualised. The minister stated that all individuals who become subject to income management under both Part 3B and Part 3A do so on the basis of individual circumstances. If those circumstances change, they may exit income management. However, while some eligibility criteria may involve consideration of individual circumstances, such as with respect to persons subject to the enhanced income management regime on the basis of an individual referral by a state or territory child protection officer,^[55] most criteria do not provide for an individualised assessment. Rather, participation is broadly based on geographical location and the type of social security payment received. For example, a young person aged between 15 and 25 years of age who resides in a specified place, receives a specified welfare payment (such as youth allowance or jobseeker)^[56] for at least 13 weeks during the 26-week period ending immediately before the test time, and is not exempt, will be subject to the enhanced income management regime.^[57] These criteria relating to disengaged youth do not allow for consideration of individual circumstances, such as whether an individual has a demonstrated need for assistance in managing their income or a history of using harmful products such that intervention is appropriate. Concerns therefore remain that the eligibility criteria applicable to the enhanced income management regime are insufficiently individualised.

2.26 The preliminary analysis noted that the general exemptions that apply to the income management regime, such as the ability to exempt certain welfare payment recipients,^[58] may operate as a safeguard. The value of this safeguard will depend on how it operates in practice, including the nature and scope of any future legislative instruments that specify a class of persons who are to be exempt from income management.^[59] As to the existence of other safeguards, the minister advised that individuals will be subject to income management based on individual circumstances. However, as noted above, many individuals are subject to compulsory income management without consideration of their individual circumstances and as such, this does not assist with proportionality.

2.27 Other safeguards identified by the minister were the secretary's ability to vary the percentage of the qualified portion of a person's welfare payment in certain circumstances, such as where a person is unable to access their BasicsCard bank account because of a technological fault or malfunction,^[60] as well as the fact that the enhanced income management regime offers access to a greater number of businesses and outlets. While these safeguards may assist to ensure that any limitation on the right to an adequate standard of living is proportionate, questions were raised in the preliminary analysis as to whether allowing any transaction with a specified kind of business to be declined by a financial institution could have an adverse impact on the ability of people in remote communities to access certain goods and services and thus realise their right to an adequate standard of living. The minister advised that the bill does not impose any further risk to accessing goods than those already prevalent in remote communities. The minister stated that the SmartCard is supported by Product Level Blocking, which automatically blocks the purchase of excluded goods and services when the SmartCard is used to pay in a mixed merchant setting, that is, a merchant that sells both restricted and unrestricted items. Where the business does not have the technology to support Product Level Blocking, the minister stated that Services Australia will work with the business to provide a Mixed Merchant Agreement, that is, an agreement that the business will uphold the intent of the government's policy by manually preventing the sale of excluded goods and services. The minister stated that this ensures enhanced income management participants can continue to access essential goods, regardless of the technology available to businesses. The availability of mixed merchant agreements may mitigate the risk of participants in remote areas being unable to purchase basic goods because of technological limitations of the relevant business.

2.28 Another potential safeguard is community consultation. Further information was sought from the minister to assess the adequacy of the consultation undertaken to date. The minister advised that the bill was developed based on consultation with First Nations peoples, community members and their leaders, service providers and other stakeholders. The minister stated that these stakeholders called for a measured approach to reforming income management. The minister advised that consultation will continue and that a decision regarding the future of income management will not be made until extensive and meaningful consultation has occurred. It is evident that consultation regarding the bill generally has occurred, and there is an intention for further consultation to be undertaken, which is an important element of the requirement for free, prior and informed consent, which is a part of the right to self-determination.^[61] However, it remains unclear whether, and to what extent, affected communities and individuals were consulted about those aspects of the bill which relate to mandatory participation in the enhanced income management regime, noting that it is these aspects of the bill which most significantly limit the rights of participants.

2.29 A further consideration is the extent of any interference with human rights, noting that the greater the interference the less likely the measure is to be proportionate. The preliminary analysis noted that compulsory income management, including under the enhanced income management regime, represents a significant interference with a person's autonomy and private and family life. The regime imposes stringent conditions on the provision of income support payments, including what goods or services a person may purchase and where, as well as to whom a person may transfer money. In relation to participants who are subject to the regime due to receiving a written notice by a child protection officer or because they have failed to ensure that their child is enrolled at school or there is an unsatisfactory school attendance situation, 100 per cent of their welfare payment would be qualified (unless a lower percentage is determined by the minister by legislative instrument), meaning there may be no amount available to be used at the person's discretion.^[62]

2.30 Regarding the sharing of personal information for the purposes of the operation of the enhanced income management regime, the resulting interference with privacy is significant because the consequences of this information sharing may be compulsory income management. While these information sharing provisions would be subject to the secrecy provisions in the Act, it is not clear that this safeguard would ameliorate these adverse effects.^[63]

2.31 The length of time that compulsory income management may be in force is also relevant in considering the extent of any interference with rights. The minister advised that both income management and enhanced income management will continue to operate in the existing 12 locations across Australia and in the Northern Territory in their current form until the government has undertaken further consultation on the future of income management. The minister stated that it is not appropriate for the enhanced income management regime to sunset as this could have a range of unintended consequences if appropriate transitional legislation is not passed prior to the sunset date.

2.32 The minister stated that to demonstrate the government's commitment to ongoing and meaningful consultation on the future of income management, the legislative instruments that will operationalise enhanced income management will be self-repealing after a set period of time, although the minister does not indicate what this set period of time will be. The legislative instrument that operationalises key aspects of the enhanced income management regime, including the kind of bank account to be maintained by a person subject to the regime, the terms and conditions of that bank account and the kinds of businesses in relation to which transactions may be declined, is currently due to sunset in ten years, on 1 April 2033 and there is no earlier self-repealing date specified.^[64] If this sunset date is indicative of the potential length of time in which the enhanced income management regime may operate, the resulting interference with rights is likely to be significant.

2.33 The potential interference with rights may also be greater if the enhanced income management regime is expanded to other geographical areas. The minister stated that while proposed section 123SDA (the eligibility criteria relating to disengaged youth and long-term welfare payment recipients) would allow the minister to specify areas other than the Northern Territory to which the enhanced income management regime may apply, the government does not intend to make a legislative instrument extending these measures beyond the Northern Territory. In terms of the impact on rights, not extending the measures beyond the Northern Territory is welcome. However, it is noted that a statement of intention not to exercise this discretionary power offers little safeguard value, as the power to expand the regime remains in the legislation itself, and were there to be a change of minister or government, a different approach may be taken.

2.34 Finally, it is necessary to consider whether any less rights restrictive alternatives could achieve the same stated objective. The preliminary analysis noted that it is not clear why the bill extends compulsory participation in the enhanced income management regime rather than introducing voluntary participation, or at a minimum, only subjecting individuals to the regime on the basis of individual circumstances. On this point, the minister stated that all individuals are subjected to income management based on individual circumstances and that an individual's usual place of residence is relevant but only one criterion that must be satisfied. As noted above, however, concerns remain that the eligibility criteria are not sufficiently individualised. It therefore appears that there may be less rights restrictive ways to achieve the stated objective, such as voluntary participation in the regime, incorporating individualised assessments in the eligibility criteria and making mandatory participation in the regime a time-limited measure.

2.35 In conclusion, while the general objective underpinning the enhanced income management regime—to combat social harms caused by the use of harmful products—is capable of constituting a legitimate objective, it is not evident that the specific objective of expanding access to this regime, which in effect extends mandatory income management into the foreseeable future, is necessary and addresses a public or social concern that is pressing and substantial enough to warrant limiting human rights. It is also not clear that the measure would be effective to achieve the general objective of combatting social harms, noting that earlier evaluations of mandatory income management were inconclusive regarding its effectiveness. As to proportionality, while there are some safeguards accompanying the legislation, it is not clear these are sufficient. There is also insufficient flexibility to consider individual circumstances, the interference with human rights is potentially significant and there appear to be less rights restrictive ways of achieving the stated objective. As such, the legislation risks impermissibly limiting the rights to social security, privacy, equality and non-discrimination and the rights of the child. With respect to the right to an adequate standard of living, the availability of mixed merchant agreements appears to mitigate the risk that this right would be disproportionately limited.

Committee view

2.36 The committee thanks the minister for this response. The committee notes that the bill and related instruments seek to facilitate the transition to the enhanced income management regime, which provides participants with access to a BasicsCard bank account and accompanying debit card (known as a SmartCard) that offers superior technology and improved banking functions. The committee considers this aspect of the legislation to be a positive measure, noting that the new SmartCard will improve participants' access to businesses, including access to over one million outlets across Australia, and may reduce the stigma associated with the existing BasicsCard (that is, the debit card used under the Part 3B income management regime).

2.37 However, the committee also notes that in facilitating this transition, the bill and related instruments extend all measures relating to income management to the enhanced income management regime. Thus, in effect, the legislation remakes the law relating to income management. The committee therefore needs to scrutinise the enhanced income management regime more broadly (and not just the specific measures relating to improving the technology of the BasicsCard bank account and accompanying debit card).

2.38 For many years the committee has raised concerns regarding the compatibility of compulsory income management with multiple human rights.^[65] Insofar as the enhanced income management regime would replicate existing measures relating to income management under Part 3B, these same human rights are engaged and limited by the bill and related instruments. In particular, by subjecting an individual to mandatory income management and restricting how they may spend a portion of their social security payment, the measure limits the rights to social security and a private life, and possibly the right to an adequate standard of living. By authorising the sharing of personal information between relevant authorities for the purposes of the operation of the enhanced income management regime, the right to informational privacy is also engaged and limited. Due to the disproportionate impact on certain groups with protected attributes, including Aboriginal and Torres Strait Islander peoples and children, the measures engage and limit the right to equality and non-discrimination and the rights of the child.

2.39 The committee notes that while the general objective of the enhanced income management regime is important, that is, to combat social harms caused by the use of harmful products, it is not clear that expanding access to this regime, which in effect extends mandatory income management into the foreseeable future, is, for the purposes of international human rights law, a necessary measure that addresses a pressing and substantial concern. The committee considers that, in the absence of adequate safeguards and sufficient flexibility to consider individual circumstances, as well as the potentially significant interference with human rights that may result from compulsory participation in the enhanced income management regime, the legislation risks impermissibly limiting the rights to social security, privacy, equality and non-discrimination and the rights of the child. With respect to the right to an adequate standard of living, the committee considers that the availability of mixed merchant agreements would appear to mitigate the risk that this right would be disproportionately limited.

2.40 The committee draws these human rights concerns to the attention of the minister and the Parliament.

[3] The related instruments are Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189] and Social Security (Administration) (Declared income management area — Ngaanyatjarra Lands) Determination 2023 [F2023L00190].

[4] Parliamentary Joint Committee on Human Rights, Report 4 of 2023 (29 March 2023), pp. 9–25.

[5] See Parliamentary Joint Committee on Human Rights, Social Security (Administration) Amendment (Repeal of Cashless Debit Card and Other Measures) Bill 2022, Report 3 of 2022 (7 September 2022) pp. 15–26 and Report 5 of 2022 (20 October 2022) pp. 39–55.

[6] Section 123SU of the Social Security (Administration) Act 1999 provides that the Secretary may, by legislative instrument, determine a kind of bank account to be maintained by a person who is subject to the enhanced income management regime. Section 7 of the Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189] provides that a BasicsCard bank account established with Indue or Traditional Credit Union is the kind of bank account to be maintained by a person subject to the enhanced income management regime. The terms and conditions relating to the use of the BasicsCard bank account are set out in Schedule 4 of the Determination.

[7] Explanatory statement, pp. 1, 4–5.

[8] Schedule 1, item 17 remakes the eligibility criteria in relation to child protection, referrals by recognised state and territory authorities and vulnerable welfare payment recipients. Item 1 sets out all persons who may become subject to the enhanced income management regime.

[9] Schedule 1, item 32, new section 123SDA. Section 123SD of the Social Security (Administration) Act 1999 sets out eligibility criteria relating to persons who are disengaged youth and long-term welfare payment recipients whose usual place of residence is within the Northern Territory.

[10] Schedule 1, item 32, new section 123SDA. This eligibility criteria mirrors sections 123UCB and 123UCC, which sets out the eligibility criteria for disengaged youth and long-term welfare payment recipients in relation to the income management regime under Part 3B of the Social Security (Administration) Act 1999.

[11] Schedule 1 expands access to the enhanced income management regime and schedule 2 closes the income management regime under Part 3B to new entrants.

[12] Scheduled 1, items 49–51.

[13] Division 5 of Part 3B of the Social Security (Administration) Act 1999 specifies the 'deductible portion' of welfare payments, that is, the amount that must be deducted from the welfare payment to be credited to the person's income management account.

[14] Each welfare payment attracts a different portioning and whether a welfare payment is paid by instalments or as a lump sum will change the percentage that is qualified and unqualified.

[15] Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189].

[16] Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189], schedules 1–3. Schedule 1 declares the kinds of businesses by description, schedule 2 declares the kinds of businesses by merchant category and schedule 3 declares businesses by Australian and New Zealand Standard Industrial Classification codes.

[17] Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189], schedule 4.

[18] Schedule 1, item 68.

[19] Schedule 1, item 68, new section 123STA.

[20] Social Security (Administration) (Declared income management area — Ngaanyatjarra Lands) Determination 2023 [F2023L00190]

[21] Schedule 1, item 17, new section 123SCL.

[22] See Parliamentary Joint Committee on Human Rights, Social Security (Administration) Amendment (Repeal of Cashless Debit Card and Other Measures) Bill 2022, Report 3 of 2022 (7 September 2022) pp. 15–26 and Report 5 of 2022 (20 October 2022) pp. 39–55; 2016 Review of Strong Futures measures (16 March 2016) pp. 37–62; Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation (June 2013) pp. 45–62. The committee has made similar comments regarding measures relating to the Cashless Debit Card program. See, e.g. Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) pp. 21-36; Report 7 of 2016 (11 October 2016) pp. 58-61; Report 9 of 2017 (5 September 2017) pp. 34-40; Report 11 of 2017 (17 October 2017) pp. 126-137; Report 8 of 2018 (21 August 2018) pp. 37-52; Report 2 of 2019 (2 April 2019) pp. 146–152; Report 1 of 2020 (5 February 2020) pp. 132–142; Report 14 of 2020 (26 November 2020) pp. 38–54; Report 1 of 2021 (3 February 2021) pp. 83–102; Report 14 of 2021 (24 November 2021) pp. 14–18.

[23] International Covenant on Economic, Social and Cultural Rights, article 11, and Convention on the Rights of the Child. The statement of compatibility states that the bill promotes the right to an adequate standard of living by restricting individuals from spending a significant portion of their welfare payment to purchase excluded goods and services, such as alcohol, gambling products, pornography and tobacco, which ensures individuals will have sufficient funds available to meet their basic needs such as rent, food and household bills: p. 4. See also Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189], statement of compatibility, p. 3.

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

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

[26] 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 by the International Convention on the Elimination of All Forms of Racial Discrimination, articles 2 and 5.

[27] The bill's statement of compatibility acknowledges the rights to social security and privacy are engaged: pp. 4–5. See also Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189], statement of compatibility, pp. 3–4.

[28] The Parliamentary Joint Committee on Human Rights has previously stated that the income management regime fails to promote social inclusion, but rather stigmatises individuals, and as such, limits the enjoyment of the right to social security, an adequate standard of living and privacy: 2016 Review of Strong Futures measures (16 March 2016) p. 47.

[29] 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.

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

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

[32] See Social Security (Administration) Amendment (Repeal of Cashless Debit Card and Other Measures) Bill 2022, Report 3 of 2022 (7 September 2022) pp. 15–26 and Report 5 of 2022 (20 October 2022) pp. 39–5.

[33] Statement of compatibility, p. 3.

[34] Schedule 1, item 51, new subsections 123SLA(7)–(8), 123SLD(7)–(8), 123SLG(7)–(8), 123SLJ(7)–(8). See also Social Security (Administration) Act 1999, subsections 123SJ(4)–(5), 123SM(3)–(4), 123SP(3)–(4).

[35] Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189], statement of compatibility, p.3.

[36] This Parliamentary Joint Committee on Human Rights raised this issue in its consideration of the Social Security (Administration) Amendment (Trial of Cashless Welfare Arrangements) (Declinable Transactions and Welfare Restricted Bank Account) Determination 2021 [F2021L01473], Report 14 of 2021 (24 November 2021).

[37] 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'. See Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 3rd edition, Oxford University Press, Oxford, 2013, [23.39].

[38] Age and place of residence have been recognised as constituting an 'other status' for the purposes of the right to equality and non-discrimination. Regarding age, see Schmitz-De-Jong v Netherlands, UN Human Rights Committee Communication No. 855/1999 (2001). Regarding place of residence, see Lindgren et al v Sweden, UN Human Rights Committee Communications Nos. 298/1988 and 299/1988 (1991).

[39] Statement of compatibility, p. 2. See also Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189], statement of compatibility, p. 2.

[40] For the purposes of the Social Security (Administration) (Declared income management area — Ngaanyatjarra Lands) Determination 2023 [F2023L00190], the Ngaanyatjarra Lands includes the shire of Ngaanyatjarraku in Western Australia and the remote community known as Kiwirrkurra Community located within the shire of East Pilbara in Western Australia: Explanatory statement, p. 1. According to the 2021 Census, there are 171 Aboriginal and/or Torres Strait Islander people living in Kiwirrkurra and 1,147 Aboriginal and/or Torres Strait Islander people living in the Ngaanyatjarraku Local Government Area (which represents 84.5 per cent of the total population). The Ngaanyatjarra Lands School also states that approximately 2,000 Aboriginal people live in eleven communities that comprise the Ngaanyatjarra Lands. Notwithstanding this, the accompanying statement of compatibility does not acknowledge that the right to equality and non-discrimination is limited, stating that the determination does not discriminate on the basis of race because anyone who resides in the Ngaanyatjarra Lands (regardless of race) will be eligible for the continuation of income management: p. 3.

[41] Schedule 1, item 32, new subsection 123SDA(1).

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

[43] 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.

[44] Convention on the Rights of the Child, articles 2, 16 and 26.

[45] Convention on the Rights of the Child, article 3(1).

[46] UN Committee on the Rights of the Child, General Comment 14 on the right of the child to have his or her best interests taken as a primary consideration (2013). See also IAM v Denmark, UN Committee on the Rights of the Child Communication No.3/2016 (2018) [11.8].

[47] The minister previously advised the committee that the government intends to ultimately transition to a voluntary regime. See Parliamentary Joint Committee on Human Rights, Social Security (Administration) Amendment (Repeal of Cashless Debit Card and Other Measures) Bill 2022, Report 5 of 2022 (20 October 2022) pp. 39–55.

[48] Schedule 1, item 32.

[49] Parliamentary Joint Committee on Human Rights, Report 4 of 2023 (29 March 2023), pp. 9–25.

[50] The minister's response to the committee's inquiries was received on 18 April 2023. This is an extract of the response. The response is available in full on the committee's website.

[51] It is noted that the minister made previous statements to this committee regarding the government's intention to make income management voluntary in the future. See Parliamentary Joint Committee on Human Rights, Social Security (Administration) Amendment (Repeal of Cashless Debit Card and Other Measures) Bill 2022, Report 5 of 2022 (20 October 2022) pp. 48.

[52] A summary of the evaluations of the Cashless Debit Card program is set out in Parliamentary Joint Committee on Human Rights, Report 14 of 2020 (26 November 2020) pp. 38–54; Report 1 of 2021 (3 February 2021) pp. 83–102. 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.

[53] Parliamentary Joint Committee on Human Rights, 2016 Review of Strong Futures measures (16 March 2016), p. 52.

[54] The minister referred to the income management and Cashless Debit Card evaluations available on the Department of Social Services website. Many of these evaluations were considered by the Parliamentary Joint Committee on Human Rights in its Report 14 of 2020 (26 November 2020) pp. 38–54; Report 1 of 2021 (3 February 2021) pp. 83–102.

[55] Schedule 1, item 17, proposed subsection 123SCA(1).

[56] Category C welfare payment, defined as: youth allowance; jobseeker payment; special benefit; pension PP (single); or benefit PP (partnered). See Social Security A(Administration) Act 1999, section 123SB definition of 'Category C'.

[57] Schedule 1, item 32, new subsection 123SDA(1).

[58] Schedule 1, item 32, new section 123SDB.

[59] It is noted that the Parliamentary Joint Committee on Human Rights has previously raised concerns about the adequacy and effectiveness of exemptions in the context of the Cashless Debit Card program and the income management regime. See Parliamentary Joint Committee on Human Rights, Report 1 of 2021 (3 February 2021) pp. 98–102; 2016 Review of Strong Futures measures (16 March 2016) pp. 54–56.

[60] Schedule 1, item 51, new subsections 123SLA(7)–(8), 123SLD(7)–(8), 123SLG(7)–(8), 123SLJ(7)–(8). See also Social Security (Administration) Act 1999, subsections 123SJ(4)–(5), 123SM(3)–(4), 123SP(3)–(4).

[61] See United Nations Declaration on the Rights of Indigenous Peoples, article 19. While this Declaration is not one of the international texts listed as those which this committee is to consider when examining legislation for compatibility with human rights (see Human Rights (Parliamentary Scrutiny) Act 2011), it provides context as to how human rights standards under international law apply to the particular situation of Indigenous peoples. As such, 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.

[62] Schedule 1, item 51, new sections 123SLA and 123SLD.

[63] Statement of compatibility, p. 5.

[64] Social Security (Administration) (Declinable Transactions and BasicsCard Bank Accounts) Determination 2023 [F2023L00189].

[65] See, e.g. Parliamentary Joint Committee on Human Rights, Social Security (Administration) Amendment (Repeal of Cashless Debit Card and Other Measures) Bill 2022, Report 3 of 2022 (7 September 2022) pp. 15–26 and Report 5 of 2022 (20 October 2022) pp. 39–55; 2016 Review of Strong Futures measures (16 March 2016) pp. 37–62; Eleventh Report of 2013: Stronger Futures in the Northern Territory Act 2012 and related legislation (June 2013) pp. 45–62. The committee has made similar comments regarding measures relating to the Cashless Debit Card program. See, e.g. Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament (24 November 2015) pp. 21-36; Report 7 of 2016 (11 October 2016) pp. 58-61; Report 9 of 2017 (5 September 2017) pp. 34-40; Report 11 of 2017 (17 October 2017) pp. 126-137; Report 8 of 2018 (21 August 2018) pp. 37-52; Report 2 of 2019 (2 April 2019) pp. 146–152; Report 1 of 2020 (5 February 2020) pp. 132–142; Report 14 of 2020 (26 November 2020) pp. 38–54; Report 1 of 2021 (3 February 2021) pp. 83–102; Report 14 of 2021 (24 November 2021) pp. 14–18.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2023/47.html

Purpose	This bill seeks to make amendments to the enhanced income management regime under Part 3AA of the Social Security (Administration) Act 1999, including by directing all new participants to the Part 3AA regime and closing entry to the income management regime under Part 3B; and offering participants subject to the income management regime under Part 3B the choice to transition to the Part 3AA regime. The related instruments firstly set out the terms and conditions relating to the establishment, ongoing maintenance and closure of BasicsCard bank accounts and specifies the kinds of businesses in relation to which transactions involving BasicsCard bank accounts may be declined, and secondly specify the Ngaanyatjarra Lands as an area for the purposes of the eligibility criteria relating to vulnerable welfare payment recipients and as a declared voluntary income management area.^[3]
Portfolio	Social services
Introduced	House of Representatives, 9 March 2023
Rights	Social security; private life; adequate standard of living; equality and non-discrimination; rights of the child

Australian Parliamentary Joint Committee on Human Rights