Bills Digest No. 68, 2019–20
PDF Version [742KB]
Don Arthur
Social Policy Section
Paula Pyburne
Law and Bills Digest Section
9 January 2020
Contents
History of the Bill
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Concluding comments
Date introduced: 11
September 2019
House: House of
Representatives
Portfolio: Social
Services
Commencement: Sections
1-3 on Royal Assent; Part 1 of Schedule 1 on the first 1 January, 1 April, 1
July or 1 October occurring at least two months after Royal Assent; Part 2
of Schedule 1 on the later of 20 March 2020 or the date on which
the amendments in Part 1 of Schedule 1 commence.
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 January 2020.
History of
the Bill
This is the third time that the Government has introduced
legislation in the Parliament to establish a drug testing trial:
Purpose of
the Bill
The purpose of the Bill is to establish a drug testing
trial of 5,000 new recipients of Newstart Allowance (NA) and Youth Allowance
(other) (YA) in three discrete locations over two years.
Structure of
the Bill
The Bill comprises two Parts:
Background
Drug testing has been part of the international welfare
reform debate since the 1990s. Proposals for drug testing income support
recipients have been debated in Australia, Canada and the United Kingdom.[3]
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
of income support recipients by employers and training providers.[4]
According to a 2016 paper by the Congressional Research
Service, there is little evidence for 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 with these measures.[5]
Such policy 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.[6]
The drug
testing trial proposal
The Government, through the Bill, proposes trialling
mandatory drug testing for 5,000 new recipients of NA and YA (other) followed
by mandatory treatment for those considered likely to benefit from it. The
Government will conduct the trial in three separate sites:
- Canterbury-Bankstown
(New South Wales)
- Logan
(Queensland)
- Mandurah
(Western Australia).[7]
The Government plans to evaluate the trial. According to
the Department of Social Services’ (DSS) submission to the Senate inquiry into
the Bill, ‘the results of the evaluation will inform any decisions about the
trial or rolling out drug testing more broadly.’[8]
Officers of the Department argued in 2017 that there is no
evaluation evidence on the effectiveness of drug testing initiatives and the
purpose of the trial is to provide such evidence.[9]
What
problems does the trial address?
According to the Explanatory Memorandum, there are two
major problems with drug use by income support recipients. The Explanatory
Memorandum notes that substance abuse:
- is
a major barrier to social and economic participation and
- is
not consistent with community expectations around receiving taxpayer funded
welfare payments.[10]
DSS’ submission to the inquiry focuses on the first
problem. It argues that the trial will test new approaches to identifying job
seekers with substance use issues and assisting them to seek treatment.[11]
It does not mention community expectations.
Initial
testing
Recipients who test positive to an initial test for
illicit drugs will be placed on income management for 24 months.[12]
Income management is designed to prevent recipients from spending payments on
excluded goods such as alcohol, tobacco, pornography and gambling.[13]
Recipients will receive 20 per cent of their income support payments in cash
with the remaining 80 per cent income managed.[14]
Recipients who test positive in the first test will be subject
to random tests during the trial period, with the second test occurring within 25
working days after the first positive test.[15]
Those who test positive again will be referred to a medical professional for
assessment. If the medical professional recommends treatment, the treatment
will become part of the recipient’s Employment Pathway Plan. Those who fail to
meet the requirements set out in their Plan may have their income support
payment suspended or cancelled.[16]
How many
recipients will require treatment for substance abuse?
DSS estimates that around 425 recipients will test
positive to the first drug test and will be placed on income management. The
Department expects that a further 120 of these recipients will test positive in
the second test and be referred to a medical professional for assessment.[17]
A relatively small number of recipients will require
expensive forms of treatment such as residential rehabilitation, according to
Ministers. As the then Minister for Social Services in May 2017, Christian
Porter, noted:
... 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.[18]
As the then Minister for Human Services in September 2017,
Alan Tudge noted that only around 50 or 60 people would ‘require some sort of
residential rehabilitation or detox.’[19]
It is not clear what results DSS expects from treatment
services or what improvement in employment outcomes it expects for the
approximately 120 recipients who are referred to some kind of treatment.
Funding for
drug treatment
The Government plans to establish a $10 million Treatment
Fund to provide additional treatment support in the three trial sites.[20]
A number of submitters have argued that $10 million is not enough to meet
existing levels of demand in the trial sites.[21]
However, the Government is not planning to use the $10 million to meet existing
demand, instead, more than half of this funding is targeted exclusively to
meeting the needs of trial participants. According to DSS, there is:
... $6 million [of the $10 million], which is for individuals.
If a person needs a particular service in a particular area, and it's not
available from either a Commonwealth or a state-funded service, their case
manager would apply to the Department of Social Services for a bucket of
funding that could be used to meet the need of that individual person, whether
that be for residential rehabilitation or counselling.[22]
This underscores the point that the trial is not part of any
broader illicit drugs strategy. Instead it appears focused on meeting the
Government’s welfare reform objectives.
A major part
of the trial will be placing around 425 recipients on income management
According to the Department’s estimates, there will be up
to 305 recipients who are placed on income management but will not be referred
to treatment.[23]
According to DSS, the Government has chosen to use income
management rather than the cashless debit card ‘because it provides a more
individualised approach to welfare quarantining’.[24]
Objectives
of the proposal
Relevant Ministers and DSS have cited three objectives for
the drug testing trial. The most commonly cited objective is to identify income
support recipients who have a substance abuse problem that interferes with
their ability to prepare for and find work.
Assisting
recipients who are drug dependent into employment
According to DSS’s submission to the inquiry:
The drug testing trial is designed to identify job seekers
who may have ongoing drug dependency issues and may benefit from pursuing
treatment. The aim is to improve the capacity of job seekers with illicit drug
use issues to find employment, or participate in relevant education or
training, by assisting them to access appropriate treatment and overcome their
barriers to work.[25]
The Minister for Social Services, Anne Ruston, has
indicated that this is the trial’s major focus. According to a recent media
release:
Minister for Families and Social Services Anne Ruston said
job seekers struggling with substance abuse issues would benefit from the trial
as its primary focus was to help people access support services through a $10
million Treatment Fund.[26]
Deterring drug use
A second objective of the trial is to deter income support
recipients from using illicit drugs so as to prevent them from developing a
drug problem that may later seriously interfere with their ability to find and
keep paid work.
In 2017 the then Minister for Human Services, Alan Tudge,
said: ‘My hope is that our trials will not just help with those who are
addicted, but encourage non-addicts to stop taking drugs.’[27]
The current Minister for Social Services has reinforced
this point saying:
We hope that the risk of being tested will encourage people
to think twice about taking drugs. For those who may be just meddling around
the edges of taking drugs, being put on the BasicsCard after one positive test
might give them a wake-up call to say to themselves, ‘this really isn’t a smart
thing to be doing’, and hopefully prevent them from heading off down the path
of drug addiction.[28]
This objective provides a rationale for placing recipients
on income management after the first positive drug test.
Maintaining
the integrity of, and public confidence in, the social security system
A third objective is 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’.[29]
This objective appears in the Statement of Compatibility
with Human Rights that forms part of the Explanatory Memorandum. It addresses
the problem of maintaining consistency with community expectations that is discussed
in the Explanatory Memorandum.[30]
However, the Minister for Social Services has stated that maintaining
public confidence in the system is not the main objective of the trial. She
explained the Government’s position in response to a question during a
September 2019 radio interview:
DAVID BEVAN: Is this being driven by a simple belief that
taxpayers don't want to fund drug taking?
MINISTER RUSTON: No, not at all. I mean, I think you're
right. I think taxpayers do have a view about spending the money that they pay
in their taxes to and having people use it and spend it on drugs and alcohol.
But that's not the purpose behind this. The main purpose behind this is that we
believe that if somebody has a substance abuse or a drug addiction they are
very, very likely not to be able to be ready to be able to take on a job. And
we want to make sure that we get anybody and everybody job ready, because the
most important thing we can do for the Australian community, the Australian
economy, and the individual is to make sure that people are ready to have a job
so we can get them into work.[31]
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.[32]
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’.[33]
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.[34]
However, Kevin Andrews, then Shadow Minister for Families, Housing and Human
Services, stated that this was not Coalition policy.[35]
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.[36]
The issue resurfaced in 2014 after the release of the Interim
Report of the Reference Group on Welfare Reform (the McClure Report).[37]
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.[38]
Then Minister for Social Services, Kevin Andrews, said that the Government was
unlikely to go ahead with implementing drug testing requirements, noting that
drug testing requirements largely involve state jurisdictions and
responsibilities.[39]
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’.[40]
Drug testing
overseas
Drug testing for income support recipients has been
introduced in a number of states in the United States, and in New Zealand.
However those jurisdictions use models that differ significantly from that
proposed for Australia.
As discussed below, there appears to be little evidence for
the effectiveness of these measures.
United
States
According to a 2017 report by the National Conference of
State Legislatures, at least 15 states have passed legislation for drug
screening or testing for people applying for or receiving public assistance.[41]
Critics of drug testing in the United States argue that
these screening and testing schemes are costly and ineffective. For example,
according to a report by journalists Bryce Covert and Josh Israel in ThinkProgress,
10 states spent $850,909 to find just 321 people who tested positive.[42]
According to the most recent data for the state of
Missouri, officials referred 258 people to drug testing in 2018 with four of
these returning a positive test.[43]
Perhaps the major reason US schemes produce such low
numbers of positive tests is that many schemes screen recipients and applicants
before testing them. Only those flagged by the screening tool are tested.[44]
In Missouri the screening question is:
How many times in the past year have you used an illegal drug
or used prescription medication for non-medical reasons?[45]
US schemes adopt this approach because of constitutional
protections against ‘unreasonable searches’ (the Fourth Amendment). Two states,
Florida and Michigan, created schemes using random drug testing and were
challenged in the courts. To avoid similar challenges, other states have
forgone random testing and adopted approaches where a drug test is only
administered where there is individualised suspicion of drug use.[46]
A 2016 report by the Congressional Research Service notes
that there is little evidence for the effectiveness of drug-related
restrictions in US welfare programs.[47]
Pre-employment
drug testing in New Zealand
Work and Income New Zealand does not test income support
recipients for drugs. However, recipients with work obligations cannot refuse
to apply for a job where the employer requires applicants to pass a drug test.
Recipients are also required to take a drug test if a training provider requires
it (for example, a course to get a heavy truck licence).[48]
According to the New Zealand Ministry of Social
Development:
The primary policy rationale was to prevent drug use being a
barrier to employment for beneficiaries, and to set the expectation that
recreational drug use is “not an acceptable excuse for avoiding available work”.
At the time, around 40% of vacancies advertised through Work and Income
required pre-employment drug tests, primarily for health and safety reasons.
Prior to the policy’s introduction, clients could opt out of applying for
suitable jobs that required a preemployment drug test, if they would not be
able to pass.
A graduated sanctions regime applies for failing to meet
these obligations without good and sufficient reason. Under this regime,
clients may have their benefit reduced, then suspended, then cancelled for 13
weeks for subsequent failures over a 12-month period. Clients with dependent
children face a maximum sanction of a 50% benefit reduction. A client must have
been given at least five working days to dispute or re-comply before any
sanction is imposed.[49]
Work and Income will not refer the person to a job that
requires a drug test if they are aware that a recipient is dependent on drugs,
undergoing or waiting for drug treatment or taking prescription medication that
could cause them to fail a drug test.[50]
Work and Income cannot require a recipient to undertake medical treatment as a
condition of receiving income support.[51]
When the New Zealand Government announced drug testing
requirements in 2012, the Prime Minister John Key said the Government had no
plans to drug test all beneficiaries and was not swayed by arguments that drug
users were spending income support payment on drugs. He said:
Some people would say people on benefits shouldn't smoke or
shouldn't drink. Everyone has their own views on those matters. For the most
part, other than very young people, we are leaving people to make their own
assessment but our expectations are clear—if you can work, you should work and
if the only reason you're not working is because you're failing a drug test
because of recreational drug use, we think that's unacceptable and the
Government is going to do something about that.[52]
According to the Ministry of Social Development, ‘There is
no research on the effects of New Zealand drug testing obligations and
sanctions.’[53]
Committee
consideration
Standing Committee
on Community Affairs
The Bill was referred to the Senate Standing Committee on
Community Affairs (the Community Affairs Committee) for inquiry and report by 10
October 2019.[54]
The majority report recommended that the Bill be passed.[55]
However, Australian Labor Party (Labor) Senators on the Community
Affairs Committee submitted a dissenting report, as did the Australian Greens
(Greens) Senators on the Committee. In both cases the recommendation was that
the Bill not be passed. The dissenting views of Labor and the Greens are
canvassed below.[56]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny of Bills Committee) did not comment directly on the Bill.[57]
Instead, it reiterated the comments it had previously made in relation to the 2018
Bill.[58]
The Scrutiny of Bills Committees concluded its examination of the 2018 Bill by
noting that it had significant concerns about private contractors making
referrals regarding persons to be subject to income management:
The committee notes that private contractors are not subject
to the same level of accountability and oversight that apply to members of the
Australian Public Service. The committee's scrutiny concerns are heightened by
the fact that it does not appear that the contractor's decision to make the
referral will be subject to any form of merits or judicial review, as only the
question of whether or not the notice was actually given appears to be
reviewable under the Administration Act.[59]
The Scrutiny of Bills Committee also had concerns regarding
the process whereby a person can challenge a positive drug test not being
contained in legislation.[60]
Policy
position of non-government parties/independents
Labor
The Labor members of the Community Affairs Committee that
held the inquiry into the Bill noted that ‘medical experts, drug and alcohol
treatment agencies, social and health policy experts, and community services
organisations all oppose the Bill’.[61]
The Labor Senators supported the ‘overwhelming consensus of experts’ that the
Bill should be opposed.[62]
Greens
The primary reason for the Greens Senators’ rejection of
the Bill is that it fails to ‘address drug and alcohol abuse as the serious and
complex health issue that it is’.[63]
In addition, the Greens expressed concern about the following:
- the
lack of consultation with the communities across the three trial sites prior to
the introduction of the Bill[64]
- the
imposition of income management on people who may have substance abuse issues[65]
- issues
with different drug testing techniques, including reliability issues and the
risk of false positives[66]
- the
lack of treatment services and the long waiting lists for access to those
services that do exist[67]
- absence
of support for addressing the underlying causes of addiction[68]
and
- the
Government’s lack of transparency in disclosing the costs of the trial.[69]
Centre
Alliance
Speaking in relation to the 2018 Bill, Rebekha Sharkie MP
stated:
The government refuses to publish the
cost of the trial to the taxpayer. The government argues
there are commercial implications for this nondisclosure. I do not believe
this. Government knows exactly how much it intends to spend on this particular
pilot study, and it should know how much it intends to spend on this program or
pilot study. Every single program should have a dollar figure
attached. Publish the costings. Every other program has this. Why not this? In
the absence of exceptional circumstances, I and my Centre Alliance colleagues
will never support legislation without knowing how much it's going to cost the
Australian taxpayer. We believe it is irresponsible, and we believe we would be
doing a great disservice to the Australian taxpayer if we did that.[70]
Ms Sharkie reiterated her earlier comments during the
debate on this Bill.[71]
Position of
major interest groups
Many of the submitters to the Community Affairs Committee
also submitted to Committee inquiries about the 2017 Bill and the 2018 Bill.
They have reiterated their earlier comments in relation to this Bill.
Medical
professionals
The Royal Australian & New Zealand College of
Psychiatrists (RANZCP) ‘does not consider that drug testing welfare recipients
is an appropriate way to support people experiencing addiction or substances
use issues’.[72]
The RANZCP also expressed its concern about the effect that the measure would
have ‘on the mental health of welfare recipients and their families generally’
and urged the Government ‘to consider the social and health impacts of this
proposed program on an already vulnerable population’.[73]
The Australian Medical Association (AMA) listed amongst
its concerns the following factors:
- Substance dependence or addiction
is primarily a health problem, and that those affected must be treated in the
same way as other patients with serious health conditions;
- Random drug testing does not
distinguish between those who are one off, or occasional drug users, and those
with significant dependence or addiction problems;
- The demand for drug and alcohol
treatment outweighs capacity to provide timely access to appropriate treatment
and support;
- Referring individuals who test
positive to treatment will increase demand on these services, resulting in less
capacity to assist those individuals who are actively seeking treatment
(independent of the trial).[74]
Drug and
alcohol services
The Victorian Alcohol and Drug Association (VAADA) decried
the image of ‘problematic substance use by the “drug user” who “chooses” to
indulge their habit at the expense of the “hard working taxpayer”’ which it
considers underpins the amendments in the Bill.[75]
It cites a review of the effectiveness of compulsory drug treatment and notes
the conclusion of the review that ‘there is a lack of evidence to show that
compulsory drug treatment is effective’.[76]
The Monash Addiction Research Centre expressed its concern
that the ‘trial’ does not represent acceptable science stating:
- False positives occur when the
test says that there are drugs in the system when there actually isn’t.
- False positives can occur in up to
5% of test, depending on the tests used. The tests used are not stated in the
bill. The AS/NZS 4308 standard for testing of drugs of abuse in urine does not
stipulate an acceptable level of false positives. This means there is no bar
with which we can hold these tests against. Clinical drug test interpretation
is ‘a complicated task requiring knowledge of recent prescription,
over-the-counter and herbal drug administration, drug metabolism and analytical
sensitivities and specificities’.
- The information on the types of
tests to be used, who will be conducting and interpreting them, and their
accuracy is insufficient.[77]
Community services
groups
UnitingCare Australia is concerned that the drug testing
‘trial’ is not proposed ‘merely in the absence of evidence that it is likely to
succeed, but in the presence of evidence to the contrary: previous trials in
New Zealand and the US indicate that the approach does not work’.[78]
Anglicare Australia is ‘strongly opposed to this measure’.[79]
The drug testing trial established under this Schedule is
discriminatory. It will further demonise welfare recipients, and it is not supported by evidence that this
measure would reduce drug use or help people find work. Mandatory drug
rehabilitation has repeatedly been found to be one of the least effective ways
for people to overcome a drug addiction and
Anglicare Australia’s most recent Jobs Availability Snapshot found that in 2018
between four and five people were competing for each low-skill, entry level
job.[80]
Mission Australia recommended that the Bill ‘be rejected
in its entirety’ and argued that drug dependence ‘should be treated as a health
issue, rather than a social security compliance or justice issue.’[81]
Local
Government
The City of Logan’s position is that Logan should be
suspended as a trial site. The City has asked the Commonwealth Government to
address the shortfall in treatment and other services before implementing any
drug testing trial.[82]
If the Government decides to proceed with the trial, the City of Logan has
suggested the following changes to the model:
- allowing for voluntary participation and support options
- bringing forward intervention and treatment support if the recipient
fails the first drug test
- incorporating a holistic approach to help people overcome barriers to
employment (including support around domestic and family violence, mental
health issues and homelessness, financial management etc.)
- providing incentives for welfare recipients to complete treatment
programs
- providing incentives to stay on treatment plan and cease problematic
drug use.[83]
Financial
implications
The Explanatory Memorandum to the Bill states that its
financial implications ‘are not for publication’.[84]
This is consistent with the Explanatory Memoranda for the
2017 Bill[85]
and the 2018 Bill.[86]
The Assistant Minister to the Prime Minister and Cabinet
has however noted:
The government has announced a
dedicated treatment fund of up to $10 million to support jobseekers in the
drug-testing trial across all three locations, after listening to feedback from
the drug and alcohol treatment sector. The treatment fund will provide for
additional treatment support in the trial locations where the existing state
or Commonwealth services and supports are not sufficient to meet additional
demand due to the trial.[87]
[emphasis added]
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.[88]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (the
Human Rights Committee) reported on the Bill on 5 December 2019.[89]
The Committee noted that the Bill engages and limits a
number of human rights, including the:
- right
to privacy
- right
to social security
- right
to an adequate standard of living and
- right
to equality and non-discrimination.[90]
As noted by the Human Rights Committee, it is permissible
to limit these rights where a measure seeks to achieve a legitimate objective,
is rationally connected to that objective and is proportionate to that
objective.[91]
The Committee accepted:
Pursuing the objectives of the early treatment of harmful
drug use to prevent drug dependency, and addressing barriers to employment created
by drug dependency, are likely to constitute legitimate objectives under
international human rights law.[92]
However, the Committee did not comment on the legitimacy
of the objective of maintaining ‘the integrity of, and public confidence in,
the social security system’.
The Committee went on to raise concerns about whether the
measure had sufficient rational connection to the legitimate objectives and
whether it was proportionate to these objectives.
A measure has a rational connection to an objective when
there is good evidence that it is likely to achieve the objective. The
Committee noted that the explanatory materials did not provide any evidence to
demonstrate that the trial would be likely to achieve its stated objectives.[93]
The Committee also commented–citing an American study–that
‘it is not clear that the single use of an illicit drug would constitute a
barrier to employment or would necessarily lead to dependence’.[94]
On the issue of proportionality the Committee questioned
whether the measure is sufficiently circumscribed, noting:
It would appear that the trial would limit the privacy rights
of a large group of people, in order to identify a very small number of people
who had used illicit drugs or have a drug abuse problem.[95]
The Committee asked for information on the evidence the
Government used to select the three trial sites. It also questioned why the
Government should automatically place a person on income management after a
single positive test without assessing whether this was necessary or appropriate
in the person’s circumstances.[96]
Under the
measures proposed in the Bill, a person who is referred to drug treatment can
have their payments suspended if they do not attend. The Committee noted that
‘there are questions regarding whether withholding subsistence payments for
failure to attend treatment takes into account evidence that addiction often
involves cycles of relapse before recovery.’ While delegates of the Secretary
have discretion over the use of compliance action, the Committee stated that
‘it is unclear how a delegate's discretion will prevent those addicted to drugs
from being unable to afford basic needs if their welfare payments are
suspended.’[97]
The Committee asked for more information in order to fully
assess the likely effectiveness and proportionality of the proposed measures.[98]
At the time of writing, the Minister’s response had not
been received by the Committee.[99]
Key issues
and provisions
Establishing
the drug test trial
What is a
drug test?
Item 1 of Part 1 of the Bill inserts a number of
new definitions into subsection 23(1) of the Social Security Act. A drug
test is formally defined as a test that has two characteristics:
- first,
it is carried out directly or indirectly under a contract with the Commonwealth for the carrying out of the test
and is in accordance with the drug test rules and
- second,
it is a test for the presence of a testable drug in a sample
taken in the drug test trial period from
the person’s saliva, urine or hair.
For the purposes of that definition, a testable drug
is:
- methamphetamine
- methylenedioxy-methamphetamine
- tetrahydrocannabinol
- heroin
- cocaine
or
- another
substance prescribed by the drug test rules for the purposes of this definition.[100]
Stakeholder
comments
The submission to the Community Affairs Committee by the
Workplace Drug Testing Association (WDTA) provides some insight into the nature
of testing. The submission states:
For Oral Fluid (saliva) or urine testing, the overall
principles for detection of drugs of abuse in onsite devices are the same. Both
detect closely related drugs within a drug family, which may include illicit
and prescription drugs. Typically, the drug families are opiates, cocaine,
amphetamine, methamphetamine, cannabis, benzodiazepines. The recent revision to
the oral fluids Australian Standard now includes oxycodone.[101]
And further:
Drug testing using hair is a reliable and convenient
alternative to tests that rely on saliva or urine. It is particularly useful in
detecting drug use in the longer term (typically several months prior to the
test being performed) ... It is regarded as less personally intrusive than urine
testing and more difficult to manipulate than other approaches.
...
... Unlike urine or saliva testing there is no current
Australian Standard for detecting drugs of abuse in hair. However, a number of
laboratories in Australia are [National Association of Testing Authorities,
Australia] NATA accredited to perform hair testing based on international
guidelines and procedures such as those published by the (International)
Society of Hair Testing which allows for
the detection of;
• Amphetamines (speed, ice, crystal Meth)
• THC (Cannabis, marijuana)
• Opiates (Codeine, heroin, morphine)
• Cocaine
• Benzodiazepines (sleeping tablets, tranquilizers).[102]
The AMA expressed its concern about the possibility that
there may be tests for other substances stating that it is:
... vitally important that participants in the trial have a
clear understanding of what substances they are being tested for.
It is also worth noting that a program of testing for certain
illicit substances may increase demand for other substances. One particularly
concerning area is synthetic drugs. These drugs have largely been developed to
avoid positive drug tests, but pose an equal if not higher risk if consumed.
Monitoring demand for synthetics in trial sites should be undertaken over the
two year period of the trial.[103]
What are the
drug test rules?
Item 3 in Part 1 of the Bill inserts proposed
section 38FA into the Social Security Act. This item provides that
the Minister may, by legislative instrument, make rules (the drug test
rules) about:
- prescribing
substances for the purposes of the definition of testable drug
- giving
and taking samples of persons’ saliva, urine or hair for use in drug tests
- dealing
with those samples
- carrying
out drug tests
- giving
results of drug tests in certificates or other documents and the evidentiary
effect of those certificates or documents
- confidentiality
and disclosure of results of drug tests
- requirements
relating to contracts entered into for the carrying out of drug tests
- keeping
and destroying records relating to the samples for use in drug tests or drug
tests.
The Government’s intention regarding the content of the drug
test rules (such as qualifications and procedures) is discussed at
pages 8–9 of the Explanatory Memorandum.
Where and
when does the trial occur?
For the purpose of the Bill, a person is a drug test
trial pool member at a time if:
- that
time is in the drug test trial period
- the
person’s usual place of residence is in a drug test trial area
- the
person is receiving NA or receiving YA (otherwise than on the basis that the
person is a new apprentice or undertaking full-time study)—because the person
made a claim in the drug test trial period and
- if
the claim was for YA—the claim was not based on the person being a new
apprentice or undertaking full-time study.[104]
The drug test trial period is 24 months commencing on the
day of commencement of Part 1 of Schedule 1 to the Bill.[105]
There are three drug test trial areas:
- the
part of New South Wales that was the area named Canterbury-Bankstown for the
purposes of the Local Government Act 1993 (NSW), as at the
start of 1 January 2018
- the
part of Queensland that was the local government area named Logan for the
purposes of the Local
Government Act 2009 (Qld),
as at the start of 1 January 2018
- the
part of Western Australia that was the district named Mandurah for the purposes of the Local
Government Act 1995 (WA),
as at the start of 1 January 2018.[106]
Grant of
claims lodged by pool members
Subsection 37(1) of the Administration Act states that
the Secretary must determine that a claim for a social security payment is to
be granted if the Secretary is satisfied:
- the
claimant is qualified for the social security payment and
- the
social security payment is payable.
The section also sets out other requirements to be
satisfied before a claim is granted.
Item 12 of Part 1 of the Bill inserts proposed
subsection 37(7A) into the Administration Act so that the
Secretary must not determine that a claim for NA or YA from a potential drug
test trial pool member is to be granted unless the claimant has acknowledged in
the claim that he, or she, could be required to give samples for drug tests to
be carried out in the drug test trial period.
Requirement
to be tested
Currently section 63 of the Administration Act
contains two subsections which work slightly differently from each other.
However, understanding how they operate is important to identify what
provisions will be relied on to require a person to give a sample and for a
drug test to be carried out on that sample.
First, subsection 63(2) of the Administration
Act empowers the Secretary to notify a person that he or she is required,
within a specified time, to:
- attend
an office of the Department
- contact
the Department
- attend
a particular place for a particular purpose or
- give
information to the Secretary.
However, the Secretary must not issue a notice under
subsection 63(2) requiring a person to do an act or thing that is referred to
in subsection 63(4).
Second, subsection 63(4) of the Administration Act
empowers the Secretary to notify a person that he, or she, is required to:
- complete a
questionnaire or
- undergo a medical,
psychiatric or psychological examination (whether or not at a particular
place), and provide to the Secretary the report, in the approved form, of the
person who conducts the examination.
Item 19 of Part 1 of the Bill inserts proposed
paragraph 63(4)(c) to allow the Secretary to require a drug test trial pool
member to give a sample of a particular kind at a particular place for a drug
test to be carried out on that sample.
The Secretary’s power is limited so that only 5,000
persons may be required to give samples.[107]
Importantly though, there is no limit to the number of times that the Secretary
may require a single person to be tested.[108]
According to the Explanatory Memorandum to the Bill:
Recipients selected will be notified to attend an appointment
at their local Centrelink office consistent with the standard Services
Australia (the Department of Human Services) appointment requirements.
At the appointment, recipients will be notified they are
required to undertake a random drug test immediately. Drug testing of
selected Newstart Allowance and Youth Allowance (other) recipients will be
administered by third party drug testing providers contracted for that purpose,
either in a private space at the Centrelink office or on the provider’s
premises nearby.[109]
[emphasis added]
It appears then, that a person might receive a notice to
attend an office of the Department (under subsection 63(2)) and be given a
pre-prepared notice to provide a drug testing sample there and then (under
subsection 63(4)). As per item 12 discussed above, the person would have
already acknowledged that they may be subject to drug tests.
Change to
mutual obligation requirement
Current law
Division 3AA in Part 3 of the Administration Act
allows the Secretary to take action to ensure that, amongst other things,
people in receipt of NA or YA meet their obligations.
Currently, under Division 3AA a person in receipt of NA or
YA commits a mutual obligation failure:
- for
failing to comply with a requirement of which they were notified under
subsection 63(2) and 63(4)[110]
- for
failing to attend, or be punctual for, an appointment that the person is
required to attend under subsection 63(2)[111]
or
- for
acting in an inappropriate manner during an appointment that the person is
required to attend under subsection 63(2).[112]
The general rule is that in such a case, the Secretary must
make a determination that NA or YA is not payable to the person.[113]
Where payment of NA or YA is not payable to a person for a period, the person
may then receive back pay once he or she has complied with the relevant
requirement (called a reconnection requirement).[114]
The payment must be cancelled if the person fails to comply with the reconnection
requirement within four weeks.[115]
What the
Bill does
Items 13–16 in Part 1 of the Bill amend the
operation of Division 3AA of Part 3.
Proposed paragraph 42AC(1(a) operates so that a
person who fails to comply with a requirement set out in a notice under
subsection 63(2) or 63(4) of the Administration Act will not have
committed a mutual obligation failure if:
- the
requirement notified under subsection 63(2) was such that it is reasonable to
expect that, if the person complied with the requirement, the person would be
required to do an act described in paragraph 63(4)(c)—that is, give a sample
for a drug test to be carried out or
- the
requirement was to give a sample for a drug test to be carried out under paragraph 63(4)(c).
The effect of this amendment is to remove the drug testing
regime from Division 3AA.
Relevant to later amendments in the Bill, in the absence
of a mutual obligation failure, it is not possible for the Secretary to apply
the usual rule in section 42AF to determine that the person’s payments are not
payable for a period.
Failure to
attend
Existing subsection 64(1) of the Administration Act
applies to a person who is receiving, or has made a claim for, a social
security payment. It sets out the effect of failing to comply with a
requirement about which the person has been notified under subsection 63(2) or
63(4). In that case, existing subsection 64(1) operates so that the payment
that the person is receiving, or has claimed, is not payable if the requirement
in the notice is reasonable and the person does not comply with the requirement.
In particular, paragraph 64(1)(e) of the Administration
Act has the effect that the Secretary is able to decide that a person’s
participation payment (which includes NA and YA) is not payable for a failure
to comply with a requirement imposed under a section 63 notice without first
having to consider whether the person had a reasonable excuse for that
failure.[116]
Item 21 of Part 1 of the Bill inserts proposed
subsection 64(1AA) into the Administration Act to make clear that
the requirement to give a sample for drug testing is not in and of itself
unreasonable. That being the case, subsection 80(1) of the Administration
Act provides that the payment may be cancelled or suspended.
If the
person takes a subsequent drug test
Proposed subsections 110A(2) and (3) of the Administration
Act apply to set the date from which suspended payments will be resumed if
the person then complies with subsequent notices to do the relevant act or
thing.[117]
According to the Explanatory Memorandum to the Bill:
The intention is that a person’s Newstart Allowance or Youth
Allowance will not be backdated to the date of suspension but will only
be payable from the date the person attended an appointment in accordance with
the later notice, unless the Secretary is satisfied that the person had a
reasonable excuse (for example, was required to attend a job interview at short
notice) for not attending the appointment in accordance with the earlier notice
and can provide evidence of this.[118]
[emphasis added]
Refusal to
undertake a drug test
According to the Explanatory Memorandum a person ‘who
refuses to take the test (whether first of subsequent tests) will have their
payment cancelled...unless the person has a reasonable excuse. Suspension will
not be an option’.[119]
In that case, if the person lodges a new claim, proposed
sections 549EA and 549EB of the Social Security Act (item 6
of Part 1 of the Bill) provide that the person serves a drug test refusal
waiting period of 28 days before YA is payable.[120]
Proposed sections 623C and 623C of the Social Security Act
provide for a drug test refusal waiting period in equivalent terms in respect
of NA.[121]
Positive
drug test disputed
A positive drug test for a person means an
indication by a drug test that a testable drug was present in a
sample of the person’s saliva, urine or hair given by the person in compliance
with a requirement notified to the person under paragraph 63(4)(c) of the Administration
Act.[122]
A recipient who disputes the result of a drug test can
request to have the sample retested—although the mechanics of requesting a
second drug test are unclear. The Human Rights Committee sought an explanation about
this issue from the Minister in relation to the 2017 Bill. The Minister advised
that ‘it is intended that the sample taken by the drug testing provider will be
split into two samples, and that if a job seeker requests a re-test, this will
be done using the second sample’.[123]
Paying the
cost of a re-test
However, if that test also has a positive result, the
person will be required to pay the cost of the second test. Item 11 of
Part 1 of the Bill inserts proposed Part 3.16C—Drug test repayment
deductions into the Social Security Act setting out the manner of
calculating the drug test repayment amount and the method for its recovery.
Under proposed subsections 1206XA(6) and 1206XA(7) in new Part 3.16C, the
Secretary may make a legislative instrument about the drug test repayment
amount. In doing so, 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 Explanatory Memorandum to the Bill provides the following
example of how the repayment by deductions will work:
An amount of $80 has been used for the purposes of this
example. Repayment will commence from the person’s next social security payment
once Services Australia becomes aware of a drug test repayment requirement for
a person. If the repayment rate is set by the Secretary at 5 per cent, and the
person’s rate of Newstart Allowance is calculated to be $555.70 (that is, the
maximum basic rate per fortnight for a single recipient with no children) this
person will have an amount of $27.80 deducted from their payment rate and
credited to their drug test repayment balance. This will reduce their
outstanding balance to $52.20. If they subsequently return a further positive
drug test and request a re-test that is again positive, the amount to be repaid
for that re-test will be added to their balance.[124]
The payment of a drug test repayment of $80 as set out in
the example looks somewhat benign. However, it is not known what the drug test
repayment will be until the Secretary makes the relevant legislative
instrument. Estimates of cost vary. For instance, the Australian Council of Social
Service has been reported as saying it is ‘likely to cost between $500–$900 per
person per test’.[125]
By comparison, the WDTA states that ‘typical costs for all equipment, testing
and chain of custody transport are in the range of around $100–$150 per
individual tested, depending on the choice of program and testing method’.[126]
Positive
drug test—income management
Part 3B of the Administration Act sets out the
income management regime. Broadly speaking it applies to recipients of certain
welfare payments for specified reasons. Item 25 inserts proposed
paragraph 123TA(gb) into the Administration Act so that one of the
specified reasons is that there is a positive drug test for the person and the
tester tells the Secretary that the person should be subject to the income
management regime.
A person who is subject to the income management regime
has an income management account. Amounts are deducted from the person’s
welfare payments and credited to the person’s income management account.
Amounts are debited from the person’s income management account for the
purposes of enabling the Secretary to take action directed towards meeting the priority
needs of:
- the
person
- the
person’s children (if any)
- the
person’s partner (if any) and
- any
other dependants of the person.[127]
Item 28 of Part 1 of the Bill inserts proposed
subsection 123UFAA(1A) into the Administration Act. The amendment
operates so that a person who has had a positive drug test will be subject to
the income management regime for a period of the 24 months, or a longer period as
determined by the Secretary. Under proposed paragraph 123UFAA(1A)(c), it
is the role of the contractor who carried out the drug test to provide the
Secretary with a written notice saying that the person should be subject to
income management. As discussed above in this Digest, this was a point of
concern for the Scrutiny of Bills Committee.
However, proposed subsection 123UFAA(1C) requires the
Secretary to determine that a person is not subject to the income management
regime if being subject to the regime poses a serious risk to the person’s
mental, physical or emotional wellbeing.
How income
management works
According to DSS:
Under Income Management, Services Australia makes Income
Management payments to businesses through a number of mechanisms. Merchants can
be approved for BasicsCard which allows them to accept payment through their
standard EFTPOS facilities ... If a merchant cannot accept the BasicsCard, DHS
can make a payment to them in a number of other ways. Income Management Third
Party Organisations are businesses that generally do not have EFTPOS to support
BasicsCard activation. They include service providers receiving fortnightly
payments without the customer needing to attend the business, as is the case
for BasicsCard. Income Management Third Party Organisations also include a
large number of private landlords that cannot be paid by BasicsCard. Using the
Services Australia system, a payment can be made to a contracted or
un-contracted third party’s nominated bank account without the need for manual
processing.[128]
Second positive
drug test
In order to qualify for YA a person must, amongst other
things, enter into an Employment Pathway Plan (EPP).[129]
In addition, while an EPP is in force, the person must comply with its
requirements.[130]
Equivalent requirements apply in relation to NA.[131]
Currently, section 544B of the Social Security Act
sets out the terms of a YA Employment Pathway Plan. Item 4 of Part 1 of
the Bill inserts proposed subsection 544B(1AA) into the Social
Security Act so that one of the requirements of a YA Employment Pathway
Plan must relate to undertaking treatment of the person for 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 in
compliance with a notice given to him, or her, under subsection 63(4) of the Administration Act after the person has had two (or
more) positive drug tests and
- the
report of the examination given to the Secretary recommends that the person
undertake treatment for the use of drugs.
Item 7 of Part 1 of the Bill inserts proposed
subsection 606(1AA) into the Social Security Act in equivalent
terms. It operates to add the same requirements to a NA Employment Pathway
Plan.
This relates to the Government’s Treatment Plan commitment
discussed above in this Digest.
Concluding comments
It is unclear how the Government plans to proceed if the
trial goes ahead and is favourably evaluated.
The trial relies on the income management system rather
than the cashless debit card. According to the report of the Forrest Review—Creating
Parity—income management is ‘unsustainable and unsuitable for broader
application.’[132]
Income management imposes a larger workload on Centrelink and Services
Australia than the cashless debit card. Services Australia has to do a
considerable amount of work to establish income management in a new location.[133]
The Government is planning to replace income management with
the cashless debit card in the Northern Territory and Cape York.[134]
This leaves a relatively small number of income management sites around
Australia. To expand the drug testing model outlined in this Bill to new
locations, the Government would also need to expand the number of income
management sites. However, apart from the measure in this Bill, the Government
appears to be moving in the opposite direction.
Some commentators have questioned whether the trial is
focused on political rather than policy objectives and whether these can be
accomplished by proposing a trial rather than implementing a broader roll-out.
For example, Sky News commentator Peta Credlin has described the measure as ‘a shopping list out of the focus groups’ and Philip
Coorey of the Australian Financial Review has critiqued recent
statements by the Prime Minister to suggest that the Government is using the
Bill to position the Opposition on the wrong side of popular policy.[135]
[1]. R
Lewis and P Riordan, ‘Drug
tests for welfare recipients facing axe’, The Weekend Australia, 21
October 2017, p. 6; see also: Social
Services Legislation Amendment (Welfare Reform) Bill 2017, schedule of
amendments, Senate, 26 March 2018, clause 13.
[2]. For
more information on this Bill see: D Arthur, Social
Services Legislation Amendment (Drug Testing Trial) Bill 2018, FlagPost,
Parliamentary Library blog, 7 March 2018.
[3]. 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, pp.
443–444.
[4]. 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 website, n.d.
[5]. M
McCarty, G Falk, R Aussenberg, D Carpenter, Drug testing and
crime-related restrictions in TANF, SNAP, and housing assistance,
Congressional Research Service, Washington, 28 November 2016, p. 28.
[6]. Ibid.,
p. 1.
[7]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, p. 3.
[8]. Department
of Social Services (DSS), Submission
to Senate Community Affairs Legislation Committee, Inquiry into the Social
Services Legislation Amendment (Drug Testing Trial) Bill 2019, [Submission
no. 10], 27 September 2019, p. 10.
[9]. Senate
Community Affairs Legislation Committee, Official
committee Hansard, 31 May 2017, pp. 95–96.
[10]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, p. 3.
[11]. DSS,
Submission
to Senate Community Affairs Legislation Committee, op. cit., p. 3.
[12]. Ibid.,
p. 6.
[13]. DSS,
‘How
does income management work?’, DSS website, last updated 21 January 2014.
[14]. B
Morton, ‘Second
reading speech: Social Services Legislation Amendment (Drug Testing Trial) Bill
2019’, House of Representatives, Debates, 11 September 2019, p.
2457.
[15]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, p. 4.
[16]. Ibid.,
pp. 3–4.
[17]. DSS,
‘Budget
measure – tackling substance abuse by welfare recipients,’ brief for
2017–18 Budget Estimates hearings, May 2017, p. 1.
[18]. C
Porter (Minister for Social Services),Transcript
of joint press conference: Canberra: welfare reform, Centrelink, compliance
system, cashless debit card, Budget, ABC News Mornings, transcript,
Australian Broadcasting Corporation (ABC), 11 May 2017, p. 20.
[19]. A
Tudge (Minister for Human Services), Interview
with Jon Faine, ABC 774 Melbourne, transcript, 7 September 2017, p. 4.
For data on treatment services in Australia see: Australian Institute of Health
and Welfare (AIHW), Alcohol and
other drug treatment services in Australia 2017–18, Drug Treatment
Series, 33, AIHW, Canberra, 2019.
[20]. DSS,
‘Drug
testing trial’, DSS website, last updated 12 September 2018.
[21]. For
example, Australian Association of Social Workers, Submission
to the Senate Standing Committee on Community Affairs, Inquiry into
the Social Services Legislation Amendment (Drug Testing Trial) Bill 2019,
[Submission no. 20], September 2019, p. 3.
[22]. K
Paton, Evidence
to Senate Standing Committee on Community Affairs, Inquiry into the Social
Services Legislation Amendment (Drug Testing Trial) Bill 2019, 2 October
2019, p. 59.
[23]. DSS
estimates that around 425 recipients will test positive to the first drug test
and will be placed on income management. The Department expects that a further
120 of these recipients will test positive in the second test and be referred
to a medical professional for assessment. Assuming they have not left payment
before the second test, this would leave an estimated 305 recipients who
test positive to the first test but not a second. See: DSS, ‘Budget
measure – tackling substance abuse by welfare recipients,’ brief for
2017–18 Budget Estimates hearings, May 2017, p. 1.
[24]. Senate
Community Affairs Legislation Committee, Answers to Questions on Notice, Social
Services Portfolio, Supplementary Budget Estimates 2017–18, Question
SQ17-000558.
[25]. DSS,
Submission
to Senate Community Affairs Legislation Committee, op. cit., p. 3.
[26]. A
Ruston (Minister for Families and Social Services), Drug
testing trials to help welfare recipients become job ready, media
release, 6 September 2019.
[27]. A
Tudge, quoted in: S Benson, ‘Voters
support drug tests for dole recipients’, The Australian, 2 November
2017, p. 1.
[28]. A
Ruston, quoted in: R Viellaris, ‘Addicts,
alcos on disabled pension’, The Courier Mail, 21 October 2019, p. 3.
[29]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, p. 27.
[30]. Ibid.,
p. 3.
[31]. A
Ruston, Transcript
of interview with Ali Clarke and David Bevan: 891 ABC Adelaide: drug testing
trial; cashless debit card; submarine maintenance; Murray Darling ,
transcript, 11 September 2019, pp. 3–4.
[32]. Liberal
Party of Australia and the Nationals, Tough
on drugs, Coalition policy document, Election 2007, p. 2.
[33]. J
Howard (Prime Minister) and Peter Costello (Treasurer), Joint
press conference: Phillip Street, Sydney: tough on drugs policy; the economy;
climate change, transcript, 18 November 2007, p. 1.
[34]. G
Christensen (Federal Member for Dawson), No
drug test, no dole, media release, 31 May 2012.
[35]. B
Packham, ‘Drug
test the unemployed before dole, says Coalition MP George Christiansen [sic]’,
The Australian, 31 May 2012.
[36]. 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.
It was subsequently defunded in December 2014 (see: Alcohol Tobacco and
Other Drug Association ACT, ‘Archived ANCD Website’,
ATODA website, last updated 5 August 2015).
[37]. P
McClure, A
new system for better employment and social outcomes: interim report,
DSS, Canberra, 2014, p. 160.
[38]. S
Maiden, ‘Drug
testing for the dole’, The Sunday Mail, 1 June 2014, p. 3.
[39]. Kevin
Andrews, Interview
with Chris Uhlmann, ABC AM: welfare reform, transcript, 2 June 2014.
[40]. G
Brandis, ‘Answer
to Question without notice: illicit drugs’, [Questioner: J Lambie], Senate,
Debates, 24 November 2015.
[41]. United
States, National Conference of State Legislatures (NCSL), ‘Drug
testing for welfare recipients and public assistance’, NCSL website, 24
March 2017.
[42]. B
Covert and J Israel, ‘Drug
testing welfare recipients is a popular new policy that cost states millions. Here
are the results’, ThinkProgress website, 19 February 2016 (updated
29 March 2019).
[43]. Missouri
Department of Social Services (Family Support Division and HealthNet Division),
‘Monthly Management Report:
November 2019’, Missouri Department of Social Services website, 2019, p. 7.
[44]. As
well as drug testing recipients identified by the screening test Missouri also
administers drug tests to recipients who have an arrest or conviction for a
misdemeanour or felony drug offense for the previous 12 months. Department of Social
Services (Missouri), Temporary
Assistance drug testing requirements, 19 February 2013.
[45]. A
Campbell (Director), Memorandum:
temporary assistance drug testing manual revision #10, Family Support
Division, Department of Social Services (Missouri), 20 February 2013. For
background information on this screening test see: P Smith, S Schmidt, A
Allensworth-Davies and R Saitz, ‘A Single-Question
Screening Test for Drug Use in Primary Care’, Archives of Internal
Medicine, 170(13), 12 June 2010.
[46]. D
Carpenter, Constitutional
analysis of suspicionless drug testing requirements for the receipt of
governmental benefits, Congressional Research Service, 6 March 2015.
[47]. McCarty,
et al, Drug testing and
crime-related restrictions, op. cit., p. 28.
[48]. Ministry
of Social Development (NZ), ‘Drug
testing’, Work and Income website.
[49]. New
Zealand, Ministry of Social Development, Obligations
and sanctions rapid evidence review: paper 4: drug testing obligations and sanctions,
paper prepared for the Welfare Expert Advisory Group, November 2018, p. 3. Footnote
references have been omitted from this quotation and can be viewed in the
source document.
[50]. Work
and Income New Zealand, ‘Drug
testing’, op. cit.
[51]. New
Zealand, Ministry of Social Development, op. cit., p. 3.
[52]. C
Trevett, ‘Addicts
escape beneficiary drug testing’, New Zealand Herald, 3 July 2012.
[53]. New
Zealand, Ministry of Social Development, op. cit., p. 2.
[54]. Details
of the terms of reference, submissions to the Community Affairs Committee and
the Committee’s final report are available on the inquiry
homepage.
[55]. Senate
Community Affairs Legislation Committee, Social Services
Legislation Amendment (Drug Testing Trial) Bill 2019 [Provisions], The
Senate, Canberra, October 2019, p. ix.
[56]. Ibid.,
pp. 21–36.
[57]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2019, 18 September 2019, p. 22.
[58]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2018, 21 March 2018, pp. 34–44.
[59]. Ibid.,
p. 44.
[60]. Ibid.
[61]. Labor
Senators, Dissenting
report, Senate Community Affairs Legislation Committee, Social Services
Legislation Amendment (Drug Testing Trial) Bill 2019 [Provisions], The
Senate, Canberra, 2019, p. 21.
[62]. Ibid.,
p. 26.
[63]. Australian
Greens, Dissenting
report, Senate Community Affairs Legislation Committee, Inquiry into the
provisions of the Social Services Legislation Amendment (Drug Testing Trial)
Bill 2019, The Senate, Canberra, 2019, p. 27.
[64]. Ibid.,
p. 28.
[65]. Ibid.,
p. 29.
[66]. Ibid.,
p. 31.
[67]. Ibid.,
pp. 32–33.
[68]. Ibid.,
p. 34.
[69]. Ibid.,
p. 35.
[70]. R
Sharkie, ‘Second
reading speech: Social Services Legislation Amendment (Drug Testing Trial) Bill
2018’, House of Representatives, Debates, 13 August 2018, p. 7038.
[71]. R
Sharkie, ‘Second
reading speech: Social Services Legislation Amendment (Drug Testing Trial) Bill
2019’, House of Representatives, Debates, 17 October 2019, p. 4508.
[72]. RANZCP,
Submission
to the Senate Community Affairs Legislation Committee, Inquiry into
provisions of the Social Services Legislation Amendment (Drug Testing Trial)
Bill 2019, [Submission no. 5], 26 September 2019, p. 1.
[73]. Ibid.,
p. 2.
[74]. Australian
Medical Association (AMA), Submission
to the Senate Community Affairs Legislation Committee, Inquiry into
provisions of the Social Services Legislation Amendment (Drug Testing Trial)
Bill 2019, [Submission no. 36], n.d., p. 1.
[75]. Victorian
Alcohol and Drug Association (VAADA), Submission to the Senate
Community Affairs Legislation Committee, Inquiry into provisions of the
Social Services Legislation Amendment (Drug Testing Trial) Bill 2019,
[Submission no. 26], n.d., p. 3.
[76]. Ibid.,
p. 4.
[77]. Monash
Addiction Research Centre (Monash University), Submission to the Senate
Community Affairs Legislation Committee, Inquiry into provisions of the
Social Services Legislation Amendment (Drug Testing Trial) Bill 2019,
[Submission no. 27], n.d., p. 3.
[78]. UnitingCare
Australia, Submission to the Senate Community
Affairs Legislation Committee, Inquiry into provisions of the Social
Services Legislation Amendment (Drug Testing Trial) Bill 2019, [Submission
no. 31], September 2019, p. 3.
[79]. Anglicare
Australia, Submission to the Senate
Community Affairs Legislation Committee, Inquiry into provisions of the
Social Services Legislation Amendment (Drug Testing Trial) Bill 2019,
[Submission no. 22], 27 September 2019, p. 5.
[80]. Ibid.
[81]. Mission
Australia, Submission
to the Senate Community Affairs Legislation Committee, Inquiry into
provisions of the Social Services Legislation Amendment (Drug Testing Trial)
Bill 2019, [Submission no. 38], 2019, p. 2.
[82]. City
of Logan, Submission
to the Senate Community Affairs Legislation Committee, Inquiry into
provisions of the Social Services Legislation Amendment (Drug Testing Trial)
Bill 2019, [Submission no. 15], 24 September 2019, pp. 1–2.
[83]. Ibid.,
p. 3.
[84]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, p. 1.
[85]. Explanatory
Memorandum, Social Services Legislation Amendment (Welfare Reform) Bill
2017, p. 4.
[86]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2018, p. 2.
[87]. Morton,
‘Second
reading speech: Social Services Legislation Amendment (Drug Testing Trial) Bill
2019’, op. cit., p. 2457.
[88]. The
Statement of Compatibility with Human Rights can be found at pages 25–33 of the
Explanatory
Memorandum to the Bill.
[89]. Parliamentary
Joint Committee on Human Rights (PJCHR), Human rights
scrutiny report, 6, 2019, 5 December 2019, pp. 54–63.
[90]. Ibid.,
p. 55.
[91]. Ibid.,
p. 57.
[92]. Ibid.,
p. 58.
[93]. Ibid.,
p. 58.
[94]. Ibid.
[95]. Ibid.,
p. 59.
[96]. Ibid.,
p. 60.
[97]. Ibid.,
p. 62.
[98]. Ibid.,
p. 63.
[99]. Parliamentary
Joint Committee on Human Rights, Correspondence
register, Australian Parliament website.
[100]. Social
Security Act, subsection 23(1) as amended by item 1 in Part 1 of the
Bill.
[101]. Workplace
Drug Testing Association (WDTA), Submission
to the Senate Community Affairs Legislation Committee, Inquiry into provisions
of the Social Services Legislation Amendment (Drug Testing Trial) Bill 2019,
[Submission no. 47], n.d., pp. 5–6.
[102]. Ibid.,
pp. 6, 7.
[103]. AMA,
Submission to the Senate
Committee on Community Affairs, op. cit., p. 3.
[104]. Social
Security Act, subsection 23(1), amended by item 1 of Part 1 of the
Bill.
[105]. Social
Security Act, subsection 23(1), amended by item 1 of Part 1 of the
Bill. As set out above, this will be the first 1 January, 1 April, 1
July or 1 October occurring at least two months after the Bill receives Royal
Assent.
[106]. Social
Security Act, subsection 23(1), amended by item 1 of Part 1 of the
Bill.
[107]. Administration
Act, proposed subsection 63(4A) inserted by item 20 in Part 1
of the Bill.
[108]. Administration
Act, see Note under proposed subsection 63(4A) inserted by item
20 in Part 1 of the Bill.
[109]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, pp. 3–4.
[110]. Administration
Act, paragraph 42AC(1)(a).
[111]. Administration
Act, paragraph 42AC(1)(c).
[112]. Administration
Act, paragraph 42AC(1)(g).
[113]. Administration
Act, subsection 42AF(1).
[114]. Administration
Act, section 42AL.
[115]. Administration
Act, section 42AM.
[116]. Revised
Explanatory Memorandum, Social Security Legislation Amendment (Job Seeker
Compliance) Bill 2011, p. 9.
[117]. Inserted
by item 24 of Part 1 of the Bill.
[118]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, p. 18.
[119]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, p. 4.
[120]. Inserted
by item 6 of Part 1 of the Bill.
[121]. Inserted
by item 8 of Part 1 of the Bill.
[122]. Social
Security Act, subsection 23(1), amended by item 1 of Part 1 of the
Bill.
[123]. PJCHR,
Human rights
scrutiny report, 11, 2017, 17 October 2017, p. 164.
[124]. Explanatory
Memorandum, Social Services Legislation Amendment (Drug Testing Trial) Bill
2019, p. 12.
[125]. L
Henriques–Gomes, ‘The
Coalition want to drug test welfare recipients. Here’s why experts think it’s a
bad idea’, The Guardian (Australia), 10 September 2019.
[126]. WDTA,
Submission
to the Senate Community Affairs Legislation Committee, op. cit., p. 3.
[127]. See
simplified outline of the income management regime: Administration Act,
section 123TA.
[128]. DSS,
Submission
to Senate Community Affairs Legislation Committee, op. cit., pp. 6–7.
[129]. Social
Security Act, Part 2.11, section 544A.
[130]. Social
Security Act, paragraph 544(1)(b).
[131]. Social
Security Act, Part 2.12, subsections 605(1) and 606(1).
[132]. A
Forrest, The
Forrest review: creating parity, Department of the Prime Minister and
Cabinet, Canberra, 2014, p. 27.
[133]. D
Arthur and J Ayoub, Social
Security (Administration) Amendment (Income Management to Cashless Debit Card
Transition) Bill 2019, Bills digest, 62, 2019–20, Parliamentary
Library, Canberra, 2019, p. 7.
[134]. Ibid.
[135]. D
Speers, ‘Budget
2017 with David Speers’, Sky News, 9 May 2017. P Coorey, ‘PM's
tactics test the patience of the quiet Australians’, The Australian
Financial Review, 13 September 2019, p. 39.
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