Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019 [2019] AUSStaCSBSD 98 (18 September 2019)

• Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019
• Broad discretionary power 36
• 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

Broad discretionary power ^[36]

1.51 Item 36 of the bill seeks to amend section 124PJ of the Social Security (Administration) Act 1999 (Administration Act). The amendments would specify the portion of restrictable payments that are designated 'restricted' and 'unrestricted', for participants in the Northern Territory Trial of the Cashless Debit Card (CDC).^[37]

1.52 Item 39 of the bill seeks to amend subsection 124PJ of the Administration Act to insert new subsections 124PJ(2A) and (2B). These provisions would permit the minister to determine, by notifiable instrument, the percentage of income that is designated as 'restricted' for certain classes of trial participants.

1.53 The explanatory memorandum explains that the proposed powers would enable the minister to adjust the restricted portion of trial participants' benefits to reflect community requests, as well as requests from state and territory authorities and child protection officers. It also states that it is appropriate for variations to be made by determination, as the secretary's power under subsection 124PJ(3) (to vary restricted portions for individuals) will prevail over ministerial determinations made under proposed subsections 124PJ(2A) and (2B).^[38]

1.54 However, the committee remains concerned that proposed subsections 124PJ(2A) and (2B) would confer on the minister a broad power to determine, in relation to classes of trial participants, the portion of restrictable payments that are restricted, with little or no guidance on the face of the bill as to how this power is to be exercised. It is also unclear how the secretary's power under subsection 124PJ(3) would be effective to ensure that the minister's powers are exercised appropriately, noting that the minister's powers apply to classes of participants while the secretary's powers apply to individuals.

1.55 The committee is also concerned that ministerial determinations would be made by notifiable instrument. 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 2003. Parliamentary scrutiny of the determinations would therefore be limited.

1.56 The committee therefore requests 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.

Privacy^[39]

1.57 Item 43 of the bill seeks to insert sections 124POB, 124POC and 124POD into the Administration Act. Each of those provisions would allow the secretary, and specified state and territory government officials, to share information relating to current or prospective trial participants. The information must be relevant to the operation of Part 3D of the Administration Act (which relates to the trial of cashless welfare arrangements).^[40]

1.58 Item 46 of the bill seeks to amend paragraph 192(db) of the Administration Act, to extend the Secretary's power in section 192 of that Act to Part 3D. In effect, this would permit the secretary to require a person to give information or produce a document to the department where the secretary considers that the information or document may be relevant to the operation of Part 3D.

1.59 In relation to item 43 (proposed sections 124POB, 124POC and 124POD), the explanatory memorandum states that the provisions are 'essential to ensure that the CDC trial operates effectively and that people can, or are only required to, enter and exit the CDC trial as is appropriate to their circumstances'.^[41] The statement of compatibility includes a similar explanation, and asserts that any trespass on privacy is justified by reference to the objectives of the bill and the broader CDC scheme.^[42] In relation to item 46, the explanatory memorandum explains that the amendment to paragraph 192(db) 'is essential to allow the Secretary to determine whether a person should not participate in the CDC trial on the basis of their mental, physical or emotional wellbeing or where they can demonstrate reasonable or responsible management of their affairs'.^[43]

1.60 The committee acknowledges the importance of ensuring that the CDC trial is properly administered—including by ensuring that the trial only extends to appropriate persons. However, the committee is concerned that allowing the sharing of information about trial participants, and extending the secretary's power to require information and documents, may trespass unduly on individuals' privacy. In this respect, the committee notes that neither the explanatory memorandum nor the statement of compatibility provide detail as to the type of information that may be shared under proposed sections 124POB, 124POC and 124POD, or the type of information or documents that may be required under paragraph 192(db).

1.61 The committee also notes that the explanatory materials do not identify any relevant safeguards in relation to the collection of information under paragraph 192(db). In relation to proposed sections 124POB, 124POC and 124POD, the statement of compatibility states that there are 'effective community safeguards' in place. However, it does not provide any further detail (for example, expressly identifying the safeguards or explaining how they will operate in practice). The statement of compatibility states that 'there are still safeguards in place to protect individual privacy', and that some information collected, used and disclosed for the purposes of the CDC will be protected under the Privacy Act 1988.^[44] However, it is unclear whether, and if so, how, these safeguards would apply to the disclosure of information under proposed sections 124POB, 124POC and 124POD, or to the collection of information under paragraph 192(db).

1.62 As the explanatory materials do not adequately address this matter, 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.

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[36] Schedule 1, item 39, proposed subsections 134PJ(2A) and (2B). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[37] See proposed subsections 124PJ(1B), (1C) and (1D). A 'restrictable payment', in relation to a trial participant, refers to a variety of tax and social security benefits (set out in section 124PD of the Administration Act). The 'restricted portion' is the portion that may not be used to obtain alcoholic beverages, for gambling, or to obtain certain 'cash-like' products. The 'unrestricted portion' may be used at the recipient's discretion.

[38] Explanatory memorandum, pp. 13-14. See proposed subsection 124PJ(2C).

[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] Proposed paragraphs 124POB(1)(b), 124POC(1)(b) and 124POD(1)(b).

[41] Explanatory memorandum, p. 14.

[42] Statement of compatibility, p. 23. The objectives are set out on p. 18, and include: reducing spending on alcohol, gambling and illegal drugs; determining whether such a reduction decreases violence or harm; determining whether the CDC arrangements are more effective when community bodies are involved; and encouraging socially responsible behaviour.

[43] Explanatory memorandum, p. 15.

[44] Statement of compatibility, p. 22.