Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 121 (16 October 2019)

• Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019
• Broad discretionary power 34
• Privacy39

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Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition)
Bill 2019

Purpose	This bill seeks to amend Social Security (Administration) Act 1999 to set out the transition of income management participants in the Northern Territory and Cape York region in Queensland onto the Cashless Debit Card and extends the end for existing Cashless Debit Card trial areas from 30 June 2020 to 30 June 2021 with the exception of Cape York, which has an end date of 31 December 2021
Portfolio	Social Services
Introduced	House of Representatives on 11 September 2019
Bill status	Before the House of Representatives

Broad discretionary power ^[34]

2.98 In Scrutiny Digest 6 of 2019 the committee requested the minister's detailed advice as to:

• why it is considered necessary and appropriate to allow the minister to determine, by notifiable instrument, the percentage of income that is designated as 'restricted' for classes of trial participants;

• how the secretary's powers in subsection 124PJ(3) would be effective to ensure the minister's powers are exercised appropriately; and

• whether (at least high-level) rules or guidance in relation to the exercise of powers under proposed subsections 124PJ(2A) and (2B) could be included in the bill.^[35]

Minister's response^[36]

2.99 The minister advised:

Proportion of payments placed on to the Cashless Debit Card
The ability to vary rates for participants under new subsections 124PJ(2A), 124PJ(2B) and 124PJ(2C) ensures the effective operation of the Cashless Debit Card and allows for response to the particular needs of individual communities and support for individual participants in the Northern Territory.
The Bill proposes that participants in the Northern Territory have between 50 per cent and 70 per cent of their welfare payment placed on to the Cashless Debit Card. This is less than the proportion in the existing Cashless Debit Card trial areas, which have 80 per cent of their welfare payment placed onto the Cashless Debit Card and was designed in response to feedback from communities and other stakeholders.
New subsections 124PJ(2A) and 124PJ(2B) each allow the Minister to make a determination, by notifiable instrument, that varies the restricted portion of welfare payments accessible through the Cashless Debit Card by trial participants who reside in the Northern Territory. The subsections operate with respect to different classes of trial participants. The restricted portions are established in subsections 124PGE(1), 124PGE(2) and 124PGE(3) and reflect the existing portions that are applied under the Income Management regime.
Subsection 124PJ(2A) relates to trial participants under subsection 124PGE(1) who are currently covered by the Income Management Long-Term Welfare Recipient and Disengaged youth measures and whose restricted portion is set at 50 per cent under subsection 124PJ(1B). As outlined in the Explanatory Memorandum, new subsection 124PJ(2A) will be used to reflect community requests relating to discretionary expenditure.
Subsection 124PJ(2B) relates to people who are trial participants under subsection 124PGE(2) (who are covered by the current Child Protection measure) and subsection 124PGE(3) (who are covered by the current Supporting People at Risk measure). The restricted portions for these participants are set, respectively, by subsection 124PJ(1C) at 70 per cent and subsection 124PJ(1D) at 50 per cent. The power in subsection 124PJ(2B) will allow employees or officers of relevant authorities, including Northern Territory child protection officers and the Northern Territory Banned Drinkers Registrar, to request an increase or decrease in the proportion of payments accessible through the Cashless Debit Card.
With respect to the Northern Territory, the Minister can respond to changing community conditions as reflected in requests from communities or referring employees and officers. However, it is intended that the Minister would only respond to requests made by a community or an employee or officer of a relevant authority in appropriate circumstances. For example, a child protection officer may seek to increase or decrease the restricted rate based on the individual circumstances of a specific participant.
As explained in the Explanatory Memorandum, the Act provides that the portion of a participant's welfare payment that is restricted can be varied by the Secretary under subsection 124PJ(3). The Bill extends that power to new trial participants. This safeguard allows the Secretary to revise a trial participant's restricted portion as appropriate to the individual's circumstances notwithstanding the Minister's general determination under subsection 124PJ(2A) or 124PJ(2B).
It is important for the Minister to respond to changes in community needs, and for the Secretary to respond to in a targeted way to changes in an individual's circumstances as and when they arise. The Minister's power to determine restricted portions is better exercised by notifiable instrument to ensure that trial participants have responsiveness, transparency and certainty about their financial arrangements.

Committee comment

2.100 The committee thanks the minister for this response. The committee notes the minister's advice that the power in proposed subsections 124PJ(2A) and (2B) to determine the portion of income that is designed as 'restricted', for classes of participants in the Cashless Debit Card (CDC) trial, is better exercised by notifiable instrument. The committee notes the advice that the proposed approach is to ensure that trial participants have responsiveness, transparency and certainty about their financial arrangements.

2.101 The committee also notes the minister's advice that it is intended that the powers would be used in response to requests from communities and government officers (for example, child protection officers), and that the minister would only respond to such requests in appropriate circumstances.

2.102 The committee further notes the minister's advice that the secretary's power under subsection 124PJ(3) acts as a safeguard on the minister's powers under proposed subsections 124PJ(2A) and (2B), as the secretary would be able to vary the restricted portion of an individual trial participant's payments notwithstanding a general determination by the minister. In this regard, the committee notes the advice that it is important for the minister to respond to changes in community needs, and for the secretary to respond in a more targeted way to changes in an individual's circumstances.

2.103 While noting this advice, from a scrutiny perspective, the committee remains concerned that the bill would confer on the minister a broad power to determine the portion of a trial participant's payments that are subject to income management. In this respect, the committee notes that the minister would be able to exercise this power in relation to large classes of trial participants, and that the determination may specify that all payments are to be subject to income management.^[37]

2.104 In light of these matters, the committee considers that the determinations should at least be made by legislative instrument (rather than notifiable instrument), to ensure a higher level of parliamentary oversight through the tabling, disallowance and sunsetting requirements which apply to legislative instruments under the Legislation Act 2003. The committee also considers that the determinations could be made by legislative instrument without compromising responsiveness, transparency or certainty for trial participants.

2.105 The committee also remains concerned that—notwithstanding how it is intended the powers in proposed subsections 124PJ(2A) and (2B) would operate—there appears to be little or no guidance on the face of the bill as to how the powers are to be exercised. For example, it does not appear that the minister would be required to consider any particular matter before exercising the powers, or that the exercise of the powers would be required to follow a request from the community or from a relevant officer. Additionally, it remains unclear that the secretary's power to vary the restricted portion of an individual trial participant's payments would be an effective and appropriate safeguard in relation to the minister's power to vary the restricted portion of payments for classes of participants. This approach may, for example, place undue burden on a trial participant by requiring them to approach the secretary to seek a variation.

Trial area determinations

2.106 The committee takes this opportunity to note that item 14 of the bill would insert subsection 124PD(1A) into the Social Security (Administration) Act 1999 (Administration Act). The new provision would permit the minister to determine, by notifiable instrument, an area for the purposes of the definition of 'Cape York area'. Such a determination may have the effect of making a person a participant in the CDC trial.

2.107 Additionally, item 15 of the bill would amend subsection 124PD(2) of the Administration Act, to permit the minister to determine, by notifiable instrument, a part of the Northern Territory that is excluded from the definition of 'trial area'.

2.108 The explanatory statement explains that the power to make a notifiable instrument under proposed subsection 124PD(1A) is consistent with the existing power under subsection 124PD(2) of the Administration Act. It also notes that the existing power is to be modified to bring the Northern Territory into the trial. No further justification is provided for why the determinations would be made by notifiable instrument.

2.109 The committee is concerned that proposed subsection 124PD(1A), and existing subsection 124PD(2) (as modified by the bill), would confer on the minister a broad power to determine areas for the CDC trial by notifiable instrument, with only limited guidance on the face of the bill as to how the power is to be exercised. In this respect, the committee notes that notifiable instruments are not subject to the tabling, disallowance and sunsetting requirements that apply to legislative instruments under the Legislation Act. Parliamentary scrutiny of the determinations would therefore be limited.

2.110 The committee's longstanding view is that significant matters, such as the areas in which trials of cashless welfare arrangements are to be carried out, should be included in primary legislation or at least in delegated legislation which is subject to parliamentary disallowance. In this respect, the committee has previously raised concerns that permitting the minister to determine areas that are excluded from the definition of 'trial area' by notifiable instrument may undermine parliamentary scrutiny.^[38]

2.111 The committee considers that it may be appropriate for the bill to be amended to:

• provide that determinations under proposed subsections 124PJ(2A) and (2B) of the Social Security (Administration) Act 1999 (Administration Act), to vary the restricted portion of social security benefits for a class of trial participants, are to be made by disallowable legislative instrument; and

• provide that determinations under proposed subsection 124PD(1A) and existing section 124PD(2) of the Administration Act, to determine areas for the purpose of the definition of 'Cape York area' and 'trial area', are to be made by disallowable legislative instrument.

2.112 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of leaving significant elements of the Cashless Debit Card trial, including the specific areas in which the trial is to be conducted and the portion of participants' payments that are subject to income management, to notifiable instruments which are not subject to parliamentary disallowance.

2.14 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

Privacy^[39]

2.113 In Scrutiny Digest 6 of 2019 the committee requests the minister's detailed advice as to:

• the type of information that would be collected under paragraph 192(db) of the Social Security (Administration) Act 1999, as amended by the bill;

• the type of information that would be shared under proposed sections 124POB, 124POC and 124POC; and

• any relevant safeguards in place to protect individuals' privacy.^[40]

Minister's response

2.114 The minister advised:

Information sharing powers
Powers to obtain and share information about trial participants are necessary to facilitate the effective administration of the Cashless Debit Card trial and enable trial participants and their communities to be appropriately supported, including in times of crisis.
The Bill proposes new sections 124POB, 124POC and 124POD to authorise certain information disclosures to the Queensland Commission (currently the Family Responsibilities Commission (PRC)), a child protection officer of the Northern Territory or recognised State/Territory authority of the Northern Territory. These entities are responsible for referring participants to the Cashless Debit Card trial under section 124PGD (PRC) and 124PGE(2) (a child protection officer of the Northern Territory or recognised State/Territory authority of the Northern Territory).
The measures replicate existing provisions in Part 3B of the Act and are necessary to ensure that the personal circumstances of participants can be disclosed to ensure that participants are correctly placed onto the Cashless Debit Card trial and correctly authorised to cease to be trial participants. For example, information about a potential participant's address will be necessary to determine if the individual is a resident of a trial area.
In addition, the Bill amends section 192 of the Act to include the operation of Part 3D in this section to facilitate collection of information relevant to trial participation. This replicates arrangements under Part 38 of the Act for the Income Management regime and will support the operation of the Cashless Debit Card trial, including with respect to exit and wellbeing exemptions. Information that may be obtained pursuant to this provision includes trial participant residential addresses, payment types and mental and social wellbeing. This information will support the administration of the trial including the identification of trial participants and the management of wellbeing exemption and exit processes.
As you have noted, the Bill addresses disclosure of information to community bodies and the Queensland Commission and officers and employees of certain state or territory authorities (including child protection officers). As explained in the Explanatory Memorandum, sections 124POA, 124POB 124POC and 124POD replicate the current information sharing provisions in Part 38 of Act.
The information to be shared under the proposed 124POA, 124P0B 124POC and 124POD is protected information for the purposes of the Act and relates to participation in, and exit from, the Cashless Debit Card trial. The information that may be disclosed is limited in scope according to the body involved. For example, section 124POA specifies that the Secretary may only disclose to a relevant community body the fact that the person has ceased to be a trial participant or a voluntary participant, the day the person ceased to be a participant and the fact that participation ceased due to a determination under subsection 124PHA(1) or 124PHB(3). In other contexts, the information required will be material to whether a person is a trial participant and may relate, for example, to the person's place of residence.
The Department of Social Services (the department) is subject to a range of legal obligations relating to privacy, which are supplemented by policies and practices to ensure that individual's privacy is protected in relation to protected (personal) information obtained under the Act. Personal information collected by the department in connection with the Cashless Debit Card trial is held securely by the department and is not disclosed otherwise than for the administration of Part 3D of the Act or in connection with possible breaches of the law.
Importantly, the Act contains confidentiality provisions, including offence provisions, to ensure that trial participant information is stringently protected. Protected information can only be disclosed in specified circumstances. Division 3 of Part 5 of the Act creates a series of strict liability offences, which are punishable, upon conviction, by a term of imprisonment not exceeding two years.
In addition, the Privacy Act 1988 applies to the collection, use, storage and disclosure of personal information by the department, Services Australia and certain other entities.
The department uses a secure Archiving, Record Keeping and Compliance (Arc) system. Access controls are placed on each person's individual record and group of individual records to ensure only authorised people have access to the protected information. For auditing and compliance purposes, Arc metadata records who has viewed, updated, modified, destroyed or contributed to a document. Assessment and quality assurance processes are performed regularly to ensure that staff manage protected information within the secure Arc environment.
People with access to protected data will:

• be engaged by the Department of Social Services and required to comply with, among other things, the Australian Public Service Code of Conduct and Conflict of Interest Disclosure policy;

• hold a Australian Government Security Vetting Agency (AGSVA) Baseline Security Clearance as a minimum;

• be trained in handling protected information before given access to protected information; and

• be appropriately supervised.

Committee comment

2.115 The committee thanks the minister for this response. In relation to the types of information that may be collected under paragraph 192(db), the committee notes the minister's advice that this includes trial participants' residential addresses and payment types, as well as information relating to participants' mental and social wellbeing. The committee also notes the advice that this information will support the administration of the CDC trial, including the identification of trial participants and management of the wellbeing exemption and exit processes.

2.116 As to the information that may be shared under proposed sections 124POA, 124POB, 124POC and 124POD, the committee notes the advice that the information is 'protected information' for the purposes of the Administration Act, and relates to participation in, and exit from, the CDC trial. The committee also notes the advice that the information that may be disclosed is limited in scope according to the body involved, and the examples of the information that may be disclosed in particular circumstances.

2.117 In relation to the safeguards that apply to the collection, use and sharing of information, the committee also notes the minister's advice that the Department of Social Services (DSS) is subject to a range of legal obligations relating to privacy, which are supplemented by policies and practices to ensure privacy is protected in relation to protected information. In this respect, the committee notes the advice that personal information connected with the CDC trial is held securely by DSS, and is not disclosed other than for the administration of Part 3D of the Administration Act or in connection with possible breaches of the law.

2.118 The committee further notes the minister's advice that the Administration Act contains confidentially provisions, including offence provisions, to ensure that trial participant information is stringently protected.^[41] The committee also notes the advice that the Privacy Act 1998 applies to the collection, use, storage and disclosure of personal information by DSS, Services Australia and certain other entities.

2.119 Finally, the committee notes the minister's advice that DSS uses a secure Archiving, Record Keeping and Compliance (ARC) system, which ensures that only authorised persons have access to protected information. The committee also notes the advice that assessment, quality assurance and auditing processes are performed regularly to ensure staff manage the information within the secure ARC environment.

2.120 The committee requests that the information provided by the minister be included in the explanatory memorandum, noting the importance of that document as a point of access to understanding the law and, if necessary, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.121 In light of the information provided by the minister, the committee makes no further comment on this matter.

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[34] Schedule 1, item 39, proposed subsections 124PJ(2A) and (2B). The committee draws senators’ attention to these provisions pursuant to Senate Standing Orders 24(1)(a)(ii) and (iv).

[35] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2019, pp. 19-21.

[36] The minister responded to the committee's comments in a letter dated 3 October 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[37] Proposed subsections 124PJ(2A) and (2B) each allow the minister to vary the portion of payments that are restricted (that is, subject to income management) to a percentage that is less than or equal to 100 per cent in relation to 'persons who are trial participants'.

[38] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2018, p. 18, in relation to amendments to the Social Services Legislation Amendment (Cashless Debit Card Trial Expansion) Bill 2018.

[39] Schedule 1, item 43, proposed sections 124POB, 124POC and 124POD; Schedule 1, item 46. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[40] Senate Scrutiny of Bills Committee, Scrutiny Digest 6 of 2019, pp. 18-19.

[41] For example, section 202 of the Administration Act sets out the circumstances in which protected information may be collected, used and disclosed. Sections 203 and 204 create offences relating to unauthorised access to and unauthorised use (including disclosure) of protected information.