Bills Digest No. 26, 2017–18
PDF version [893KB]
Don Arthur and Matthew Thomas
Social Policy Section
Paula Pyburne
Law and Bills Digest Section
5
September 2017
Contents
The Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Structure of this Bills Digest
Committee consideration
Senate Community Affairs Legislation
Committee
Senate Standing Committee for the
Scrutiny of Bills
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Schedule 12—Establishment of a drug
testing trial
Commencement
Financial implications
Background
Principled versus pragmatic
considerations
Earlier Australian proposals
United Kingdom experience
Welfare reform proposals
Welfare Reform Act 2009
Plans for a pilot scheme
Income management proposal
The Black Review
Policy position of non-government
parties/independents
Australian Labor Party
Australian Greens
Nick Xenophon Team
Jacqui Lambie
Other independents
How the drug testing trial will
operate
Selection of the three trial sites
Selecting recipients for drug testing
Recipients who fail the first test
Recipients who fail second or
subsequent tests
Recipients to repay the cost of
positive tests
Sanctions
Refusal to undertake drug test
Key issues
Lack of consultation during policy
development
Questions about the Government’s
objectives
Evaluation
Privacy and stigmatisation
The role of contractors
Schedule 13—Removal of exemptions for
drug or alcohol dependence
Commencement
Financial implications
Background
Mutual obligation
requirements
Key provisions
Schedule 14—Changes to reasonable
excuses
Commencement
Financial implications
Background
Key provisions
Key issues
Whether the treatment
is ‘voluntary’
Availability of treatment
Whether substance use
and abuse is a barrier to employment
Figure 1: drug use by employment
status, people aged 14 or older, 2013 (per cent)
Stakeholder comments
Think tanks—The Centre for
Independent Studies
Drug and alcohol groups
National Drug and Alcohol Research
Centre
Queensland Mental Health and Drug
Advisory Council
Australian National Council on Drugs
(ANCD)
Victorian Alcohol and Drug
Association (VAADA)
Western Australian Network of Alcohol
and other Drug Agencies (WANADA)
Penington Institute
Alex Wodak and GetUp
Welfare sector
Brotherhood of St Laurence
Australian Council of Social Service
(ACOSS)
National Social Security Rights
Network
Anglicare Australia
Catholic Social Services Australia
(CSSA)
UnitingCare Australia
Melbourne City Mission
Good Shepherd Australia New Zealand
Samaritans
Professional bodies
Australian Medical Association
Royal Australasian College of
Physicians
Victorian Government
Date introduced: 22
June 2017
House: House of
Representatives
Portfolio: Social
Services
Commencement: Various
dates as set out in the body of this Bills Digest
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2017.
The Bills Digest at a glance
This is a short-form Bills Digest relating only to
Schedules 12–14 of the Social Services Legislation Amendment (Welfare Reform)
Bill 2017. These Schedules relate to the proposed drug testing measures in
the Bill.
A Bills Digest covering all of the Schedules to the Bill
will be published as soon as possible.
|
Schedule 12 Drug testing trials
- Schedule
12 amends the Social
Security Act 1991 and the Social Security
(Administration) Act 1999 to enable the Government to run drug testing
trials in three locations.
- From
1 January 2018 5,000 new recipients of unemployment payments will be asked to
take drug tests as part of a trial to take place in three locations around
Australia. Those persons who refuse to take the test may face penalties.
- People
testing positive on the first test will be placed on income management. If they
test positive on later tests they may be asked to accept drug treatment as part
of their mutual obligation requirements.
- The
drug testing trials have two objectives. To:
- maintain
the integrity of, and public confidence in, the social security system by
ensuring that tax-payer funded welfare payments are not being used to purchase
drugs or support substance abuse and
- provide
new pathways for identifying recipients with drug abuse issues and facilitating
their referral to appropriate treatment where required.
- According
to the Explanatory Memorandum, the trial will be evaluated and the results will
inform decisions about extending the trial or rolling out drug testing more
broadly. Currently there is little evidence about the effectiveness of drug
testing as a welfare-to-work measure.
- There
are a number of issues that may be of concern:
- the
Government did not consult with outside experts or service providers while
developing the policy. Few welfare agencies, health professionals or drug
treatment experts regard a combination of random drug testing and penalties for
refusal to undertake treatment as a promising approach. A review of similar
policy proposals in the United Kingdom did consult widely and did not recommend
random drug testing or mandatory drug treatment
- a
number of policy experts and commentators have suggested that drug testing
measures are more about signalling the government’s disapproval of drug use
than assisting problem drug users into employment
- if
the cashless debit card (or a similar card that is distinctive and readily
identifiable) is used to income-manage recipients who test positive on a drug
test may lead to stigma because it identifies card holders as drug users. The
card used in the current cashless debit card trial sites has been featured in
numerous media reports and is readily identifiable
- the
availability of drug and alcohol treatments in the context of national
undersupply
- the
Department of Human Services (DHS) will engage contractors to administer the
drug tests and determine that a person should be subject to income management.
Schedule 13 Removal of exemptions for drug or alcohol
dependence in participation requirements
- Schedule
13 amends the Social Security Act to:
- establish
a new category of income support recipient—a declared program participant—that
is, someone who is a participant in an employment services program specified in
a determination (an alcohol and/or other drug treatment program) and
- remove
exemptions from participation requirements for income support recipients who
are dependent on alcohol and/or other drugs and refuse or fail to undertake
treatment—that is, become a declared program participant.
Schedule 14 Changes to reasonable excuse provisions
- Schedule
14 amends the Social Security (Administration) Act to enable the
Secretary to determine by legislative instrument matters that he, or she, must
not take into account in deciding whether or not a job seeker has a reasonable
excuse for committing a compliance failure. The legislative instrument will provide that a job seeker’s abuse of, or dependence on, alcohol and/or
other drugs will only be able to be used as a reasonable excuse once.
- The job seeker will not be penalised for the compliance failure, but
will be given the option of participating in alcohol and/or other drug
treatment. If the job seeker refuses to participate in treatment and fails to
meet their mutual obligations again, then drug or alcohol dependency will not
be considered a reasonable excuse, and sanctions may be applied.
- If job seekers feel they are being compelled to participate in
treatment, this could have a negative impact on their treatment outcomes.
- Evidence suggests that existing demand for alcohol and other drug
treatment services is not currently being met and the above measures could
exacerbate this situation.
- While the evidence generally shows that rates of substance use are
higher among the unemployed, it also suggests that substance use poses no more of
a barrier to employment than other factors, such as poor health and a lack of
relevant skills.
Purpose of
the Bill
The primary purpose of the Social Services Legislation
Amendment (Welfare Reform) Bill 2017 (the Bill) is to amend social welfare
statutes to:
- create
a single job seeker payment
- establish
a drug testing trial and
- remove
existing exemptions for jobseekers experiencing drug or alcohol dependence.
Structure of the Bill
The Bill has 18 Schedules as follows:
- Schedule
1 amends the A
New Tax System (Family Assistance) Act 1999 (FA Act) Farm Household
Support Act 2014, Income Tax
Assessment Act 1936 (ITAA 1936), Income Tax
Assessment Act 1997 (ITAA 1997), Social Security
Act 1991 (SS Act), Social Security
(Administration) Act 1999 (SSA Act) and the Veterans’ Entitlements
Act 1986 (VEA) to create a single job seeker payment
- Schedule
2 amends the ITAA 1936, the ITAA 1997, the SS Act, the SSA
Act, the Social
Security (International Agreements) Act 1999 (SS International
Agreements Act) and the VEA to bring about the cessation of widow B
pension
- Schedule
3 amends the FA Act, the Child Support
(Assessment) Act 1989, the ITAA 1936, the ITAA 1997, the SS Act,
the SSA Act, and the VEA to bring about the cessation of wife
pension
- Schedule
4 amends the ITAA 1997, the SS Act, the SSA Act, the SS
International Agreements Act and the VEA to bring about the
cessation of bereavement allowance
- Schedule
5 amends the A
New Tax System (Medicare Levy Surcharge—Fringe Benefits) Act 1999 and
other social welfare statutes to bring about the cessation of sickness
allowance
- Schedule
6 amends social welfare statutes to bring about the cessation of widow
allowance
- Schedule
7 amends socials welfare statutes to bring about the cessation of Partner
allowance
- Schedule
8 contains a rule-making provision for the Minister
- Schedule
9 amends the SS Act to change the activity tests for persons aged 55–59
- Schedule
10 amends the SSA Act to alter the start day to some participation
payments
- Schedule
11 removes the intent to claim provisions from the SS Act and the SSA
Act
- Schedule
12 establishes the drug testing trial
- Schedule
13 removes the exemptions for drug or alcohol dependence
- Schedule
14 amend the SSA Act to bring about changes to the reasonable excuses
- Schedule
15 introduces a new compliance framework for mutual obligation requirements in
relation to participation payments
- Schedule
16 streamlines the collection of tax file numbers
- Schedule
17 relates to information management and
- Schedule
18 amends the Disability
Discrimination Act 1992 to align the Social Security and disability
discrimination law.
Structure
of this Bills Digest
As the matters covered by many of the Schedules are
independent of each other the relevant background, stakeholder comments (where
available) and analysis of the provisions are set out under each Schedule
number.
Committee
consideration
Senate
Community Affairs Legislation Committee
The Bill has been referred to the Senate Community Affairs
Legislation Committee for inquiry and report by 4 September 2017.[1]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not commented on the Bill.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[2]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had not commented on the Bill.
Schedule
12—Establishment of a drug testing trial
Quick guide to Schedule 12
The measures in Schedule 12 to the Bill provide for a two-year
trial in three regions involving mandatory drug testing for 5,000 new
recipients of Newstart Allowance and Youth Allowance (other).
|
Commencement
The amendments in Schedule 12 to the Bill commence on 1
January 2018 if Royal Assent is before that date. Otherwise the amendments
commence on the first 1 January, 1 April, 1 July or 1 October to occur after
the end of the period of two months beginning on Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 12 is ‘not for publication’.[3]
Background
Drug testing has been part of the international welfare
reform debate since the 1990s. Supporters have argued that drug testing has a
number of benefits including preventing the misuse of taxpayer’s money, sending
a message that drug use is unacceptable, ensuring recipients are ready for
work, saving money, and promoting recipient well-being. However, in many cases,
policymakers do not make their goals explicit.
Proposals for drug testing income support recipients have
been debated in Australia, Canada and the United Kingdom.[4]
A number of American state governments have introduced drug testing schemes and
the New Zealand Government has a policy that supports pre-employment drug
testing by employers and training providers.[5]
According to a 2016 paper by the Congressional Research
Service, there is little evidence about the effectiveness of drug testing
measures in the United States. Part of the problem is a lack of clarity about what
policymakers are trying to achieve.[6]
The objectives could include restricting payments to those deemed worthy of
support, punishing individuals for engaging in undesirable behaviour or
deterring people from engaging in illicit drug use.[7]
The recent debate in the United Kingdom is the most relevant
to Australia. As in Australia, United Kingdom policymakers justified drug
testing measures in terms of helping income support recipients move into
employment. The United Kingdom experience is discussed in more detail below.
Principled
versus pragmatic considerations
Many of the arguments for and against drug testing and
compulsory treatment draw on ethical principles. For example, Katherine Bradley
and Robert Rector of the Heritage Foundation argue:
Taxpayers should provide support to those in need, and
recipients in return should engage in responsible and constructive behaviour as
a condition of receiving aid. Requiring welfare recipients to stop using
illegal drugs is a core element of reciprocal obligation.[8]
Other ethical principles include human rights such as the
right to privacy.
As well as considerations of principle, there are
pragmatic considerations. These have to do with providers’ ability to implement
the measures successfully and how effective the measures are at achieving
objectives such as moving income support recipients from welfare to work.
Both internationally and in Australia, supporters of drug
testing and compulsory treatment have relied heavily on ethical arguments about
mutual obligation while medical professionals and drug treatment providers have
relied on arguments based on human rights and pragmatic considerations.
According to evidence given during Senate Estimates
hearings, the Department of Social Services (DSS) did not consult organisations
representing medical professionals or drug treatment providers about the
measure prior to its announcement in the 2016–16 Budget.[9]
Earlier
Australian proposals
During the 2007 election campaign the Coalition announced
that, if the Government was re-elected, income support recipients convicted of
criminal drug offences involving hard drugs would be placed on income
management.[10]
Then Prime Minister John Howard said: ‘we take the view that it’s not right
that people should have control of taxpayer money when they have been convicted
of such offences’.[11]
The policy was not part of the Coalition’s 2013 election campaign.
In 2012 Liberal National Party MP George Christensen (Member
for Dawson) proposed that income support payments for the unemployed should be
conditional on passing a drugs test.[12]
However, Kevin Andrews, then Shadow Minister for Families, Housing and Human
Services, stated that this was not Coalition policy.[13]
In 2013 the Australian National Council on Drugs (ANCD)
published a position paper on drug testing. The paper concluded:
There is no evidence that drug testing welfare beneficiaries
will have any positive effects for those individuals or for society, and some
evidence indicating such a practice could have high social and economic costs.
In addition, there would be serious ethical and legal problems in implementing
such a program in Australia. Drug testing of welfare beneficiaries ought not be
considered.[14]
The issue resurfaced in 2014 after the release of the interim
report of the Reference Group on Welfare Reform (the McClure Report). The interim
report referred to pre-employment drug testing requirements for jobseekers in
New Zealand and there was speculation in the media that the Australian
Government was considering introducing a similar measure.[15]
While then Minister for Social Services, Kevin Andrews, appeared reluctant to
completely rule the measure out, he said that the Government was unlikely to go
ahead with it.[16]
In November 2015 Senator Jacqui Lambie asked the
Attorney-General, Senator George Brandis, if the Government would support
testing income support recipients for illicit drugs. The Attorney-General responded
that ‘the government has no present intention to legislate in that respect’.[17]
United
Kingdom experience
In the United Kingdom policymakers have considered similar
measures to those proposed in this Bill. In 2009 the Brown Labour Government
legislated to include drug testing as part of a broader plan to identify
problem drug users and require them to accept treatment.[18]
While there was some support in the media for a tougher approach to drug users,
the proposal was harshly criticised by the Government’s Social Security
Advisory Committee and others.[19]
The measures were later abandoned by the Cameron Coalition Government and the drug
testing requirements were removed from legislation.[20]
Welfare
reform proposals
In 2008 the Brown Government released a green paper on
welfare reform: No One Written Off: Reforming Welfare to Reward Responsibility.
The green paper stated: ‘Taxpayers cannot be expected to support a
drug-dependent lifestyle, so where drug treatment is available and considered
appropriate, then there should be an obligation that individuals will take it
up’.[21]
It suggested requiring benefit applicants to declare whether they are addicted
to heroin or crack cocaine and backing this up by using information sharing
with police and contracted-out drug testing (in a small number of cases) to
identify those making misleading statements.[22]
The Social Security Advisory Committee criticised the
Government’s proposals, particularly the proposal to make income support
conditional on accepting drug treatment:
We find the proposals in relation to those citizens who
suffer from addiction to crack cocaine and opiates to be unconvincing,
simplistic, and to present a number of issues that demand much more thought
before they are taken further. The abuse of illegal drugs – just as with
alcohol abuse – can be a major barrier to entering, and staying in, employment.
However, we find little to commend the Government’s proposed approach. It is
our understanding that all the evidence points to drug rehabilitation
programmes being most effective when the client actively wishes to engage in
treatment.[23]
The proposals also attracted strong criticism from
organisations involved in drug treatment. For example, Drugscope, an
organisation representing treatment providers, suggested that ‘compulsion and
threats of benefit sanctions could do more harm than good, risking further
marginalisation’.[24]
While the Government acknowledged that some groups had
concerns, it decided to push ahead with the plan. In its white paper Raising
Expectations and Increasing Support: Reforming Welfare for the Future the
Government outlined a new regime for problem drug users. Income support
recipients identified as problem drug users would be referred to a healthcare professional
who would determine whether they should be referred to a program of support.
The Government indicated that it was ‘exploring whether drug testing has a role
to play in respect of claimants who fail to engage’.[25]
While on the program, recipients would be required to agree to a rehabilitation
plan and ‘make real efforts to make progress against it. If they fail to do so,
without good cause, they will be subject to sanctions’.[26]
The Government planned to pilot and evaluate these measures before any national
rollout.[27]
Welfare
Reform Act 2009
The Brown Labour Government introduced provisions to
support this new regime for problem drug users in the Welfare
Reform Bill 2009. According to legal academic Emma Wincup:
The ‘new regime’ for [problem drug users] was met with
relatively little opposition in the early stages, sending out a powerful
message that drug testing and the use of quasi-compulsory drug treatment for this
group had become palatable to all political parties. It also provides evidence
of a new cross-party ‘welfare settlement’ surrounding welfare-to-work policies,
characterised by a common moralist or behavioural approach.[28]
Drug sector organisations and the organisations
representing the medical profession continued to oppose the measures. For
example, Drugscope argued:
Drug testing should not be introduced into the benefit
system. It is an invasive procedure. A drug test can only reveal that a
particular substance is present in somebody's body at a particular time. This
means, for example, that test results can be identical for someone with a
serious crack cocaine dependency and for a first time participant.
The Royal College of Psychiatrists supported Drugscope’s
position and argued that sanctions may not improve compliance with treatment,
could drive people deeper into poverty, and may undermine the relationship
between clinicians and clients.[29]
According to Emma Wincup, a widely shared objection to
drug testing was that it could breach Article 8 of the European
Convention of Human Rights.[30]
Article 8 provides a qualified right to privacy. Drug testing and compulsory
medical treatment fall under the cope of this article.[31]
The Joint Committee of Human Rights of the UK Parliament took
the view that the Government had not provided evidence to support its position
that the interference with individual rights was necessary and ‘that evidence
to support the Government’s position should be sought during a pilot programme
which could pose a significant risk to individual privacy rights’. The Committee
recommended that drug testing and compulsory treatment should be removed from
the Bill.[32]
Plans for a
pilot scheme
Despite concerns about drug testing and mandatory
treatment measures, the Brown Government pushed ahead with plans for a pilot
scheme. After the Welfare Reform Act 2009 was enacted, the Government
began consulting on regulations to enable a pilot scheme that included drug
testing and mandatory referral to treatment.
The Government’s Social Security Advisory Committee
continued to oppose the pilot arguing that there was little evidence that a
mandatory approach to treatment would help problem drug users move towards the
labour market. It also advised against drug testing stating:
... we believe that the introduction of drugs testing
represents a step too far in increasing conditionality. We would very much like
to see the use of mandatory drugs tests removed from the pilot.[33]
By the time the Committee’s report reached the Secretary
of State for Work and Pensions, an election had been held and the Government
had changed. After receiving the Social Security Advisory Committee’s report,
the new Cameron Coalition Government announced that it would not proceed with
the pilots.[34]
The drug testing requirements were removed from legislation in 2012.[35]
Income
management proposal
In a 2014 report, the Centre for Social Justice[36]
proposed using cashless welfare cards for income support recipients who failed
to engage with treatment:
For those with an entrenched alcohol or drug addiction who
refuse treatment, who have not been in employment for a year and who have
children, the use of welfare cash cards should be considered. Whilst this alone
will not help addicts recover, evidence from similar successful initiatives in
Australia has shown that such a scheme can protect addicts and their families
by limiting the expenditure of their benefits to basic essentials such as food,
clothing, travel etc. Beyond this, it will establish a principle that
taxpayers’ money should not go directly into the pockets of drug dealers and
may restore faith in our welfare system. We recommend piloting the scheme in
the first instance.[37]
The Centre for Social Justice supported the principles of
the Welfare Reform Act 2009 but argued that the Government would not
have been able to implement them effectively. According to report, the major
problem is that there are too few high quality abstinence-based treatment
options available to people on income support. As a result, the pilots would
have placed large numbers of problem drug users on methadone and this ‘would
simply lead to people substituting one addiction for another and, ultimately,
not help them to become clean’. The report proposed phasing in reforms as new
treatment capacity became available.[38]
The Black Review
By early 2015, the Cameron Government had broadened its
focus beyond illicit drugs to include other treatable conditions that prevent
income support recipients moving into work. These included alcohol dependency
and obesity. The Government asked Professor Dame Carol Black to undertake a
review.
In February 2015 Prime Minister David Cameron said:
Too many people are stuck on sickness benefits because of
issues that could be addressed but instead are not. Some have drug or alcohol
problems, but refuse treatment. In other cases people have problems with their
weight that could be addressed, but instead a life on benefits rather than work
becomes the choice. It is not fair to ask hardworking taxpayers to fund the
benefits of people who refuse to accept the support and treatment that could
help them get back to a life of work.[39]
The Prime Minister asked Professor Black ‘to consider
whether people should face the threat of a reduction in benefits if they refuse
to engage with a recommended treatment plan’.[40]
Professor Black did not support this option in her 2016 report:
... we doubt whether mandation of treatment – one of the
possibilities mentioned in our terms of reference – should be the first
response to the evident problems for the cohorts under discussion. Further,
there is a strong consensus that mandating treatment would lead to more people hiding
their addiction than reveal it. We also heard from health professionals serious
concerns about the legal and ethical implications of mandating treatment and
whether this would be a cost effective approach.[41]
The Black Report did not recommend using drug testing to
identify problem drug users.
Policy
position of non-government parties/independents
Australian
Labor Party
Labor members have expressed concern about the proposed
drug testing trials. They note that similar measures in the United States have
shown ‘little evidence of achieving better outcomes for people with substance
abuse issues’ and that the Government has not provided evidence to show that
the measures will lead to better health outcomes.
In 2014 Senator Kim Carr was asked to comment the idea of
drug testing after Kevin Andrews, then Minister for Social Services, had ruled
it out:
... it was a silly idea. We’ve seen these punitive measures
being taken in a range of Government programs now. This is a Government that is
quietly vicious in terms of the way it treats people, particularly our most
vulnerable in the community.[42]
Australian
Greens
The Australian Greens oppose the drug testing measure. In
a media release Senator Rachel Siewert said:
Drug addiction needs to be treated as a health issue. Testing
income support recipients has been a failed measure in the US and has been
abandoned after proposals in the UK and Canada. It needs to be abandoned.[43]
Nick
Xenophon Team
In a post Budget interview Senator Nick Xenophon said that
he is a supporter of mandatory rehabilitation for people with severe substance
abuse problems but said that it mattered how it was done. When asked whether he
would oppose drug testing measures he said he wanted to see the detail.[44]
Jacqui
Lambie
In 2015 Senator Jacqui Lambie proposed that income support
recipients should be drug tested.[45]
Asked about the drug testing measure in the Budget Senator Lambie said: ‘By
second-guessing which ones they're going to do rather than doing it full-on
random, I'm not sure they'll get the result they want to achieve’.[46]
Other
independents
According to a report in The Australian on 22 May
2017, Senators Derryn Hinch and Cory Bernardi are likely to support the drug
testing measure.[47]
How the
drug testing trial will operate
The drug testing trial established by the Bill has two
objectives. It seeks to:
- maintain
the integrity of, and public confidence in, the social security system by
ensuring that tax-payer funded welfare payments are not being used to purchase
drugs or support substance abuse and
- provide
new pathways for identifying recipients with drug abuse issues and facilitating
their referral to appropriate treatment where required.[48]
The trial aims to test the effectiveness of these new
pathways.[49]
Officers of the DSS told the Senate Community Affairs Committee that the trial
is designed to build evidence.[50]
The Government will select three sites for the trial. Over
a two-year period, 5,000 new recipients of Newstart Allowance and Youth
Allowance (other) will be required to undertake tests to identify whether they
have used illegal drugs.[51]
The Government plans to begin the trial in 1 January 2018.[52]
Selection
of the three trial sites
The Government announced in Augusts that the three
locations of the drug testing trial would be Canberbury-Bankstown (NSW), Logan
(QLD) and Mandurah (WA)[53].
The Government targeted areas with a high incidence of drug use, identified
based on data from:
- the
Australian Institute of Health and Welfare's (AIHW) 2013 National Drug Strategy
Household Survey
- state
and territory government crime statistics on drug use and possession
- administrative
data from the DHS on jobseekers that identify drug dependency issues
- the
Australian Criminal Intelligence Commission's 2017 National Wastewater Drug
Monitoring Program report.[54]
The Government will also consider the availability of
treatment services.
When the drug testing measure was announced in the Budget,
there was considerable media interest in the idea that the Government would use
National Wastewater Drug Monitoring Program data to identify sites with high
levels of drug use. However, it seems unlikely the Government will rely heavily
on this data when selecting sites. While the Australian Criminal Intelligence
Commission’s report gives results for capital cities, it does not identify
particular regional sites.[55]
Item 1 of Part 1 in Schedule 12 to the Bill inserts
the definition of drug test trial area into subsection 23(1) of
the Social Security Act being an area prescribed by the drug test
rules. Item 3 of Part 1 in Schedule 12, inserts proposed
section 38FA into the SS Act to empower the Minister, by legislative
instrument, to make drug test rules. The rules provide for a
range of matters including but not limited to:
- prescribing
the drug test trial areas
- prescribing
substances for the purposes of the definition of testable drug[56]
- giving
and taking samples of persons’ saliva, urine or hair for use in drug tests and
the dealing with such samples
- carrying
out drug tests and
- the
giving of results of drug tests in certificates or other documents and the
evidentiary effect of those certificates or documents.
Selecting
recipients for drug testing
The drug testing regime will only apply to recipients of
Newstart Allowance and Youth Allowance (other) who make a claim after 1 January
2018. Item 1 of Part 1 in Schedule 12 to the Bill inserts the definition
of drug test trial member into the SS Act. A person is a drug
test trial pool member at a time if all of the following are satisfied:
- that
time is in the drug test trial period
- at
that time the person’s usual place of residence is in a drug test trial area
and
- at
that time the person is receiving Newstart Allowance or Youth Allowance (otherwise
than on the basis that the person is a new apprentice or undertaking full‑time
study) as a result of a claim made in the drug test trial period.
Claimants will be required to acknowledge that they may be
required to undergo drug testing as a condition of payment.[57]
The Government plans to use a two-step process to select
individuals for testing. First it will identify a group of recipients
who are at higher risk of drug misuse and second, it will randomly
select individual recipients from this group.[58]
According to the Minister of Social Services, Christian Porter:
We'll use a combination of data that we will help develop
with Data61 and the CSIRO, our own internal data at DHS and DSS which looks at
track records of clusters of people in terms of their compliance. We'll put all
of that together and identify a broad group of people and then randomly select
inside that broad group inside each of the three trial sites.[59]
The tests will be conducted by third party drug testing
providers.[60]
Item 18 of Part 1 in Schedule 12 to the Bill inserts proposed section
64A into the SSA Act. This section empowers the Secretary to enter
into contracts for the carrying out of drug tests.
Recipients who fail the first test
Item 24 in Part 1 of Schedule 12 to the Bill
inserts proposed subsection 123UFAA(1A) into the SSA Act so that
if an income support recipient tests positive they will be placed on income
management for 24 months.
Recipients cannot avoid income management by moving off
payment and reclaiming later. If they reclaim they will be placed on income
management for the remainder of the 24 months.[61]
Recipients who test positive on the first test will be
required to undertake further tests. According to the Explanatory Memorandum to
the Bill, ‘they will be required to undertake the next test within 25 working days
of the first test’.[62]
However, this time period is not specified in the Bill itself.
Recipients
who fail second or subsequent tests
If a recipient tests positive again during the 24-month
period, they will be referred to a medical professional for assessment. If the
medical professional recommends some form of treatment, these treatment
activities will form part of the recipient’s mutual obligation requirements.
Currently section 544A of the SS Act requires a
person who is in receipt of Youth Allowance (with some specified exceptions) to
enter into a Youth Allowance Employment Pathway Plan. Section 544B sets out the
terms of the Employment Pathway Plan. Sections 605 and 606 of the SS Act
contain provisions in equivalent terms in respect of recipients of Newstart
Allowance.
Item 4 of Part 1 in Schedule 12 to the Bill inserts
proposed subsection 544B(1AA) into the SS Act so that one of the
requirements of the Youth Allowance Employment Pathway Plan in relation to a
person must relate to undertaking treatment for the use of drugs if:
- the
person is a drug test trial pool member
- the
person has two or more positive drug tests
- the
person has undergone a medical, psychiatric or psychological examination after
the person has had those positive drug tests and
- the
report of the examination given to the Secretary recommends that the person
undertake treatment for use of drugs.
Item 7 of Part 1 in Schedule 12 to the Bill inserts
proposed subsection 606(1AA) into the SS Act in equivalent terms
in relation to a Newstart Allowance Employment Pathway Plan.
Minister Porter explained that this treatment could take a
number of forms:
... when people think about recovery and rehabilitation from
drug abuse they often think of residential rehabilitation, which is probably at
the very high end of the spectrum of treatments. The overwhelming—the largest
percentage of treatment is usually counselling, and indeed assessment that
leads to counselling.[63]
According to the Explanatory Memorandum, if treatment is
not immediately available, ‘recipients will be required to take appropriate
action such as being on a waiting list to satisfy part of their mutual
obligation requirements’.[64]
Recipients who are required to undertake drug treatment may also be required to
undertake other activities such as job search.[65]
Recipients
to repay the cost of positive tests
Recipients who test positive to a drug test other than the
first test will have to repay the cost of the test.
Item 11 in Part 1 of Schedule 12 to the Bill
inserts proposed Part 3.16C—Drug test repayment deductions into the SS
Act. The new Part provides that a drug test repayment amount arises for a
person for each positive drug test, with some exceptions. The repayment amount
is to be prescribed by a legislative instrument.[66]
According to proposed subsection 1206XA(7) of the SS Act, in
setting the amount ‘the Secretary must have regard to the lowest cost to the
Commonwealth of any drug test that could be carried out at the time the
legislative instrument is to commence’.
The cost of the test will be deducted from future income
support payments at a rate of no more than 10 per cent (unless the recipient
chooses to repay the cost more quickly).[67]
The Secretary will be able to reduce the rate in cases of hardship.[68]
Sanctions
Currently section 63 of the SS Act sets out the
circumstances in which the Secretary may require a person to attend the
Department. Item 15 in Part 1 of Schedule 12 inserts proposed
paragraph 63(4)(c) into the SSA Act so that if the person is a drug
test trial pool member, the Secretary may require the person to give a
sample of a particular kind at a particular place for a drug test to be carried
out on the sample. Existing section 64 of the SSA Act operates so
that where the Secretary gives a person a notice requiring the person to do a
thing (and the requirement is reasonable),[69]
payment to the person is not payable if the person does not comply with that
requirement.[70]
Refusal to
undertake drug test
If a person refuses to undertake a drug test, without
reasonable excuse, they will be subject to a drug test refusal waiting
period of 28 days starting on the day their payment was cancelled.[71]
This means that if a person reapplies for payment, they will not be able to
receive it for 28 days from the day their payment was cancelled.
In addition, a recipient who tests positive can request a
re-test. However, if this test is also positive they will have to repay the
cost of the test.[72]
Key issues
Lack of
consultation during policy development
The Government did not consult with outside experts while
developing the policy.[73]
A review of similar policy proposals in the UK consulted widely and did not
recommend random drug testing or mandatory drug treatment.[74]
Ministers have said that the trial is designed to make
income support recipients better off by helping them move off income support
and into paid work:
The drug testing trial we are seeking Parliament’s agreement
to is not designed to stigmatise or penalise people. In fact our aim is the
complete opposite; we want to identify those people with drug issues and help
them so that they can ultimately enjoy the whole range of benefits that come
from earning a living through work.[75]
However, the Government has not provided a clear
explanation of how the drug testing regime will assist trial participants into
employment and avoid stigmatising or penalising them. Few welfare agencies,
health professionals or drug treatment experts regard a combination of random
drug testing and penalties for refusal to undertake treatment as a promising approach
(for example, see stakeholder comments below).
In the UK, Professor Carol Black’s review consulted
widely. The review did not recommend random drug testing or mandatory treatment
(see above). It also cautioned against relying on drug treatment alone to
achieve outcomes:
It is clear that providing treatment alone, without
additional support like employment, housing and skills, has limited and
inconsistent effects on employment. Increasing the proportion of people with a
drug and/or alcohol dependence entering treatment would not, of itself, deliver
the Government’s desired improvement in job outcomes.[76]
The Black review recommended an integrated approach to
services. In Australia the National Ice Taskforce recommended better
coordination ‘between community-based alcohol and other drug services, and
support referral pathways between local health, support, employment and other
programmes’.[77]
It is not clear whether the Government has considered integrating employment and
other services with drug treatment as part of the trials.
Questions
about the Government’s objectives
Some policy experts and commentators have suggested that
drug testing measures are more about signalling the Government’s disapproval of
drug use than assisting problem drug users into employment.
In Australia Professor Peter Whiteford wrote: ‘it’s
difficult to escape the conclusion that this proposal is symbolic, rather than
designed to have a positive impact on the well-being of those to be tested’.[78]
Former Coalition adviser Peta Credlin made a similar point in an interview on
Sky News:
If it was a more substantial cohort of 5,000, I would say it
is a serious policy. If it was built with the support of the welfare
constituency, I’d say it was serious policy. I think this is again a shopping list
out of the focus groups of things they wanted to include.[79]
Commentators have made similar comments about drug testing
schemes overseas. For example, in 2011 The Economist suggested that
a Florida drug testing program was designed primarily to signal the
government’s ‘disapproval of poor people using drugs’.[80]
Evaluation
Evaluation is a key part of the trial. Currently there is
little evidence about the effectiveness of drug testing as a tool to move
people from welfare to work.[81]
According to the Explanatory Memorandum:
The trial will be subject to a comprehensive evaluation which
will inform any decisions about extending the trial or rolling out drug testing
more broadly.[82]
The Government has not provided any detail about how the
evaluation will be designed and conducted. The design of the evaluation will be
critical because a number of evaluations previously commissioned in the social
services portfolio have produced only weak evidence about program impact. For
example, the 98-page report of the evaluation of income management in the
Northern Territory noted that the evaluation depended on the perceptions and
views of stakeholders rather than objective indicators and conceded that ‘the
overall evidence about the effectiveness of income management was not strong’.[83]
Privacy and
stigmatisation
If the cashless card used to income manage recipients is
readily identifiable, it may lead to stigma by allowing retailers and others to
infer that card holders are drug users.
If an income support recipient tests positive to the first
drug test, they will be placed on income management.[84]
This will involve receiving a proportion of their payment on the BasicsCard. The
BasicsCard is currently used in a number of income management sites around
Australia. It has been featured in numerous media reports and is readily
identifiable.[85]
Unless the drug testing trials are run in the same
locations as income management trials, using the BasicsCard could identify a
person as a drug user. It is likely to become common knowledge in trial sites
that people are issued with a BasicsCard if they test positive on a drug test.
Initially it was not clear what kind of card the
Government planned to use in the drug testing trial sites.[86]
However, in a joint submission to the Community Affairs Legislation Committee,
the Departments of Social Services, Employment, and Human Services stated that
the trial would rely on the BasicsCard:
The drug testing trial will adapt the existing Supporting
People at Risk (SPaR) model of Income Management. Under this model, where a
recipient has returned a positive drug test result, DHS will receive a referral
for Income Management from the drug testing provider. Following this referral, the
recipient will have an interview with [the Department of Human Services] to
ensure they understand how Income Management works, to issue them with a
BasicsCard, to discuss their priority needs and have Income Management
deductions set up accordingly.[87]
The Supporting People at Risk (SPaR) measure of income
management is used in the Northern Territory for people who have been placed
into mandatory alcohol treatment.[88]
The role of
contractors
The Bill empowers the Secretary of the DHS, on behalf of
the Commonwealth, to engage contractors to administer the drug tests.[89]
Proposed subsection 64A(3) of the SSA Act provides
that the drug test rules may require a contract to include provisions requiring
the following:
- giving
the Secretary written notice of the results of the drug test
- giving
notice (in accordance with proposed paragraph 123UFAA(1A)(c)) that in
the 24 months, or longer period (if any) before the test time, the contractor
who carried out the test gave the Secretary a written notice saying that the
person should be subject to the income management regime
- withdrawing
or revoking a notice (in accordance with proposed paragraph 123UFAA(1A)(d))
- giving
notice (in accordance with proposed subsection 1206XA(5) of the SS
Act) and
- any
subcontracts to are to include the matters set out in those provisions.
In effect, the Bill empowers the contractor to give the
Secretary a written notice saying that the person should be subject to the
income management regime—rather than giving the Secretary notice of the outcome
of the person’s drug test and leaving it to the Secretary to determine, on that
evidence, that payments are no longer payable.
The Explanatory Memorandum is silent about the rationale
for this provision. It may well be that it relates to the privacy of
recipients—that is, by merely stating that the person should be subject to the
income management regime rather than stating the nature and amount of testable
drug which is detected, that information will not become part of the
recipient’s file. These matters will be clearer when the relevant drug test
rules are made.
Schedule 13—Removal of exemptions for drug or alcohol
dependence
Quick guide to Schedule 13
The amendments in this Schedule:
establish a new category of income support
recipient—being a declared program recipient—that is, someone
who is a participant in an employment services program specified in a
determination (an alcohol and/or other drug treatment program) and
removing exemptions from the mutual
obligation requirements where the reason for the exemption is wholly or
predominantly attributable to the person’s dependence on alcohol or another
drug, unless the job seeker is a participant in an employment services
program to be specified in a determination—that is, an alcohol and/or other
drug treatment program.
|
Commencement
The amendments in Schedule 13 to the Bill commence on 1
January 2018 if Royal Assent is before that date. Otherwise the measures
commence on the first 1 January, 1 April, 1 July or 1 October to occur after
the end of the period of two months beginning on Royal Assent.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 13 is an expense of $28.8 million.[90]
Background
Schedule 13 gives effect to one of the
measures that was announced as part of the 2017–18 Budget.[91]
Mutual obligation requirements
Under the SS Act, job seekers who are
in receipt of an activity-tested income support payment must meet various
mutual obligation requirements.[92]
These requirements are imposed to ensure that job seekers who are able to do so
are actively looking for work and participating in activities intended to help
them into employment.
Where a job seeker is experiencing special
circumstances that are beyond their control (such as a major personal crisis or
homelessness) or temporarily incapacitated due to sickness or an accident they
may gain an exemption from their mutual obligation requirements for a given
period. These special circumstances, sickness, or accidents may be primarily a
result of the job seeker’s dependence on or misuse of alcohol and/or other
drugs. Currently, there is no obligation for job seekers who gain an exemption
from their mutual obligation requirements to attempt to address their alcohol
and/or other drug dependency. The Government claims that the number of job
seekers with an exemption related to alcohol and/or other drug dependency
increased from 2,920 to 5,256 in the five years between September 2011 and
2015.[93]
Before the DHS is able to impose a penalty
on a job seeker for failing to meet their mutual obligation requirements, it
must first determine whether or not the job seeker had a reasonable excuse for
doing so. Under the reasonable excuse provisions, a job seeker’s alcohol and/or
other drug dependency is one of the matters that must be taken into account in
determining whether or not they had a reasonable excuse for their compliance
failure.[94] Currently, there is no limit on the number of times that a job seeker
may use as a reasonable excuse for non-compliance their alcohol and/or other
drug dependency.
The Government has argued that the current
arrangements, outlined above, enable job seekers to avoid their mutual
obligation requirements and penalties for failing to meet these requirements by
using their alcohol and/or other drug dependence as an excuse, without making
any effort to address their dependency.
The measure in Schedule 13 seeks to deal
with these perceived failings.
It does so by removing exemptions from the mutual
obligation requirements where the reason for the exemption is ‘wholly or
predominantly attributable to the person’s dependence on alcohol or another
drug’, unless the job seeker is a participant in an employment services program
to be specified in a determination—that is, an alcohol and/or other drug
treatment program.
Key
provisions
Item 1 in
Schedule 13 to the Bill inserts the definition of a declared program
participant into the
dictionary at subsection 23(1) of the SS Act. According to this
definition, a declared program participant is a participant in an employment
services program specified in a determination made under section 28C of the SS
Act.
Item 2 inserts proposed
section 28C into the SS Act to allow the Secretary to make a
determination, by legislative instrument, in relation to participants in a
specified employment services program.
Currently, the SS Act allows for job
seekers to be exempted from their mutual obligation requirements if the
Secretary is satisfied that they are unable to meet these requirements due to
illness, accident or special circumstances.[95] Items
3–12 in Schedule 13 to the Bill do two things:
- first they remove these exemptions for
recipients of Disability Support Pension, Parenting Payment, Youth Allowance
(other), Newstart Allowance and Special Benefit whose illness, accident or
special circumstance is determined to be primarily a result of their dependence
on or misuse of alcohol or another drug
- second they provide that the exemptions will
remain for job seekers who are declared program participants—that
is, participating in alcohol and/or other drug treatment.
The Explanatory Memorandum indicates that
remote job seekers participating in the Community Development Program, a
majority of whom are Indigenous, and many of whom are disadvantaged, will be
included in the declared program participant category.[96] It
goes on to suggest that this exemption is justified on the grounds that ‘the
Community Development Program is specifically designed to reflect the unique
labour market conditions that job seekers face in remote Australia’, and, to
the extent that CDP participants will be treated differently to participants on
other employment services programs, ‘this is reasonable and proportionate to
the objective of the Community Development Program’.[97]
The Explanatory Memorandum notes that
Indigenous Australians ‘statistically experience higher levels of alcohol or
drug dependency compared with the Australian population generally’.[98] As such, the change is likely to impact disproportionately on those
Aboriginal and Torres Strait Islander job seekers who fall outside the
Community Development Program. This is acknowledged in the statement of
compatibility with human rights.[99]
The Explanatory Memorandum states that for
those job seekers who are declared program participants and participating in
treatment, ‘participation in this treatment will reduce, or in some
circumstances fully meet, their mutual obligation requirements’.[100] However, the basis on which this decision is to be made is unclear.
It is to be assumed that the arrangements
will be similar to those that apply under the drug testing trial. Under these
arrangements, job seekers are required to complete one or more treatment
activities as part of their Employment Pathway Plan. However, where treatment
is not immediately available, they will be ‘required to take appropriate action
such as being on a waiting list to satisfy part of their mutual obligation
requirements. Recipients with a drug treatment activity in the plan may still
be required to undertake other activities, including job search depending on
their circumstances’.[101] This may be at the discretion of the jobactive employment
services provider.
Schedule
14—Changes to reasonable excuses
Quick guide to Schedule 14
Schedule 14 amends the Social Security
(Administration) Act 1999 to enable the Secretary to determine by
legislative instrument matters that he, or she, must not take into account in
deciding whether or not a job seeker has a reasonable excuse for committing a
compliance failure.
|
Commencement
The amendments in Schedule 14 to the Bill commence on the
later of Royal Assent and 1 January 2018.
Financial
implications
According to the Explanatory Memorandum to the Bill, the
estimated impact on the fiscal balance over the forward estimates to 2020–21 of
the measures in Schedule 14 is an expense of $4.3 million.[102]
Background
Schedule 14 gives effect to one of the
measures that was announced as part of the 2017–18 Budget.[103]
The material set out under the heading ‘Background’ to
Schedule 13 above also applies to this measure.
Key
provisions
Division 3A in Part 3 of the SSA Act
contains the compliance framework which applies to recipients of participation
payments. Currently the Division empowers the Secretary to determine, by
legislative instrument, that certain matters may be taken into account in
deciding whether or not a job seeker has a reasonable excuse for committing a
compliance failure. The relevant failures relating to Newstart Allowance,
and for some people, Youth Allowance, Parenting Payment and Special Benefit are:
- no
show no pay failures[104]
- connection failures[105]
- re-connection failures[106]
- serious failure for refusing or failing to accept an offer of suitable
employment[107]
- non-attendance failures.[108]
The matters that must be taken into account
are those spelled out in a legislative instrument made under section 42U of the
SSA Act.
Items 1–5 in
Schedule 14 to the Bill amend notes in each of the relevant sections so that
whilst the Secretary will continue to be able to take certain matters into
account, the Secretary may be prohibited from taking other matters into
account. The relevant notes create a cross-reference to section 42U.
Items 6 and 7 amend
existing section 42U so that the section will explicitly list those matters
that are to be taken into account and those that are not. Proposed subsection
42U(3) of the SSA Act empowers
the Secretary, by legislative instrument, to determine matters that are not to
be taken into account in determining whether a job seeker has a reasonable
excuse for committing a compliance failure.
These changes are to give effect to the
Government’s commitment that, where a job seeker’s abuse of, or dependence on,
alcohol and/or other drugs has been used once as a reasonable excuse for a
compliance failure, it must not be taken into account for a second or
subsequent compliance failure.
According to the Explanatory Memorandum to
the Bill, it is intended that the existing reasonable excuse provisions will
continue to apply if alcohol and/or other drug treatment is unavailable
or inappropriate, including where the job seeker:
- is ineligible or unable to participate;
- has already participated in
all available treatment;
- has agreed but not yet
commenced in treatment; or
- has relapsed since
completing treatment and is seeking further treatment.[109]
That is, the job seeker will be able to
continue to have their abuse of, or dependence on, alcohol and/or other drugs
taken into account in relation to compliance failures.
The Government has indicated that the
legislative instrument will provide that a job seeker’s abuse of, or dependence
on, alcohol and/or other drugs will only be able to be used as a reasonable
excuse once.[110]
The job seeker will not be penalised for the compliance failure, but will be
given the option of participating in alcohol and/or other drug treatment. If
the job seeker refuses to participate in treatment and fails to meet their
mutual obligations again, then drug or alcohol dependency will not be
considered a reasonable excuse, and sanctions may be applied. However, this
will not be certain until the relevant legislative instrument is made.
Key issues
The proposed measures raise a number of
issues.
Whether the treatment is ‘voluntary’
While job seekers are said to be given the
option of voluntarily undertaking treatment for alcohol and/or other drug use
or dependency, it is open to question just how free this choice is. Given that
the alternative is for job seekers to no longer have their alcohol and/or other
drug use or dependency taken into account in considering whether they had a
reasonable excuse for compliance failure, and the prospect of future financial
penalties, some job seekers are likely to feel that they are effectively being
coerced into treatment. This has implications for the prospective outcomes of
any treatment entered into.
A number of meta-analyses (or systematic reviews) of general
research on mandatory drug treatment have been undertaken in recent years.[111]
Each of these indicates that the empirical evidence for the effectiveness of
mandatory treatment is inadequate and inconclusive. While there is some
evidence that coercion improves treatment entry and retention in treatment
relative to voluntary treatment, the evidence does not support the view that
coercion has positive impacts on treatment outcomes.
With regard to the mandatory treatment of income support
recipients in particular, the evidence is limited. This is largely because
mandatory drug treatment for income support recipients appears to be confined
to some United States (US) jurisdictions.
Availability
of treatment
The success or otherwise of the new measures—in terms of
increasing participation in treatment of job seekers with alcohol and/or other
drug issues—hinges on the availability and effectiveness of alcohol and other
drug treatment services.
State and territory governments are largely responsible
for the funding and provision of alcohol and/or other drug treatment services. Among
other things, state and territory governments provide public sector health
services and fund community-based organisations to furnish drug prevention and
treatment programs within their jurisdictions.
The Federal Government provides indirect support for
alcohol and other drug treatment services through various means, including
funding for Medicare, subsidised private health insurance, medication provided
through the Pharmaceutical Benefits Scheme (PBS) and allied health services.
The Federal Government also directly funds the delivery of treatment services
through the Substance Misuse Service Delivery Grants Fund, the Substance Misuse
Prevention and Service Improvement Grants Fund and the Non-Government
Organisation Treatment Grants Program.
In 2015 the Federal Government provided around $300
million over four years towards a package of measures that make up the National
Ice Action Strategy. A substantial proportion of this funding—$241.5 million—has
been allocated to the 31 Private Health Networks for the purpose of boosting
the alcohol and other drug treatment sector.
In 2012, the former Minister for Mental Health and Ageing,
Mark Butler requested that the Department of Health and Ageing conduct a review
of the drug and alcohol prevention and treatment services sector. This review
was undertaken by a team from the National Drug and Alcohol Research Centre
(NDARC) at the University of New South Wales, headed by Professor Alison
Ritter. The final report was submitted to the Government in 2014.
As a part of the study, the researchers undertook a gap
analysis to estimate the ‘the number of individuals who would be suitable for,
likely to seek and benefit from AOD treatment in any one year but who are not
being accommodated in the current service system’.[112]
They found that while Australia provides comprehensive alcohol and other drug
treatment services across a range of client groups, treatment types and
locations, and probably has one of the lowest rates of unmet demand in the
world, there is nevertheless greater demand for services than current supply.
It was estimated that ‘between 200,000 and 500,000 more
people would be in treatment if demand were to be fully met’.[113]
The study also identified some specific gaps, suggesting that there is a need
for more alcohol treatment services; services that cater for young people,
families and women with children and Aboriginal and Torres Strait Islander
people; and, residential rehabilitation, residential withdrawal,
pharmacotherapies and counselling.
As such, the measures are likely to exacerbate existing
levels of unmet demand, in the absence of increased services and better
matching of services to client need and geographic location. As noted above,
funding for alcohol and other drug treatment services is primarily the
responsibility of the states.[114]
Whether substance use and abuse is a barrier to employment
Representative national population survey data show that
rates of substance abuse are almost uniformly higher in unemployed samples than
employed samples. Unemployed people are more likely to consume excessive
amounts of alcohol, and to use illicit and prescription drugs. They are also
more likely to smoke and develop dependence on alcohol and illicit drugs.[115]
Latest available detailed findings from the National
Drug Strategy Household Survey, conducted by the AIHW, indicate that in 2013
use of illicit drugs in the past 12 months was more prevalent among the
unemployed.
Unemployed Australians were 1.6 times more likely to have
used cannabis, 2.4 times more likely to have used meth/amphetamines, 1.8 times
more likely to have used ecstasy, 1.6 times more likely to have misused
pharmaceuticals and 1.4 times more likely to have used cocaine than people who
were employed.[116]
A similar general pattern was seen among people who were unable to work.
Unemployed people were, however, less likely to drink alcohol at risky levels.
See figure below.
Figure 1:
drug use by employment status, people aged 14 or older, 2013 (per cent)
Source: AIHW, National
drug strategy household survey: detailed report: 2013, AIHW, Canberra,
2014, p. 92.
While the exact nature of the relationship between
unemployment and substance use/disorders is not entirely clear, the evidence
shows that problematic substance use increases the likelihood of unemployment
and decreases the chance of people finding and holding down a job. The reverse
also holds true; unemployment is a significant risk factor for substance use
and the subsequent development of substance use disorders. Unemployment has
also been found to increase the risk of relapse after alcohol and other drug
addiction treatment.[117]
It should be noted that while severe
substance abuse or dependence is likely to impede employability, a substantial
proportion of the research evidence indicates that drug use per se is
not a major barrier to employment.[118]
Most drug users are employed. And, while the above AIHW data show that the
overall prevalence of illicit drug use is higher among unemployed people than
employed people, they do not tell us how many unemployed people are abusing or
dependent on drugs.
Scott MacDonald et al note that ‘many
factors such as physical and mental health problems, lack of job skills,
perceived discrimination, and lack of transportation are major barriers for
employment’.[119]
They go on to argue that ‘a disproportionate emphasis on drug use as a factor
for not obtaining employment could be ineffective if these other factors are
not addressed as well’.[120]
Based on a review of the evidence related to
substance use among a cohort of income support recipients in the US, Lisa
Metsch and Harold Pollack reach similar conclusions. They found that broad
trends of substance use among Temporary Assistance to Needy Families (TANF)
recipients appeared to parallel trends in the general population, and that
widespread substance use was not a major cause of TANF recipients’ continued
economic dependence:
Although substance use disorders attract
widespread attention, they appear to be no more common, and are no more
important to employment and welfare receipt, than are concerns [such] as poor
physical health, poor academic skills, psychiatric disorders, transportation
difficulties, and more general concerns such as racial minority status,
language barriers, and immigration concerns.[121]
Stakeholder
comments
A majority of stakeholder comment has been in relation to
the proposed drug testing trials, introduced under Schedule 12 to the Bill.
Think
tanks—The Centre for Independent Studies
Peter Saunders of the Centre for Independent Studies has
argued for drug treatment as a mutual obligation activity. Although Dr Saunders
has not commented on the measures in this Bill he has made comments in the
past. In a 2013 paper, Re-Moralising the Welfare State, he makes an
ethical case for measures such as mandatory drug treatment:
It is an ethical mistake when people on the Left repeatedly
reject the distinction between ‘deserving’ and ‘undeserving’ cases, for while
it can be difficult to draw this distinction in practice in every case, the
attempt to do so lies at the heart of the fairness ethic. Those who have paid
into the system (through taxes or other contributions) should have entitlements
that others have not earned, and those whose irresponsible behaviour has
contributed to their neediness should expect behavioural conditions to be
attached to payments from which other recipients should be exempted.[122]
Dr Saunders cites a British survey that found 89 per cent
of respondents were in favour of requiring ‘people addicted to drugs such as
heroin and crack cocaine to declare their problem and seek treatment if they are
to continue receiving benefits’.[123]
Drug and
alcohol groups
National
Drug and Alcohol Research Centre
The National Drug and Alcohol Research Centre (NDARC)
argues that the drug related measures in the Bill (Schedules 12, 13 and 14) are
‘ill-placed, ineffective and damaging’ and:
There is no evidence that any of these measures will directly
achieve outcomes associated with reductions in alcohol or other drug use or
harms, and indeed have the potential to create greater levels of harm,
including increased stigma, marginalisation and poverty.[124]
NDARC argue that drug testing ‘will not be able to
distinguish between those who have clinically significant drug problems and
those people who use drugs recreationally and do not require treatment services’.
They argue that this will contribute to the stigmatisation of people with
substance dependencies.[125]
The NDARC submission warns that some drug users may switch
from better known drugs to lesser known (and potentially more dangerous) drugs
in an effort to avoid being caught by drug tests:
Testing technology cannot keep up with the number of new
drugs on the market. So, if Schedule 12 goes ahead, and some welfare recipients
pre-empt the drug tests by switching to lesser known psychoactive substances,
it is probable that greater harms will result.[126]
The submission also expresses concern about the reliance
of ‘contracted medical professionals’ who may not have adequate clinical
expertise to make recommendations about treatment.[127]
NDARC notes that while treatment is highly cost effective
there are not enough treatment opportunities to meet the current level of need
and that there is a lack of evidence about the effectiveness of compulsory drug
treatment.[128]
Queensland
Mental Health and Drug Advisory Council
At a meeting on 16 June 2017 The Queensland Mental Health
and Drug Advisory Council:
... expressed concern over the potential for greater
stigmatisation of people living with problematic alcohol and other drug use,
and the lack of clarity about how the referrals to treatment and support will
be managed.[129]
Australian
National Council on Drugs (ANCD)
The Australian National Council on Drugs (ANCD) has not
commented on the drug testing measure in the 2017 Budget (ANCD was defunded in
2014), however, it did address the issue of drug testing of welfare
beneficiaries in a 2013 position paper. The ANCD argued:
There is no evidence that drug testing welfare beneficiaries
will have any positive effects for those individuals or for society, and some
evidence indicating such a practice could have high social and economic costs.
In addition, there would be serious ethical and legal problems in implementing
such a program in Australia. Drug testing of welfare beneficiaries ought not be
considered.[130]
The paper draws on international research and experience
and concludes: ‘The small amount of (direct and indirect) evidence available
seems to indicate that it is more likely to increase harms and costs, both to
welfare beneficiaries and the general public, than it is to achieve its stated
aims’.
Victorian
Alcohol and Drug Association (VAADA)
The Victorian Alcohol and Drug Association (VAADA) has
expressed concerns about the drug testing measure:
This proposal does not have an evidence base and is likely to
engender greater harm to the community.
These types of ill-considered measures, while popular among a
number of cohorts, displace a highly complex drug using market and contributes
to increasing stigmatisation toward individuals who consume illicit substances
specifically as well as welfare recipients generally.
Media reports on this policy indicate that individuals who
[provide two] positive drug tests over a 25 day period will be corralled into
the already overburdened alcohol and other drug treatment.[131]
Sharon O’Reilly, acting executive officer of VAADA says
that the alcohol and other drugs treatment sector is already overburdened. O’Reilly
warns that the trial:
... may generate a shift in consumption patterns among cohorts
who consume illicit substances, to consuming substances which cannot be
detected through standard drug testing means, such as new and emerging
psychoactive substances or shifting onto various prescription drugs. This will
likely create unknown harms and further complexities for our treatment services
and emergency departments.[132]
She also suggests that some people experiencing dependency
may avoid seeking engaging with treatment services so that they are not
penalised by Centrelink.[133]
Western
Australian Network of Alcohol and other Drug Agencies (WANADA)
WANADA
has expressed concerns about the drug testing and other welfare reform
measures:
Service Demand. Alcohol and other drug treatment
services across the nation are not currently resourced to meet the existing
demand. In Western Australia, services must effectively more than double in the
next few years to match community need. The announced reforms, while
recognising treatment as a legitimate step toward employment, have failed to
recognise or address the increased resourcing required to meet any increase in
service demand pressure due to this reform.
Consultation. There has been no prior consultation
with the alcohol and other drug service sector to inform the development of
these reforms. As a result, these reforms do not take into account: the
complexity of addressing alcohol and other drug use issues; the readiness of
the sector to respond to the welfare reform changes by July 2017; and the
existing capacity of services to meet demand.
Service and Welfare complexities. It is currently not
clear how some residents will cover their contribution to rehabilitation if
they’re found to be ineligible for Youth Allowance or Newstart payments, or if
their allowances are suspended. There is also no clarity on the degree to which
treatment will go towards meeting ‘mutual obligations’. All these factors have
the potential to impact on the provision of services.
Clarity. There is currently insufficient information
publically available to ascertain the full impact on the alcohol and other drug
service sector.
Stigma and Discrimination. The reforms have the
potential to further stigmatise those with alcohol and substance use concerns
and do not effectively reflect the complex social, health and personal issues
that contribute to substance use. If implemented, the largely punitive nature of
these reforms have the potential to further discincentivise [sic] people from
acknowledging they have an alcohol or other drug issue and seeking help.
Penington
Institute
In a post-budget media release, the Penington Institute
argued that linking income support eligibility to drug testing was likely to
result in an increase in crime and homelessness. Chief Executive Officer John
Ryan said:
In Australia there is a real lack of funding for drug
treatment services – including medically supported drug treatment. The
Government would have been better off making stronger investments there rather
than attacking the vulnerable.[134]
Alex Wodak
and GetUp
President of the Australian Drug Law Reform Foundation,
Alex Wodak argues that random drug testing is ‘a crude and problematic way of
monitoring drug use’. He notes that it is ‘more likely to identify use of
longer acting drugs (such as cannabis) and less likely to identify shorter
acting drugs (such as ice and ecstasy)’ and that it ‘fails to distinguish
between drug consumption in functional people and problematic drug use’.
Dr Wodak argues that drug testing is unlikely to change
behaviour or help income support recipients find work. He notes:
The drug treatment system in Australia is overloaded and
underfunded. Unless that crisis is addressed, these people will go to the back
of an already long queue.[135]
Dr Wodak has joined with activist organisation GetUp to
launch a campaign against the proposed drug testing regime.[136]
Welfare
sector
Brotherhood
of St Laurence
Brotherhood of St Laurence Executive Director, Tony
Nicholson, questioned the rationale for the drug testing measure:
Mr Nicholson said he was ...
puzzled by the rationale for the proposed trial of American-style random drug
testing for new welfare recipients, saying that in his experience any drug use
was readily identified and dealt with appropriately as part of the task of
preparing people for work. On the other hand, incorporating drug and alcohol
rehabilitation programs into job plans as a valid step towards employment was
welcome, he said.[137]
Australian
Council of Social Service (ACOSS)
ACOSS opposes the measure:
... the Budget continues to
demonise people with a range of new welfare crackdown measures. No expert in
drug and alcohol addiction has supported the random drug testing of social
security recipients. Trials elsewhere have failed to achieve any positive
results. ACOSS strongly opposes this measure.[138]
In their Federal Budget Snapshop ACOSS states:
It is unclear what these measures hope to achieve. They are
highly unlikely to address people’s addictions if they have them, and will lead
to more people living in poverty. The drug testing trial will likely be
expensive. New Zealand spent $1 million on a drug testing program and of the
8,001 income support recipients tested, just 22 tested positive for illicit
drugs (July 2014).[139]
National
Social Security Rights Network
The
National Social Security Rights Network opposes the measure:
... in our view, this is a radical and unacceptable expansion
of conditionality in the social security system. Job seekers have always been
required to look for and accept suitable work or undertake activities to
address employment barriers. This measure goes far beyond that. It requires job
seekers to agree to random drug testing, a significant intrusion on privacy, as
a condition of access to income support. It erodes the core purpose of our
social security system, which is to provide a basic safety net for people in
need.
The measure has the beneficial objective of seeking to
connect people with substance abuse issues with appropriate treatment and
engage them with employment services to address barriers to work. However,
substance abuse is a complex individual and social problem. Many of our clients
with substance abuse issues also have connected histories of trauma, abuse,
family violence or mental health problems. We are very concerned that
compelling people to submit to testing and, in some cases, undergo treatment
may have unintended consequences which undermine the measure’s objectives.
If recipients avoid or refuse testing they may lose access to
income support. Rather than engaging recipients as intended, this would
disconnect vulnerable people from the social security system. The burden may
instead fall on their families, who may already be struggling to help them deal
with addiction, and communities.
Making a treatment plan part of their Job Plan exposes
recipients to the risk of financial penalties for failing to meet their mutual
obligation requirements. This could affect people who are genuinely trying to
address substance abuse issues but struggle or relapse. We expect policy
settings will seek to accommodate this reality, but they will be difficult to
draft and even more so to administer as decision-makers will struggle to
distinguish genuine attempts at compliance.
The administrative cost of this measure is unknown, given the
commercial-in-confidence cost of the third party drug testing service. As with
all public policy initiatives, however, it is important to ask what could be
achieved by spending the money available for this measure in other ways. Social
security law is an inappropriate tool to deal with complex individual and
social problems like substance abuse. There are many alternative measures that
could be trialled, which seem more likely to work and do not undermine the
fundamental right to social security.[140]
Anglicare
Australia
In an interview with Pro Bono News, Anglicare Australia
executive director Kasy Chambers said:
“Between drug testing, the demerit point proposal, and the
leaked ‘welfare hotspot’ list, what we have seen in recent weeks is a concerted
campaign to demonise people accessing the social safety net,” Chambers said.
“Anglicare’s Jobs Availability Snapshot shows that people are
already trying their hardest to compete for jobs that just aren’t there. We
should be helping them when they need it, instead of degrading them.
“There is no evidence that these tests work. This plan has
been rejected in Britain, rejected in Canada, and it ought to be rejected
here.”[141]
Catholic
Social Services Australia (CSSA)
Catholic Social Services Australia (CSSA) opposes the drug
testing trial. CSSA’s CEO, Frank Brennan, said:
I am very sorry to see the government announcing ‘a two-year
trial of random drug testing new welfare recipients across three locations’.
This is arbitrary and capricious. If you’re going to drug test anyone, it
should be for good cause, and with well-founded suspicion, and not because a
citizen just happens to be in need of welfare assistance and just happens to be
living in one of three locations in this vast land Australia.[142]
UnitingCare
Australia
UnitingCare Australia opposes the drug testing trial:
We believe this will unfairly vilify and humiliate unemployed
people without assisting them into work. We have taken up this issue through
the Senate Estimates process.
Our research into overseas experience shows that drug testing
has little impact on drug dependence or helping people into work.
We also question how the Government will create the capacity
for the increased service demanded by those forced into treatment. We believe
that instead of this punitive measure, the government should focus on
constructive support for people with drug and alcohol issues.[143]
Melbourne
City Mission
Melbourne City Mission has expressed concern about the
measure:
That JobSeeker recipients who
test positive will be “subjected to further tests and possible referral for
treatment” is of great concern. We know that coercive measures are more likely
to push people further to the fringes, increasing pressure on crisis services
such as emergency relief and crisis accommodation, rather than effect long-term
behaviour change. The 2017-18 budget papers also reference a “denying welfare
for a disability caused solely by their own substance abuse”. These welfare
reform measures ignore a strong body of evidence around underlying causes
(including mental-health reasons) for drug use and abuse.[144]
Good
Shepherd Australia New Zealand
Good Shepherd is a Catholic charity founded by the Good
Shepherd Sisters with a focus on women and girls. Good Shepherd opposes the
measure:
Introducing drug testing for welfare recipients comes
dangerously close to criminalising poverty. It makes basic human rights
conditional on not only job-seeking requirements, but on the absence of
addiction. This demonises people who are already struggling with health issues
and reinforces the worst kind of ignorance and prejudice. Furthermore,
drug-testing welfare compliance regimes trialled elsewhere have proved an
expensive failure at getting people into work and in supporting people to
recover from addictions. In fact, evidence shows it makes finding a job more
difficult.[145]
Samaritans
Samaritans is an Anglican charity operating in Newcastle
and the Hunter Valley. Samaritans opposes the measure:
There is no value in playing the blame game for people who
are struggling to overcome addiction. We see that there is no benefit in this
solution; it is simply taking money off those who already are struggling.
There needs to be resources and funding attached to
Centrelink payments for people to attend Alcohol and Other Drug programs,
rather than taking away support payments with no recourse. These people need to
be supported in overcoming their addiction, rather than being put in a
situation of increased financial stress.
Drug addiction and no money could very well result a rise in
the crime rate, suicide rate and the number of children not attending school or
attending without food. This is a huge problem for society- and a costly one at
that.
It’s costly because the welfare sector and providers such as
Samaritans will have to pick up the pieces when people are taken off their
Centrelink. People we support will lose their housing which will increase the
levels of homelessness. They will not be able to get to appointments including
medical or therapy programs because they will have no money on their Opal
Cards. They will be hungry and unable to feed children, which will result in
increased demand in our Emergency Relief centres.
Drug replacement therapy costs between $50-70 per week if the
person is attending a pharmacy outside of the clinic—this is a necessary
expense for someone trying to overcome a drug addiction and something which
will be completely unaffordable if Centrelink payments are taken away. If a
person overcoming a drug addiction does not get this medication, they will
become really unwell and research and experience shows that they will return to
using illicit drugs to suppress the addiction.[146]
Professional
bodies
Australian
Medical Association
The Australian Medical Association (AMA) expressed a
number of concerns about the drug related measures in the Bill. The AMA
submission stresses that substance dependence should be seen as a serious
health problem and suggests that it is inappropriate to approach the problem
from a moral standpoint.[147]
The AMA submission stressed the importance of
consultation, recommending thorough consultation and refinement of the Bill ‘In
order to minimise the risk of unintended consequences’. The AMA noted that they
had not been directly consulted.[148]
The submission suggested that the trial would lead to an
increased demand for treatment and noted that demand for treatment currently
exceeds supply. The AMA expressed concern that the trial could divert treatment
opportunities away from people who are actively seeking them and towards
‘one-off or occasional’ users who seek treatment in order to remain on income
support.[149]
The submission also expressed concern about the compulsory
nature of treatment noting that the ‘efficacy of mandatory drug treatment in
the medium and longer term has not yet been established’.[150]
The AMA is also concerned that the measures in Schedules
13 and 14 ‘will, in effect, dismiss a treating medical practitioner’s diagnosis
and advice’. In relation to drug testing, the submission notes that recipients
who test positive a second time will be referred to a medical professional and
argues:
The term ‘medical professional’ is ambiguous. The Government
must confirm that this work will be undertaken by medical practitioners, given
their expertise in diagnosis and referral for treatment.[151]
The submission also warns that drug testing could lead to
an increase in criminal activity as income support recipients placed on income
management attempt to obtain money for drugs. The AMA suggests that this could
lead to increased incarceration.[152]
Royal
Australasian College of Physicians
The Royal Australasian College of Physicians (RACP) argues
that compulsory drug treatment is likely to be ineffective:
“Research and experience has shown that drug testing has a
poor record in modifying drug use. We know that forcing addicts into treatment
is an ineffective way of combating illicit drug use,” explained Dr Yelland.
“Addiction is a chronic relapsing and remitting health issue
and Governments across Australia must think of it as a chronic healthcare issue
moving forward,” said Dr Yelland.
Dr Yelland said the RACP believes the solution to reducing
the number of Australians suffering from addiction lies in adequately funding
treatment and support services.
“We agree that more people suffering with addiction need to
be referred for drug and alcohol treatment. However these plans for drug
testing of welfare recipients are likely to be ineffective, expensive and could
further negatively impact people’s lives.
“Importantly, any approach to this issue must also include
proper investment in treatment and recovery services, otherwise people looking
for help will just end up at the back of an already long queue,” she added.[153]
Victorian
Government
The Victorian Government is opposed to the trials. In an
interview for the ABC’s 7.30, Martin Foley (Minister for Mental Health)
described the measure as ‘cheap, populist nonsense’:
MARTIN FOLEY, VIC MINISTER FOR
MENTAL HEALTH: It simply won't work and it is cheap, populist nonsense,
designed to create a smokescreen as to what really
drives disadvantage.
JULIA HOLMAN: The Victorian Government
has revealed to 7:30 that it won't cooperate with the drug-testing trial.
MARTIN FOLEY: We've made it clear to
the Government at two ministerial councils that we're not interested in being
part of this scam, because all it will do is create even more demand for
services that already stretched, that are already under pressure from
Commonwealth cuts, and we won't have bar of it.
But if the Commonwealth Government
wants to go out and demonise people and pretend that they're doing good work in
this space, let them do it somewhere else
because all it will do in Melbourne, and Victoria, is drive people more into
disadvantage.[154]
[1]. Details
of the terms of reference, submissions to the Senate Community Affairs
Legislation Committee, and the final report (when published) are available at
the inquiry homepage.
[2]. The
Statements of Compatibility with Human Rights can be found at page 136 of the
Explanatory Memorandum to the Bill.
[3]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[4]. E
Wincup, ‘Thoroughfares, crossroads and cul-de-sacs: drug testing of welfare
recipients’, International journal on drug policy, 25(5), 2014; P Berger,
‘Science
misapplied: mandatory addiction screening and treatment for welfare recipients
in Ontario’, Canadian Medical Association Journal, 165(4), 21 August
2001.
[5]. Office
of the Assistant Secretary for Planning and Evaluation (US), Drug
testing welfare recipients: recent proposals and continuing controversies,
US Department of Health and Human Services, October 2011. Ministry of Social
Development (NZ), ‘Drug
testing for beneficiaries with work obligations’, Work and Income New
Zealand.
[6]. M
McCarty, G Falk, R Aussenberg, D Carpenter, Drug testing and
crime-related restrictions in TANF, SNAP, and Housing Assistance,
Congressional Research Service, 28 November 2016, p. 28.
[7]. Ibid.,
p. 1.
[8]. R
Rector and K Bradley, ‘Reforming
the food stamp program’, Backgrounder, 2708, 25 July 2012.
[9]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, p. 64.
[10]. Liberal
Party of Australia and the Nationals, Tough
on drugs, Coalition policy document, Election 2007, p. 2.
[11]. J
Howard (Prime Minister), Joint
press conference with the Treasurer, the Hon Peter Costello,
transcript, Sydney, 18 November 2007.
[12]. G
Christensen (federal member for Dawson), No
drug test, no dole, media release, 31 May 2012.
[13]. B
Packham, ‘Drug
test the unemployed before dole, says Coalition MP George Christiansen’, The
Australian, (online edition), 31 May 2012.
[14]. Australian
National Council on Drugs (ANCD), Drug
testing, ANCD position paper, August 2013, p. 2. The ANCD was formed to
provide independent advice to government on national drug and alcohol issues.
[15]. S
Maiden, ‘Drug
testing for the dole’, Sunday Mail, 1 June 2014, p. 3.
[16]. C
Uhlmann, ‘Interview
with Kevin Andrews’, AM, Australian Broadcasting Corporation (ABC),
2 June 2014.
[17]. G
Brandis, ‘Answer
to Question without Notice: Illicit Drugs’, [Questioner: J Lambie], Senate,
Debates, 24 November 2015.
[18]. Explanatory
Notes, Welfare Reform Act 2009 (UK), Schedule 3.
[19]. L
McKinstry, ‘Welfare
reform under a Labour government? it just won't happen’, Express, (online
edition), 21 July 2008; Social Security Advisory Committee (UK), No
one written off: reforming welfare to reward responsibility: the response of
the Social Security Advisory Committee, Parliament of the United
Kingdom, London, November 2011.
[20]. Explanatory
Notes, Welfare Reform Act 2012 (UK), part 2, section 60.
[21]. Department
for Work and Pensions (DWP), No
one written off: reforming welfare to reward responsibility: public
consultation, Cm 7363, The Stationary Office, London, July 2008,
p. 47.
[22]. Ibid.,
p. 49.
[23]. Social
Security Advisory Committee (UK), No
one written off: reforming welfare to reward responsibility: the response of
the Social Security Advisory Committee, op. cit.
[24]. Drugscope,
DrugScope
responds to publication of welfare reform green paper, media release,
21 July 2008.
[25]. DWP,
Raising
expectations and increasing support: reforming welfare for the future, Cm
7506, December 2008, p. 118.
[26]. Ibid.,
p. 118.
[27]. Ibid.,
p. 119.
[28]. Wincup,
‘Thoroughfares, crossroads and cul-de-sacs: drug testing of welfare recipients’,
op. cit.
[29]. Royal
College of Psychiatrists, Written evidence submitted to the Joint Committee on
Human Rights, in: Joint Committee on Human Rights (UK), Legislative scrutiny:
welfare reform bill; apprenticeships, skills, children and learning bill;
health bill, Fourteenth report of session 2008–09, The Stationary
Office, London, 27 April 2009.
[30]. Wincup,
op. cit.
[31]. U
Kilkelly, The right to respect for
private and family life: a guide to the implementation of Article 8 of the
European Convention on Human Rights, Directorate General of Human
Rights Council of Europe, France, August 2003.
[32]. Joint
Committee on Human Rights (UK), Legislative scrutiny:
welfare reform bill; apprenticeships, skills, children and learning bill;
health bill, op. cit., p. 18–19.
[33]. R
Tilt (Chairman, Social Security Advisory Committee), Letter
to I Duncan Smith (Secretary of State for Work and Pensions), Report of the
Social Security Advisory Committee made under section 174(2) of the Social
Security Administration Act 1992 on the Social Security (Welfare Reform Drugs
Recovery Pilot Scheme) Regulations 2010, 19 May 2010, p. 6.
[34]. M
Miller, Radical
rethink on getting drug and alcohol users back to work, media release,
17 June 2010.
[35]. Explanatory
Notes, Welfare Reform Act 2012 (UK), part 2, section 60.
[36]. The
Centre for Social Justice is a think tank closely associated with the
Conservative Party.
[37]. Centre
for Social Justice, Ambitious
for recovery: tackling drug and alcohol addiction in the UK, Centre for
Social Justice, London, August 2014, p. 26.
[38]. Ibid.,
p. 75.
[39]. Quoted
in: H Phibbs, ‘Those
on sickness benefit should accept treatment’, Conservative Home, 14
February 2015.
[40]. Ibid.
[41]. C
Black, An
independent review into the impact on employment outcomes of drug or alcohol
addiction, and obesity, Cm 9336, Department for Works and Pensions,
London, December 2016, p. 14.
[42]. M
Rowland, TV
interview with Michael Rowland: ABC News 24 Breakfast, ABC News 24,
transcript, ABC, 2 June 2014.
[43]. R
Siewert, Labor
sides with Government as motion to abandon drug testing income support recipients
voted down, media release, 14 June 2017.
[44]. M
Rowland and V Trioli, ABC
news breakfast, television interview, ABC News 24, ABC, 10 May
2017.
[45]. J
Lambie, ‘Answer
to Question without notice: take note of answers: illicit drugs’, Senate, Debates,
24 November 2015, p. 8769.
[46]. Rowland
and Trioli, ABC
news breakfast, op. cit.
[47]. R
Lewis and A Burrell, ‘Senate
wall traps $14bn in reforms’, The Australian, 22 May 2017, p. 1.
[48]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 151.
[49]. Ibid.,
p. 62.
[50]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, pp. 95–96.
[51]. The
number of persons subject to drug testing is limited to 5,000 by the operation
of proposed subsection 63(4A) of the SSA Act (inserted by item
16 of Part 1 in Schedule 12 of the Bill).
[52]. Department
of Social Services (DSS), ‘Welfare
reform’, 2017 Budget fact sheet, DSS, 2017, p. 3.
[53]. DSS,
‘Drug
testing trial’, DSS website, 27 August 2017.
[54]. S
Ryan, ‘Answer
to a Question without notice: additional answers’, [Questioner: R Siewert],
Senate, Debates, 20 June 2017, p. 4339.
[55]. C
Dawson (Chief Executive Officer, Australian Criminal Intelligence Commission), Evidence
to the Parliamentary Joint Committee on Law Enforcement, Australian Crime
Commission annual report 2015–16, 14 June 2017.
[56]. Item
1 of Part 1 in Schedule 12 to the Bill inserts the definition of testable
drug into subsection 23(1) of the Social Security Act being:
methamphetamine; methylenedioxy-methamphetamine; tetrahydrocannabinol; opioids
or another substance prescribed by the drug test rules for the purposes of the
definition.
[57]. SSA
Act, proposed subsection 37(7A), inserted by item 12 in Part
1 of Schedule 12 to the Bill.
[58]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 155.
[59]. J
O’Brien, ‘Live
cross to a press conference with Christian Porter, federal Minister for Social
Services, Alan Tudge, Minister for Human Services, and Michaelia Cash, federal
Minister For Employment’, Mornings, ABC News, transcript, 11 May
2017. Data61 is a data
innovation group within the Commonwealth Scientific and Industrial Research
Organisation (CSIRO).
[60]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 62.
[61]. Ibid.,
p. 63.
[62]. Ibid.,
p. 63.
[63]. O’Brien,
‘Live
cross to a press conference with Christian Porter, federal Minister for Social
Services, Alan Tudge, Minister for Human Services, and Michaelia Cash, federal
Minister For Employment’, op. cit.
[64]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 63.
[65]. Ibid.
[66]. SS
Act, proposed subsection 1206XA(6).
[67]. Ibid.,
proposed section 1206XC.
[68]. Ibid.,
proposed section 1206XD.
[69]. Item
17 in Part 1 of Schedule 12 to the Bill inserts proposed subsection
64(1AA) into the SSA Act to provide that a notice to undertake drug
testing is not unreasonable.
[70]. Section
80 of the SSA Act provides that if a payment is not payable to a person,
the Secretary is to determine that the payment is to be cancelled or suspended.
[71]. For
Youth Allowance—proposed sections 549EA and 549EB inserted by item 6;
for Newstart Allowance—proposed sections 623C and 623D inserted by item
8.
[72]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 150.
[73]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, op. cit., pp. 95–96.
[74]. Black,
An
independent review into the impact on employment outcomes of drug or alcohol
addiction, and obesity, op. cit.
[75]. C
Porter (Minister for Social Services), M Cash (Minister for Employment) and A
Tudge (Minister for Social Services), Welfare
reform bill focuses on supporting people into work, media release, 22
June 2017.
[76]. Black,
An
independent review into the impact on employment outcomes of drug or alcohol
addiction, and obesity, op. cit., p. 9.
[77]. National
Ice Taskforce, Final
report of the national ice taskforce, Department of the Prime Minister
and Cabinet (PM&C), Canberra, 2015, p. 106.
[78]. P
Whiteford, ‘Budget
2017: welfare changes stigmatise recipients and are sitting on shaky ground’,
The Conversation, 11 May 2017.
[79]. D
Speers, ‘Budget
2017 with David Speers’, SKY News, 9 May 2017.
[80]. JF
Atlanta, ‘Welfare
and drug testing: signalling as policy’, The Economist, 2 September
2011.
[81]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, p. 64.
[82]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 155.
[83]. Australian
Institute of Health and Welfare (AIHW), Evaluation
of income management in the Northern Territory, Occasional paper, 34,
Department of Families, Housing, Community Services and Indigenous Affairs,
Canberra, 2010, p. 16.
[84]. O’Brien,
‘Live
cross to a press conference with Christian Porter, federal Minister for Social
Services, Alan Tudge, Minister for Human Services, and Michaelia Cash, federal
Minister For Employment’, op. cit.
[85]. For
example: M White, ‘Back
to basics’, Today Tonight, Prime, 9 July 2012.
[86]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, pp. 140–141.
[87]. DSS,
Department of Employment, and Department of Human Services, Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the Social
Services Legislation Amendment (Welfare Reform) Bill 2017, 4 August 2017, p.
21.
[88]. DSS,
‘Supporting
people at risk measure of income management’, DSS website, 10 December
2013.
[89]. SSA
Act, proposed section 64A.
[90]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[91]. See
Australian Government, Budget measures: budget paper no. 2: 2017–18, 2017, pp.
91–91; Porter, Cash and Tudge, A fairer welfare system that supports more people into work, op. cit.; and M Cash (Minister for Employment), Helping more Australians into jobs,
media release, 9 May 2017.
[92]. Newstart Allowance, Youth Allowance (other),
Special Benefit and Parenting Payment recipients must meet
activity test or participation requirements in order to qualify, and remain
qualified, for payment. Generally speaking, these requirements demand that job
seekers are actively looking for work, accepting offers of suitable work, and
improving their chances of gaining employment.
[93]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 159.
[94]. The
matters that must be taken into account are detailed in Social Security
(Reasonable Excuse—Participation Payment Obligations) (DEEWR) Determination
2009 (No. 1).
[95]. For
Disability Support Pension the exemption are in subsections 94C(1) and 94F(1);
Parenting Payment—subsections 502F(1) and 502H(1); Youth Allowance
(other)—subsections 542A(1) and 542H(1); Newstart Allowance—subsections 603A(1)
and 603C(1); Special Benefit—subsections 731E(1) and 731K(1).
[96]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 81; PM&C, ‘The
Community Development Programme (CDP)’, PM&C website.
[97]. Ibid.,
p. 162.
[98]. Ibid.
[99]. Ibid.
[100]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 85.
[101]. Ibid.,
p. 63.
[102]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[103]. See
Australian Government, Budget measures: budget paper no. 2: 2017–18, 2017, pp.
91–91; Porter, Cash and Tudge, A
fairer welfare system that supports more people into work,
op. cit.; and Cash, Helping more Australians into jobs, op.
cit.
[104]. SSA
Act, section 42C.
[105]. Ibid.,
section 42E. For an explanation of connection and re-connection failures see:
DSS, ‘3.1.13.30:
participation payment suspensions, connection failures, non-attendance failures,
reconnection failures and penalties’, Guide to social security law, version
1.235, DSS website, 14 August 2017.
[106]. Ibid.,
section 42H.
[107]. Ibid.,
section 42N.
[108]. Ibid.,
section 42SC.
[109]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 86.
[110]. Ibid.,
p. 85.
[111]. D
Werb, A Kamarulzaman, M Meacham, C Rafful, B Fischer, S Strathdee and E Wood, ‘The effectiveness
of compulsory drug treatment: a systematic review’, International
Journal of Drug Policy, 28, February 2016, pp. 1–9; S Klag, F O’Callaghan
and P Creed, ‘The
use of legal coercion in the treatment of substance abusers: an overview and
critical analysis of thirty years of research’, Substance Use and Misuse,
40(12), 2005, pp. 1777–95; A Stevens, D Berto, V Kerschl, K Oeuvray, M van
Ooyen, E Steffan et al, ‘Quasi-compulsory
treatment of drug dependent offenders: an international literature review’,
Substance Use and Misuse, 40(3), 2005, pp. 269–283; T Wild, ‘Social control and coercion
in addiction treatment’, Addiction, 101, 2006, pp. 40–49; M
Broadstock, D Brinson and A Weston, The
effectiveness of compulsory, residential treatment of chronic alcohol or drug
addiction in non-offenders: a systematic review of the literature, Health
Services Assessment Collaboration (HSAC), University of Canterbury, March 2008;
KA Urbanoski, ‘Coerced
addiction treatment: client perspectives and the implications of their neglect’,
Harm Reduction Journal, 7(13), 2010.
[112]. A
Ritter, L Berends, J Chalmers, P Hull, K Lancaster and M Gomez, New
horizons: the review of alcohol and other drug treatment services in Australia:
final report, Drug Policy Modelling Program, National Drug and Alcohol
Research Centre (NDARC), UNSW, Sydney, 2014, p. 164.
[113]. The
criteria for fully meeting demand was based on a pre-existing decision-support
tool for systems planning—the Drug and Alcohol Service Planning Model for
Australia (DA-CCP). This was determined to be the equivalent of only treating
35 per cent of all people who meet diagnostic criteria. It is important to
note, here, a distinction between unmet need and unmet demand for drug and
alcohol treatment services. In the DA-CCP, need is defined as the population
prevalence of alcohol and other drug disorders, and demand as a proportion of
that total prevalence, based on expert judgement. The expert judgement is an
assessment of the proportion of people who seek treatment but are unable to
access it. A Ritter, J Chalmers and M Sunderland, Planning for drug treatment
services: estimating population need and demand for treatment, Drug Policy
Modelling Program, NDARC, UNSW.
[114]. As
a part of the abovementioned review of the drug and alcohol prevention and
treatment services sector, the NDARC researchers sought to clarify Australian
drug and alcohol treatment funding. They estimated total spending on alcohol
and other drug treatment in Australia by all jurisdictions’ health departments
in 2012–13 at $1.26 billion. The states and territories contributed the largest
share of total funding (49 per cent) with the Commonwealth providing
31 per cent. A majority of the overall funding went towards alcohol and other
drug treatment services (39.6 per cent), followed by public hospitals (15 per
cent), private hospitals (11 per cent) and Commonwealth alcohol and other drug
treatment grants (10 per cent). Ritter et al, New
horizons, op. cit., pp. 66–67.
[115]. D
Henkel, ‘Unemployment and
substance use: a review of the literature (1990–2010)’, Current Drug
Abuse Reviews, 4(1), 2011.
[116]. AIHW,
National
drug strategy household survey: detailed report: 2013, AIHW, Canberra, 2014,
p. 91.
[117]. Henkel,
op. cit., pp. 4–23.
[118]. S
Macdonald, C Bois, B Brands, D Dempsey, P Erickson, D Marsh, S Meredith, M
Shain, W Skinner and A Chiu, ‘Drug
testing and mandatory treatment for welfare recipients’, International
Journal of Drug Policy, 2001, p. 4; L Metsch and H Pollack, ‘Welfare reform
and substance abuse’, The Milbank Quarterly, 83(1), 2005.
[119]. Macdonald
et al, op. cit., p. 4–5.
[120]. Ibid.,
p. 5.
[121]. Metsch
and Pollack, op. cit., p. 71.
[122]. P
Saunders, Re-moralising the
welfare state, CIS occasional paper, The Centre for Independent Studies,
Sydney, 2013, p. 23.
[123]. YouGov,
YouGov
/ Daily Telegraph survey results, fieldwork 23–25 July 2008, YouGov,
London, 2008.
[124]. NDARC,
Submission
to Senate Community Affairs Legislation Committee, Inquiry into the Social
Services Legislation Amendment (Welfare Reform) Bill 2017, 26 July 2017.
[125]. Ibid.
[126]. Ibid.
[127]. Ibid.
[128]. Ibid.
[129]. Queensland
Mental Health and Drug Advisory Council (QMHDAC), Communique,
QMHDAC Meeting, Brisbane, 16 June 2017.
[130]. ANCD,
ANCD
position paper: drug testing, op. cit.
[131]. Victorian
Alcohol and Drug Association, Drug
testing welfare recipients a false positive, media release, 10 May
2017.
[132]. Ibid.
[133]. Ibid.
[134]. Penington
Institute, Increase
in crime likely with drug testing budget announcement, media release, 9
May 2017.
[135]. A
Wodak, Federal
budget: drug testing welfare recipients is ineffective policy’, Australia21
website, 2017.
[136]. GetUP,
Govt ignoring experts: Dr Alex Wodak AM launches campaign against mandatory
drug testing, media release, 1 August 2017.
[137]. Brotherhood
of St Laurence, Mixed
messages in new Turnbull budget, media release, 9 May 2017.
[138]. Australian
Council of Social Service (ACOSS), Federal
budget snapshot: social security, ACOSS, Sydney, May 2017, p. 3.
[139]. ACOSS,
Federal
budget snapshot: social security measures, ACOSS, Sydney, May 2017.
[140]. National
Social Security Rights Network (NSSRN), Budget
2017: trial of compulsory random drug testing for job seekers, NSSRN,
Sydney, 2017.
[141]. W
Williams, ‘Victoria
applauded for refusing plan to drug test welfare recipients’, Pro Bono
Australia website, 15 June 2017.
[142]. Fr
F Brennan, 2017–18
budget overview, Catholic Social Services Australia, Canberra, 9 May
2017.
[143]. UnitingCare
Australia, ‘Connecting:
a fortnightly update from UnitingCare Australia’, UnitingCare Australia
website, 8 June 2017.
[144]. Melbourne
City Mission, ‘Federal
budget 2017’, Melbourne City Mission website, 11 May 2017.
[145]. Good
Shepherd Australia New Zealand, ‘Federal
budget’s support of universal services undermined by divisive welfare approach’,
Good Shepherd Australia New Zealand website, 11 May 2017.
[146]. Samaritans,
‘Random
drug testing for Centrelink recipients’, Samaritans, blog, 16 May 2017.
[147]. Australian
Medical Association, Submission
to Senate Community Affairs Legislation Committee, Inquiry into the Social
Services Legislation Amendment (Welfare Reform) Bill 2017, 26 July 2017, p. 2.
[148]. Ibid.,
p. 3.
[149]. Ibid.,
p. 2.
[150]. Ibid.,
p. 3.
[151]. Ibid.,
p. 3.
[152]. Ibid.,
p. 2.
[153]. Royal
Australasian College of Physicians (RACP), RACP
urges Government to abandon welfare drug testing plans, media release, 31
May 2017.
[154]. J
Holman, ‘Victorian
government reject Commonwealth plan to drug test welfare recipients’, 7.30,
ABC, 13 June 2017.
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