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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to remove trial parameters to establish the Cashless Debit
Card as an ongoing program and to transition Income Management
in the Northern
Territory and Cape York Region to the card. It also seeks to make further
modifications to the operation of the program
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Portfolio
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Social Services
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Introduced
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House of Representatives on 8 October 2020
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Bill status
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Before the House of Representatives
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2.83 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice as to:
• why it is considered necessary and appropriate to allow any officer or employee of a State or Territory, or of an agency or body of a State or Territory, to request that the secretary reconsider a determination made under existing subsection 124PHA(1) that a person is not a program participant; and
• whether the bill can be amended to limit the categories of State or Territory officers or employees who may make such a request.[36]
Minister's response[37]
2.84 The minister advised:
Item 32 of the Bill provides that an officer or employee of a State or Territory, or an agency or body of a State or Territory may request that a CDC wellbeing exemption is revoked if it is necessary for the person to be a program participant due to medical or safety reasons that relate to the person or their dependents. However, it does not provide administrative powers to all of this class of persons. Item 32 in fact provides that the power to revoke the CDC wellbeing exemption is provided to the Secretary of the Department of Social Services.
It is necessary to not limit the categories of State or Territory officers who may make such a request to ensure all qualified persons deemed appropriate to request a reconsideration are able to do so. Limiting the category of persons may cause unintended consequences that a report on the safety or wellbeing of a participant cannot be made. It recognises that where a state or territory officer or employee makes an assessment that not being on the CDC presents a risk to the person, or their dependant, it is important that the Secretary can consider this information in assessing whether being a program participant poses a serious risk to the person.
Committee comment
2.85 The committee thanks the minister for this response. The committee notes the minister's advice that item 32 does not provide administrative powers to the class of persons identified but rather provides that the power to revoke the exemption is provided to the Secretary of the Department of Social Services.
2.86 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.87 In light of the information provided, the committee makes no further comment on this matter.
2.88 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice as to
• why it is considered necessary and appropriate to leave the decision-making principles in relation to whether a person may exit the cashless debit card to delegated legislation; and
• whether the bill can be amended to provide for the decision-making principles (or high-level guidance in relation to the principles) on the face of the primary legislation, or, at a minimum, to provide that the minister 'must', rather than 'may', determine decision-making principles for the purposes of proposed subsection 124PHB(7A).[39]
Minister's response
2.89 The minister advised:
The Bill provides for decision-making principles relating to whether a person can demonstrate reasonable and responsible management of their affairs to exit the program, to be determined in delegated legislation. Any of these decision-making principles determined will be made under the confines of and be consistent with the primary legislation, that is, they will effectively be limited by the operation of subsection 124PHB(3), which sets out the factors that the Secretary should take into account. These decision-making principles would not introduce new criteria and are intended to provide participants with greater clarity by outlining the factors relating to the considerations that underpin the determination of exit applications. Flexibility in the ability to respond to changing functions and feedback provided will be compromised if these decision-making principles are incorporated in primary legislation. When moving these amendments, consistent with the approach taken for Income Management purposes (for example, refer to Social Security (Administration) (Exempt Welfare Payment Recipients – Principal Carers of a Child) (Indications of Financial Vulnerability) Principles 2020), it was not considered appropriate to specify these principles in the legislation itself. It would also not be appropriate to provide the Minister 'must' determine decision-making principles for these purposes, rather than 'may' determine decision-making principles for these purposes, since these powers may not be exercised.
2.90 The committee thanks the minister for this response. The committee notes the minister's advice that the decision-making principles will effectively be limited by the operation of subsection 124PHB(3), which sets out the factors that the secretary should take into account. The committee also notes the minister’s advice that the incorporation of the decision-making principles in primary legislation would compromise flexibility in the ability to respond to changing functions and feedback provided.
2.91 The committee further notes the minister’s advice that, since these powers may not be exercised, it would not be appropriate to provide that the minister must determine decision-making principles for these purposes. However, noting that the decision-making principles are intended to provide clarity to participants, the committee reiterates its scrutiny concern about the lack of an explicit requirement in the bill that the minister must determine decision-making principles. The committee considers that this approach may undermine the provision of clarity and certainty on the decision-making principles which underpin exit applications, should the minister decide not to determine the principles in delegated legislation.
2.92 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving decision-making principles in relation to whether a person may exit the cashless debit card to delegated legislation, particularly in circumstances where there is no requirement that the minister must make the relevant delegated legislation.
2.93 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
2.94 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice as to:
• why it is considered necessary and appropriate for determinations made under proposed subsection 124PD(1A) and existing subsection 124PD(2) to be notifiable instruments which are exempt from parliamentary scrutiny including disallowance; and
• whether the bill can be amended to:
• set out the definition of 'Cape York area' on the face of the primary legislation or, at a minimum, to provide that determinations made under proposed subsection 124PD(1A) are legislative instruments subject to parliamentary disallowance; and
• provide that determinations made under existing subsection 124PD(2) (relating to the exclusion of part of an area from the program) are legislative instruments subject to parliamentary disallowance.[41]
Minister's response
2.95 The minister advised:
The Bill allows the Minister to determine the definition of the 'Cape York area' by the making of a notifiable instrument. This approach seeks to reflect and recognise the jurisdiction of the Family Responsibilities Commission and to ensure consistency with geographical boundaries set out under Queensland legislation.
The Bill also allows the Minister to exclude any part of the Northern Territory from the program area by the making of a notifiable instrument, consistent with the pre-existing power under subsection 124PD(2). The exclusion of communities within CDC program areas would only occur following intensive consultation with the communities affected. Such an exclusion would not directly affect any individual's rights or alter the content of the law. Any change to an individual's circumstances will result from the factors determining whether any particular person is a program participant, of which residence in a program area is only one factor.
Committee comment
2.96 The committee thanks the minister for this response. The committee notes the minister's advice that the approach of determining the definition of the 'Cape York area' by notifiable instrument seeks to reflect and recognise the jurisdiction of the Family Responsibilities Commission and to ensure consistency with geographical boundaries set out under Queensland legislation. The committee also notes the minister's advice that the power to exclude any part of the Northern Territory from the program area by notifiable instrument is consistent with a pre-existing power in the Act.
2.97 While noting this explanation, it remains unclear to the committee why instruments determining the definition of 'Cape York area' and excluding part of an area from the program could not be legislative instruments to provide appropriate opportunities for parliamentary scrutiny.
2.98 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing that:
• determinations setting out the definition of 'Cape York area' made under proposed subsection 124PD(1A); and
• determinations made under existing subsection 124PD(2) relating to the exclusion of an area from the cashless debit card program
are to be notifiable instruments which are not subject to parliamentary disallowance.
2.99 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice as to:
• how the secretary's powers in subsection 124PJ(3) would be effective to ensure the minister's powers under proposed subsections 124PJ(2A) and (2B) (relating to the percentage of payments that are designated as 'restricted') are exercised appropriately;
• 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, including a requirement that the minister only exercise these powers after community consultation and a subsequent community request; and
• whether the bill could be amended to provide that determinations made under proposed subsections 124PJ(2A) and (2B), to vary the restricted portion of social security benefits for a class of program participants, are to be made by disallowable legislative instrument, rather than notifiable instrument.[43]
Minister's response
2.100 The minister advised:
The Bill grants the Minister the power to vary the portion of restrictable and non-restrictable payments under new subsections 124PJ(2A), 124PJ(2B) and 124PJ(2C). This ability to vary rates for participants ensures the effective operation of the CDC and allows for response to the particular needs of individual communities.
As outlined in the Explanatory Memorandum, the Minister will only consider exercising this power in response to a request from a community. When introducing these amendments, consistent with the ability to vary restricted portions for the purpose of Income Management measures, it was not considered appropriate to specify the requirements for exercising this power in the legislation itself. This decision was made to ensure the format of community requests and the nature of any necessary engagement with the community following a request, is flexible to respond to the specific circumstances of that community.
Given that this power will only be used in response to a community request, making the determination by notifiable instrument is appropriate to respect the autonomy of the community making the request.
Committee comment
2.101 The committee thanks the minister for this response. The committee notes the minister's advice that the minister will only consider utilising the power to vary the portion of restrictable and non-restrictable payments in response to a request from a community. The minister also advised that making the determination by notifiable instrument is appropriate to allow flexibility and to respect the autonomy of the community making the request.
2.102 While noting this advice, the committee reiterates its scrutiny concerns that, because the ministerial determinations would be made by notifiable instrument, they will not be subject to the tabling, disallowance and sunsetting requirements that apply to legislative instruments under the Legislation Act 2003. The committee's longstanding view is that significant matters, such as the restricted and unrestricted portions of social security payments, should be included in primary legislation or at least in delegated legislation which is subject to parliamentary disallowance. The committee further notes that there is no requirement that the minister only exercise the power to make a determination after community consultation and a community request.
2.103 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing ministerial determinations to vary the restricted portion of social security benefits to be made by notifiable instruments which are not subject to parliamentary disallowance.
2.104 In Scrutiny Digest 15 of 2020 the committee requested the minister's 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 124POD; and
• any relevant safeguards in place to protect individuals' privacy.[45]
Minister's response
2.105 The minister advised:
Powers to obtain and share information about participants are necessary to facilitate the effective administration of the CDC and enable 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 (FRC)), 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 CDC under section 124PGD (FRC) 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 CDC and correctly authorised to cease to be participants. For example, information about a potential participant's address will be necessary to determine if the individual is a resident of a program 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 program participation. This replicates arrangements under Part 3B of the Act for the Income Management regime and will support the operation of the CDC, including with respect to exit and wellbeing exemptions. Information that may be obtained pursuant to this provision includes participant residential addresses, payment types and mental and social wellbeing. This information will support the administration of the program including the identification of 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 3B of the Act.
The information to be shared under the proposed 124POA, 124POB 124POC and 124POD is protected information for the purposes of the Act and relates to participation in, and exit from, the CDC. 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 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 participant and may relate, for example, to the person's place of residence.
Commonwealth agencies administering social security law are 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 in connection with the CDC is held securely 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 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 relevant agencies and certain other entities.
People with access to protected data will:
• be 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
2.106 The committee thanks the minister for this response. The committee notes the minister's advice that the type of information that would be collected under paragraph 192(db) as amended by the bill includes participant residential addresses, payment types and mental and social wellbeing.
2.107 The committee also notes the minister’s advice that information shared under proposed sections 124POB, 124POC and 124POD is protected information for the purposes of the Act and relates to participation in, and exit from, the CDC. The minister further advises that the information that may be disclosed is limited in scope according to the body involved.
2.108 With respect to safeguards in place to protect individuals’ privacy, the committee notes the minister’s advice that personal information collected in connection with the CDC is held securely and is not disclosed otherwise than for the administration of Part 3D of the Act or in connection with possible breaches of the law. The committee also notes the minister’s advice with respect to confidentiality provisions and offences in the Social Security (Administration) Act 1999 relating to participant information, the application of the Privacy Act 1988, and practices such as requiring that people with access to protected information comply with relevant codes of conduct and policy, hold a baseline security clearance, receive appropriate training before given access to protected information, and be appropriately supervised.
2.109 While noting the minister’s advice, the committee reiterates its scrutiny concerns that allowing the sharing of information about program participants and extending the secretary's power to require information and documents may trespass unduly on an individuals’ privacy, particularly when the information being shared and collected includes highly personal information such as information about a person’s mental or social wellbeing.
2.110 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.111 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing the sharing of information about cashless debit card program participants and extending the secretary's power to require information and documents relevant to the operation of cashless welfare arrangements.
[35] Schedule 1, item 32, proposed subsection 124PHA(3). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[36] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 31-32.
[37] The minister responded to the committee's comments in a letter dated 26 November 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest
[38] Schedule 1, item 37, proposed subsection 124PHB(7B). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[39] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 32-33.
[40] Schedule 1, items 63 and 64, proposed subsections 124PD(1A) and (2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[41] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 34-35.
[42] Schedule 1, item 87, proposed subsections 124PJ(2A) and (2B). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[43] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 35-37.
[44] Schedule 1, item 93 proposed subsection 124POB, 124POC and 124POD, and Schedule 1, item 96, proposed paragraph 192(db). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[45] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 38-39.
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