2.250
While the committee previously accepted that the cashless welfare trial
measures may pursue a legitimate objective,[109]
it raised concerns as to whether the measures are rationally connected to (that
is, effective to achieve) and proportionate to their objective.[110]
2.251
In relation to whether the measure is effective to achieve its stated
objective, the statement of compatibility cites findings from the Wave 1
Interim Evaluation Report of the Cashless Debit Card Trial, conducted by ORIMA
Research and commissioned by the Department of Social Services, based on data
collected in the two trial locations over the first six months of the trial.[111]
The statement of compatibility describes the report as indicating that 'the
trial is having positive early impacts in relation to alcohol consumption,
illegal drug use, and gambling in the trial regions'.[112]
As outlined in the previous analysis, statistics cited from the report include
that 25% of participants reported drinking alcohol less frequently; 32%
reported gambling less; and 24% reported using illicit drugs less often.[113]
2.252
While the report states that 'overall, the [trial] has been effective to
date' in terms of its performance against certain pre-established indicators,
it was noted that the report also contains some other more mixed findings on
the operation of the scheme. For example, 49% of participants said the trial
had made their lives worse, as did 37% of family members;[114]
33% of participants reported noticing an increase in 'humbugging'[115]
or harassment for money, as did 35% of family members;[116]
and 46% of participants reported experiencing problems using their card.[117]
These statistics are not cited in the statement of compatibility.
2.253
Further, the initial analysis noted that a review of the ORIMA report,
published by the Centre for Aboriginal Economic Policy Research at the
Australian National University, raised several issues with the evaluation's
findings and methodology.[118]
In particular, the review noted the difficulty in identifying whether a
reduction in alcohol use was directly attributable to the cashless debit card
trial or to alcohol restrictions separately implemented in both locations,
including the Takeaway Alcohol Management System trial operating in the East
Kimberley during the same period.[119]
2.254
The initial analysis cited an additional concern that the final
evaluation of the trial based on the initial 12 month period, which the
statement of compatibility cites as a safeguard in relation to the measure,[120]
had not yet been finalised. The trial was therefore being extended in the two
locations, and expanded elsewhere, before more comprehensive evaluation
findings were available. While the statement of compatibility states that
'early indications' suggest the next stage of the report 'will continue to
demonstrate positive results',[121]
the concerns raised above in relation to some of the interim report's findings raise
doubts as to whether the trials have been successful. It was therefore not
clear from the statement of compatibility as to why extending and expanding the
trials would be effective to achieve the objectives of the measure.
2.255
It was also unclear that the extension of the trials is a proportionate
limitation on human rights. The existence of adequate and effective safeguards,
to ensure that limitations on human rights are the least rights restrictive way
of achieving the legitimate objective of the measure, are relevant to assessing
the proportionality of these limitations.
2.256 In this respect,
the statement of compatibility argues that it is a relevant safeguard that the
rollout of the trials in the two existing locations was subject to an extensive
consultation process, and that similar consultation will be conducted in new
trial locations, to be set out in legislative instruments. However, it was not
clear from the statement of compatibility that consultation had been held in
the existing locations in relation to the extension of the trials. It
was noted that Indigenous people make up the overwhelming number of
participants in both trial sites.[122]
While the United Nations Declaration on the Rights of Indigenous Peoples is not
included in the definition of 'human rights' under the Human Rights
(Parliamentary Scrutiny) Act 2011, it provides some useful context
as to how human rights standards under international law apply to the
particular situation of Indigenous peoples. Under the Declaration, state parties
such as Australia are obligated to 'consult and cooperate in good faith' with
Indigenous peoples 'in order to obtain their free, prior and informed consent
before adopting and implementing legislative or administrative measures that
may affect them'.[123]
2.257 The explanatory
memorandum for the Debit Card Bill 2015 noted that the policy intention was for
the trial to take place for only 12 months in each location.[124]
The initial analysis stated that there was a concern that the trial was now
being extended through the bill with no specified end date or sunsetting
provision and potentially without adequate consultation with the affected
communities. In this respect, the bill would permit 'trials' to be rolled out,
extended and imposed on communities on a compulsory basis through legislative
instruments without existing safeguards.[125]
2.258 More generally,
the previous analysis identified that the cashless debit card would be imposed
without an assessment of individual participants' suitability for the scheme.
In assessing whether a measure is proportionate, relevant factors to consider
include whether the measure provides sufficient flexibility to treat different
cases differently or whether it imposes a blanket policy without regard to the
circumstances of individual cases.
2.259
As the cashless debit card trial applies to anyone residing in locations
where the trial operates who is receiving a social security payment specified
under the scheme, serious doubts were raised as to whether the measures are the
least rights restrictive way to achieve the stated objectives. The previous
analysis noted that, by comparison, the income management regime in
Queensland's Cape York allows for individual assessment of the particular
circumstances of affected individuals and the management of their welfare
payments.[126]
Accordingly, the committee previously stated that this regime may be less
rights restrictive than the blanket location-based scheme applied under other
income management measures.[127]
2.260
The compulsory nature of the cashless debit card trial also raises
questions as to the proportionality of the measures. In its 2016 Review, the
committee stated that, while income management 'may be of some benefit to those
who voluntarily enter the program, it has limited effectiveness for the vast majority
of people who are compelled to be part of it'.[128]
The previous analysis stated that application of the scheme on a voluntary
basis, or with a clearly defined process for individuals to seek exemption from
the trial, would appear to be a less right restrictive way to achieve the
trial's objectives. This was not discussed in the statement of compatibility.
2.261
The committee therefore sought further information from the minister as
to:
-
why it is necessary to extend and expand the trials (including
why the extension and expansion is proposed before the final evaluation report
is finalised and why no end date to the current trial is specified);
-
how the measures are effective to achieve the stated objectives
(including whether there is further evidence in relation to the stated
effectiveness of the trial);
-
how the limitation on human rights is reasonable and
proportionate to achieve the stated objectives (including the existence of
safeguards and whether affected communities have been adequately consulted in
relation to the extension of the trial); and
-
whether the use of the cashless debit card could be restricted
to instances where:
-
there has been an assessment of an individual's suitability to
participate in the scheme rather than a blanket imposition based on location in
a particular community;
-
individuals opt-in on a voluntary basis.
Minister's response
2.262
The minister's response restates the objectives of the trial and
emphasises the necessity of the measures 'given the high levels of harm in
potential communities'. The committee has previously assessed that the stated
objective of the trials, in seeking to reduce hardship, violence and harm in
communities, is a legitimate objective for the purposes of international human
rights law.
2.263
The minister's response states that the initial decision to extend the
trials in the two current sites was based on the results of the interim
evaluation report as well as ongoing positive feedback from people in the trial
communities. The response also refers to the final evaluation report of the
cashless debit card trial, conducted by ORIMA Research and released on 1
September 2017, which 'has seen an even further increase in positive outcomes
against the three key indicators of a reduction in alcohol and drug use and
gambling'. The response states that the expansion of the trials is necessary to
'allow the Government an opportunity to build on the research findings of the
interim and final reports [and] to help test the card and the technology that
supports it in more diverse communities and settings'.
2.264
In relation to the effectiveness of the trial, the minister's response
cites a range of statistics from the final evaluation report, including:
-
Of people surveyed who drank
alcohol before the trial started, towards the end of the 12 months 41% reported
drinking alcohol less frequently (up from 25% in the Wave 1 survey, which was
done approximately six months into the trial); 37% of binge drinkers were doing
this less frequently (up from 25% at Wave 1).
-
A decrease in alcohol-related
hospital presentations including a 37% reduction in Ceduna in the first quarter
of 2017 compared with first quarter of 2016 (immediately prior to the
commencement of the trial).
-
A 14% reduction in Ceduna in the
number of apprehensions under the Public Intoxication Act compared to
the previous year.
-
In the East Kimberley, decreases
in the alcohol-related pick-ups by the community patrol services in Kununurra
(15% reduction) and Wyndham (12%), and referrals to the sobering up shelter in
Kununurra (8% reduction).
-
A decrease in the number of women
in East Kimberley hospital maternity wards drinking through pregnancy.
-
Qualitative evidence of a decrease
in alcohol-related family violence notifications in Ceduna.
-
A noticeable reduction in the
number of visible or public acts of aggression and violent behaviour. Nearly
40% of non-participants perceived that violence in their community had decreased.
-
People are now seeking medical
treatment for conditions that were previously masked by alcohol effects.
-
48% of gamblers reported gambling
less (up from 32% at Wave 1).
-
In Ceduna and surrounding local
government areas (which covers a much bigger region that [sic] the card's
operation), poker machine revenue was down 12%. This is the equivalent of
almost $550,000 less spent on poker machines in the 12 month trial.
-
The card has had "a positive
impact in lowering illegal drug use" across the two sites.
-
Of drug takers, 48% reported using
illegal drugs less often (up from 24% at Wave 1).
-
40% of participants who had caring
responsibility reported that they had been better able to care for their
children (up from 31% at Wave 1).
-
45% of participants have been
better able to save more money (up from 31% at Wave 1).
2.265
It is noted that the final evaluation report appears to provide some
evidence to indicate that aspects of the trial may be effective. This includes
statistics on participants' reported drug and alcohol use and gambling, which
appear to have improved by comparison with the findings of the interim report.
2.266
However, as with some of the findings of the interim report (outlined at
[2.252]), the final evaluation contains some mixed results which indicate ongoing
concerns over the effectiveness and operation of the scheme. For example, 32%
of participants reported that the trial had made their lives worse;[129]
24% of participants with children reported that their child/children's lives
were worse as a result of the trial;[130]
33% of participants reported experiencing problems with their card;[131]
and 27% of participants reported noticing an increase in 'humbugging'.[132]
These statistics and their implications are not referenced in the minister's
response.
2.267
Further, questions remain from the final evaluation report regarding the
extent to which the reduction in alcohol use is attributable to the cashless
debit card trial or to alcohol restrictions separately implemented in both
locations, as identified in the review of the interim evaluation report
published by the Centre for Aboriginal Economic Policy Research set out above
at [2.253].
2.268
In relation to how the measures are reasonable and proportionate, the
minister's response states:
This amendment does not remove the legislative safeguards
protecting how, when and where the Cashless Debit Card can operate. The
legislation continues to ensure that the program cannot be implemented in any
location without the introduction of a disallowable instrument. These
instruments can also specify other safeguards, including sunset dates and
participant criteria. This provides the opportunity for the Government to
co-design these parameters with interested communities, and tailor the program
to meet community needs. It also allows those communities to make decisions about
these arrangements in their own time, rather than being restricted by the
legislation end date. These safeguards ensure that Parliament retains the right
to consider each proposed application of the cashless debit card. Instead of
passing legislative amendments for potential hypothetical communities and
participants, Parliament can accept or reject new sites by considering the
impacts and level of community support for the measure on a case by case basis.
2.269
While it is noted that under the bill the legislative instruments would
be able to set out some relevant safeguards, there is no requirement in the
bill that they do so. Under the bill, a legislative instrument could be
compulsorily imposed on communities without sunset dates, participant criteria
or community agreement. The committee has previously noted that it is generally
preferable that safeguards, or at least a general legislative requirement for
them, be included in primary, rather than delegated, legislation. As set out in
the initial analysis, the bill would permit 'trials' to be rolled out or
extended through legislative instruments without existing safeguards. The
removal of key parameters of the trial from the primary legislation, including
the number of participants and the trial end date, raises significant concerns
as to whether the measures are proportionate to the objective being sought.
While the minister's response further states that the bill 'does not
indefinitely extend' the cashless debit card program, it appears to be the
effect of the proposed legislation that the program would be able to be
extended for a potentially undefined period through particular legislative
instruments. In this respect, there is also a risk that the legislative
instruments imposing the trial may not be compatible with human rights. If the
bill is passed, the committee will assess the human rights implications of the
instruments once they are received.
2.270
As to whether affected communities have been adequately consulted in
relation to the extension of the trial, the minister's response states:
All decisions around the extension of the Cashless Debit Card
have been made and will continue to be made in close partnership with community
leaders. Engagement with community members and leaders has been ongoing,
informally and formally (through the independent evaluation) in all locations
to help Government better understand local needs and gauge interest in the
extension of the program. Topics of consultation include objectives; benefits
of the program in terms of community safety/wellbeing for vulnerable people;
the identification of gaps and possible support services; the role of community
bodies; the evaluation; and differences between the Cashless Debit Card and
Income Management arrangements.
2.271
The further information indicates that engagement with community members
is ongoing to allow the government to 'gauge interest in the extension of the
program'. It is welcome that consultation with communities on the operation of
the scheme is continuing and that, as stated, decisions will be made in
partnership with community leaders. However, it remains unclear whether
community members in existing trial locations have been adequately consulted —
or support — the extension of the scheme. It is a further concern that no
requirements to undertake consultation and secure community agreement are set
out in the bill. It would therefore appear to be possible that the trial could
be imposed or extended without community consultation or agreement.
2.272
In response to whether the use of the cashless debit card could be
restricted to instances where there has been an assessment of an individual's
suitability to participate in the trial, the minister's response states:
While Income Management, the Australian Government's other
welfare quarantining program, is targeted towards vulnerable individuals, the
Cashless Debit Card is testing whether restricting the amount of cash in a
community can reduce the overall social harm caused by welfare-fuelled alcohol,
gambling and drug misuse at the individual and community level. The community
wide impacts of these harmful goods mean that the Cashless Debit Card program
is most effective when a majority of people in a community who receive a
welfare payment participate in the program. In current sites, the program
applies to all people who receive a working age welfare payment in Cashless
Debit Card locations, with the exception of Age Pension and Veterans' Pension
recipients. However, people receiving these two payments may volunteer to
participate. People who earn money from other sources, such as paid work, are
also able to volunteer.
The Cashless Debit Card is not designed to operate as a
punitive measure. For people who do not spend a large proportion of their money
on alcohol, gambling or drugs, the Cashless Debit Card has very little impact
and will ensure that those receiving welfare payments and their children will
have money available for life's essentials.
Another key difference between Income Management and the
Cashless Debit Card is that Cashless Debit Card participants are able to use
their card to purchase anything other than alcohol and gambling products,
providing greater consumer choice to participants. Using a card that is
delivered by a commercial provider also means less involvement from government
employees. This helps people to engage in the mainstream financial market;
encouraging improved financial capability and removing interference from
government in people's lives.
2.273
While part of the rationale for the approach appears to be 'testing' the
effectiveness of the blanket imposition of the Cashless Debit Card on a
community, the further information from the minister does not directly address
why it is not possible to restrict the imposition of the cashless debit card to
instances where there has been an assessment of an individual's suitability and
consent to participate in the scheme. As stated in the initial analysis, in
assessing whether a limitation on human rights is proportionate, relevant
factors to consider include whether the measure provides sufficient flexibility
to treat different cases differently or whether it imposes a blanket policy
without regard to the circumstances of individual cases. The committee has
previously noted concerns of the impact of the card on individuals, including,
for example, in situations where a person would only be able to use cash in
order to purchase goods or services.[133]
2.274
Further, the minister's response states that the cashless debit card
program 'is most effective when a majority of people in a community who receive
a welfare payment participate'. However, no specific evidence or reasoning is
provided in relation to this assertion. This raises specific concerns that the
measure may not be the least rights restrictive method of achieving its
legitimate objective as required in order to be a proportionate limit on human
rights. In this respect, the human rights concerns in relation to income
management identified in the committee's 2016 Review remain relevant. In
particular, the committee recommended that 'income management should be imposed
on a person only when that person has been individually assessed as not able to
appropriately manage their income support payments'.[134]
Accordingly, serious doubts remain as to whether the measures in the proposed
legislation are the least rights restrictive way to achieve the stated
objectives.
Committee response
2.275
The committee thanks the minister for his response and has
concluded its examination of the proposed legislation.
2.276
The preceding analysis indicates that concerns remain as to
whether the trial is effective to achieve its stated objectives.
2.277
The analysis further indicates that, based on the information
provided, the measures may not be a reasonable and proportionate limitation on
human rights.
2.278
Accordingly, noting concerns raised by previous human rights
assessments of the trial and related concerns regarding income management
identified in the committee's 2016 Review of Stronger Future measures,
the measures may not be compatible with the right to social security, the right
to privacy and family and the right to equality and non-discrimination. If the
bill is passed, the committee will consider the human rights implications of
the legislative instruments once they are received.
Social Services Legislation Amendment (Welfare Reform) Bill 2017
Purpose |
Seeks to amend various acts
to: create a Jobseeker Payment to replace seven existing payments as the main
payment for people of working age from 20 March 2020 and replace other
payment types; remove the ability of Newstart Allowance and certain special
benefit recipients aged 55 to 59 to satisfy the activity test by engaging in
voluntary work for at least 30 hours per fortnight; remove certain exemptions
for drug or alcohol dependence; provide that a job seeker's Newstart
Allowance or Youth Allowance be payable from the date they attend their
initial appointment with their employment services provider; provide that job
seekers are not able to use drug or alcohol dependency as an excuse for
failing to meet their requirements; introduce a new compliance framework for
mutual obligation requirements in relation to participation payments;
establish a two year drug testing trial in three regions for 5,000 new
recipients of Newstart Allowance and Youth Allowance; enable certain
information obtained in the course of an administrative action to be used in
subsequent investigations and criminal proceedings; and to exempt two social
security laws from the operation of the Disability Discrimination Act 1992 |
Portfolio |
Social Services |
Introduced |
House of Representatives,
22 June 2017 |
Rights |
Social security; adequate
standard of living; equality and non-discrimination; privacy; protection of
the family; rights of children (see Appendix 2) |
Previous report |
8 of 2017 |
Status |
Concluded examination |
Background
2.279
The committee first reported on the Social Services Legislation
Amendment (Welfare Reform) Bill 2017 (the bill) in its Report 8 of 2017,
and requested a response from the Minister for Social Services by 28 August
2017.[135]
2.280
The minister's response to the committee's inquiries was received on
29 August 2017. The response, which also includes input from the Minister for
Employment, is discussed below and is reproduced in full at Appendix 3.
Nature of key rights engaged
2.281
The bill contains a number of schedules that impact on the
administration, qualification and receipt of social security.
2.282
These measures engage the right to social security and the right to an
adequate standard of living. The human rights assessment of the bill below
addresses individual measures that raise human rights concerns in relation to
these rights.
2.283
The right to social security recognises the importance of adequate
social benefits in reducing the effects of poverty and plays an important role
in realising many other rights. The right to an adequate standard of living
requires state parties to take steps to ensure the availability, adequacy and
accessibility of food, clothing, water and housing.[136]
2.284
Under international human rights law, Australia has obligations to
progressively realise the right to social security and the right to an adequate
standard of living using the maximum of resources available. Australia has a
corresponding duty to refrain from taking retrogressive measures, or backwards
steps, in relation to the realisation of these rights.
2.285
A retrogressive measure is a type of limitation on an economic, social
or cultural right and accordingly needs to be justified. A limitation on a
right may be permissible provided that it addresses a legitimate objective, is
effective to achieve (that is, rationally connected to) that objective and is a
proportionate means to achieve that objective. A legitimate objective must
address a pressing or substantial concern, and not simply seek an outcome
regarded as desirable or convenient.
2.286
Certain schedules of the bill also engage the right to privacy and the
right to equality and non-discrimination, which are set out below.
Schedules 1-7 – creation of a new jobseeker payment and cessation of other
payment types
2.287
Schedules 1-7 of the bill seek to create a new jobseeker payment which
will be the main working age social security payment and provide that a number
of other social security payments will cease. The bill proposes to cease
Newstart Allowance, Sickness Allowance, Wife Pension, Bereavement Allowance,
Widow Allowance, Widow B Pension and Partner Allowance.[137]
Compatibility of the measures with
the right to social security and the right to an adequate standard of living
2.288
The statement of compatibility acknowledges that the measures engage the
right to social security and refers to jurisprudence of the UN Committee on
Economic Social and Cultural Rights (UNCESR) explaining that:
[the UNCESCR] stated that there is 'a strong presumption that
retrogressive measures taken in relation to the right to social security are
prohibited under the Covenant.' The [UNCESCR] places a burden on the State
party that has introduced deliberately retrogressive measures to 'prove that
they have been introduced after the most careful consideration of all
alternatives and that they are duly justified...'[138]
2.289
The initial human rights analysis stated that, given the complexity of
the measures, it is not clear whether they are retrogressive. For example, in
relation to the creation of the Jobseeker Payment and the cessation of other
payment types, the statement of compatibility states that over 99.9 percent of
social security recipients will continue to be eligible for income support.
These recipients will transition from the payment types that are ceasing to the
Age Pension, the Jobseeker Payment or Carers Payment with a range of
transitional arrangements provided as safeguards.[139]
It appears that it is intended that most current social security recipients
will be transitioned onto new payment types with the exception of some
recipients residing overseas.[140]
The explanatory memorandum explains that the creation of the Jobseeker Payment
'will have the same basic qualification, payability and rate as existing
Newstart Allowance, however, the payment will be broader in scope than Newstart
Allowance'.[141]
2.290
The initial analysis also stated that, given that the qualification
requirements and the amount payable to social security recipients varies
between types of payments, the question arises as to whether certain
individuals may be worse off than under current arrangements. In other words,
there is some potential that these measures could have retrogressive aspects.
For example, following the death of a partner, subject to means and asset
testing, the Bereavement Allowance currently pays up to $803.30 per fortnight
for a period of 14 weeks. By contrast, current fortnightly payments for
Newstart Allowance for a single person are $535.60. With the cessation of the
Bereavement Allowance, the explanatory memorandum states that certain new and
existing social security recipients will become entitled to an additional one
off payment following the death of their partner instead of Bereavement
Allowance. It is not stated whether the amount payable would be equivalent to
the current amount payable under the Bereavement Allowance or whether
qualification for it will be the same.
2.291
Accordingly, the committee sought the advice of the minister as to:
-
whether the cessation of certain social security types could
result in reductions in the amount payable or qualification for any new or
existing social security recipients, or whether such payments will be
equivalent to the types of payments that are ceasing;
-
whether any new or existing social security recipients would be worse
off under the transitional arrangements;
-
what safeguards are provided in relation to the measures (for
example, to ensure that individuals continue to receive social security); and
-
if there are any reductions in the amount of social security
payable (retrogressive measures), whether they pursue a legitimate objective;
are rationally connected to their stated objective; and are a reasonable and
proportionate measure for the achievement of that objective.
Minister's response
2.292
The minister provided a useful and detailed response to the committee's
questions. In relation to whether the cessation of certain social security
types could result in reductions in the amount payable or qualification for any
new or existing social security recipients, the minister's response states:
The cessation of Newstart Allowance will not result in
reductions in the amount payable to recipients or impact on qualification. All
existing Newstart Allowance rules and rates will be rolled into the JobSeeker
Payment.
The cessation of Widow B Pension will not result in
reductions in the amount payable to recipients. The payment has been closed to
new entrants since 20 March 1997 so ceasing the payment does not impact
qualification. Existing recipients will transition to Age Pension which is paid
at the same rate as Widow B Pension.
The cessation of Partner Allowance will not result in
reductions in the amount payable to recipients. The payment was closed to new
entrants on 20 September 2003 therefore ceasing the payment does not impact
qualification. Existing recipients will transition to Age Pension. Partner
Allowance is paid at the lower allowance rate and therefore recipients will
receive a payment increase when they transition to Age Pension.
The cessation of Wife Pension may result in reductions
to the amount payable to a small number of recipients. Wife Pension has been
closed to new entrants since 1 July 1995 so ceasing the payment does not impact
qualification. On the implementation date there will be around 7,750
recipients:
-
Around 2,250 will transition to
Age Pension and 2,400 will transition to Carer Payment. Age Pension and Carer
Payment are paid at the same rate as Wife Pension so these recipients will not
experience any reduction in assistance.
-
Around 2,900 Wife Pension
recipients will transition to JobSeeker Payment. JobSeeker Payment will be paid
at the lower allowance rate. However, transitional arrangements described in
the Explanatory Memorandum will ensure that these recipients do not experience
a nominal reduction in their payment rates.
-
Around 200 Wife Pension recipients
residing overseas will no longer be eligible for a social security payment.
These recipients are under Age Pension age and would not be eligible for either
another payment under an international agreement or a portable payment. The
implementation date of 20 March 2020 will allow these recipients to return to
Australia where they can continue to receive social security payments, or
adjust to their new circumstances by obtaining employment.
The cessation of Widow Allowance will not result in
reductions to the amount payable existing to Widow Allowance recipients. Widow
Allowance will close to new entrants on 1 January 2018. Existing Widow
Allowance recipients will gradually transition to Age Pension by 1 January 2022
as they reach Age Pension age. Widow Allowance is paid at the lower allowance
rate so recipients transitioning to Age Pension will experience an increase in
their payment rates. In relation to new recipients:
-
Widow Allowance is only open to
women over 50 born before 1 July 1955 who are no longer partnered and have
become widowed, divorced or separated since turning 40 years of age, and have
no recent workforce experience. All those who could be eligible would have
reached Age Pension age by 1 January 2022.
-
Between 1 January 2018 and 1
January 2022, women who would otherwise have been eligible for Widow Allowance
will be able to claim Newstart Allowance. As a result of the Newstart Allowance
upper age limit (Age Pension age), recipients will have to claim Age Pension
when they reach Age Pension age.
The cessation of Sickness Allowance may result in
small reductions to the amount payable to some recipients. Sickness Allowance
criteria will be rolled into JobSeeker Payment so there will be no impact on
qualification for payment. Existing recipients will be gradually transitioned
to JobSeeker Payment. Sickness Allowance is paid at the same rate that
Jobseeker Payment will be paid, so recipients will not experience a reduction
in their base rate. However, Sickness Allowance automatically entitles a person
to the Pharmaceutical Allowance supplement ($6.20 per fortnight singles, $3.10
per fortnight partnered). In line with existing Newstart Allowance rules,
JobSeeker Payment recipients will be assessed to determine their eligibility
for Pharmaceutical Allowance. It is estimated that around 400 former Sickness
Allowance recipients will be ineligible for Pharmaceutical Allowance when they
transition to JobSeeker Payment as they will not meet the relevant criteria.
That is, up to 5 per cent of recipients are expected to have capacity to work
of 15 hours or more per week and will therefore not automatically qualify for
Pharmaceutical Allowance. They will be referred to an employment service
provider where they would enter a Job Plan and undertake suitable mutual
obligation activities. This represents less than 5 per cent of the Sickness
Allowance population on 20 March 2020.
The cessation of Bereavement Allowance will not result
in reduction in the amount payable to existing recipients on 20 March 2020. In
relation to new recipients:
-
Up to 960 people annually who
would have previously claimed Bereavement Allowance will now be able to claim
JobSeeker Payment or another income support payment. It is expected that the
majority will claim JobSeeker Payment.
-
As per existing Newstart Allowance
rules, JobSeeker Payment will have a more stringent means test than Bereavement
Allowance. An estimated 30 bereaved people per year will not qualify for an
income support payment due to their income, assets or other circumstances, such
as age.
-
JobSeeker Payment will be paid at
the allowance rate compared to Bereavement Allowance which is paid at the
pension rate. However, JobSeeker Payment will provide a triple upfront payment
to newly bereaved people to assist with the high upfront costs associated with
the death of a partner. While the overall assistance provided on JobSeeker
Payment will be less than that currently available on Bereavement Allowance
over a 14 week period, JobSeeker Payment will provide a substantially higher
level of support in the first fortnight. Additionally, many recipients leave
Bereavement Allowance before the end of the 14 week bereavement period, so
JobSeeker Payment recipients would receive a higher level of overall assistance
than some shorter-term Bereavement Allowance recipients due to the higher
upfront payment on the JobSeeker Payment.
-
If a person is eligible for
another payment such as Parenting Payment Single which is paid at the pension
rate, they will receive that payment with a 14 week exemption from mutual
obligations, consistent with existing provisions in the Bereavement Allowance.
2.293
This information usefully indicates that in the majority of cases the
cessation of certain categories of social security payments will not result in
a reduction in the level of payments. This means that for most social security
recipients the measures are not retrogressive (that is, a backward step in the
level of attainment of social security).
2.294
The minister's response further clarifies that transitional arrangements
will only apply to existing social security recipients. In relation to whether
any existing social security recipients would be worse off under the
transitional arrangements, the minister's response states '[a]s a result of the
transitional arrangements, over 99.9 per cent of existing recipients will be
the same or better off'. It appears from the information provided that, of
those social security recipients that will be worse off, the impact may be
relatively limited.
2.295
In response to the committee's question as to what safeguards are provided
in relation to the measures, the minister's response states that there are a
range of safeguards to ensure that existing payment recipients will be
transferred 'to the income support payment best suited to their circumstances'.
In this respect, the minister's response outlines the following safeguards in
respect of existing recipients:
-
people over Age Pension age will
be deemed to satisfy the residency requirements for Age Pension, regardless of
actual qualifying residence;
-
recipients of Widow B Pension and
Wife Pension will retain their existing exemptions from Australian Working Life
Residence requirements;
-
people aged 55 years or older
transferring to JobSeeker Payment would be exempt from compulsory mutual
obligation requirements but would be able to opt in to employment services;
-
recipients aged under 55 years
with significant barriers to employment will be assisted by jobactive (Stream
C) or Disability Employment Services to re-enter the workforce;
-
JobSeeker Payment will include
mutual obligation exemptions for newly bereaved recipients; and
-
Wife Pension recipients who
transfer to JobSeeker Payment will continue to receive the Pensioner Concession
Card while in receipt of a transitional rate of Wife Pension.
2.296
The minister's response further outlines a range of additional
safeguards to help 'to ensure future claimants are not precluded from accessing
social security when they need it':
-
JobSeeker Payment eligibility
criteria will be broader than current Newstart Allowance criteria to provide
access for persons who have temporarily stopped working or studying to recover
from illness or injury;
-
exemptions from the ordinary
waiting period, the liquid assets test waiting period, the income maintenance
period and the seasonal work preclusion period will apply to newly bereaved
claimants of Job Seeker Payment and Youth Allowance;
-
Job Seeker Payment and Youth
Allowance will provide additional bereavement assistance for persons who have
recently experienced the death of their partner; and
-
women who claim Newstart Allowance
from 1 January 2018 who would have otherwise qualified for Widow Allowance will
be exempted from the activity test requirements.
Schedule 8 of the Social Security Legislation Amendment
(Welfare Reform) Bill 2017 also provides for the Minister for Social Services
to make rules of a transitional nature in relation to the JobSeeker Payment
package of measures should they become necessary, for example, as a result of
an anomalous or unexpected consequence.
2.297
These matters indicate that, in a range of circumstances, there appear
to be adequate safeguards in place to assist to ensure that individuals are
able to access social security to meet basic necessities.
2.298
The minister's response acknowledges that the cessation of the Wife
Pension may amount to a retrogressive measure noting that there will be a
reduction in social security payments for some recipients. The minister's
response explains the scope of this limitation and why the minister considers
that it is permissible:
The creation of JobSeeker Payment will result in
approximately 2,900 Wife Pension recipients who transfer to JobSeeker Payment
receiving no nominal increase in payment until the rate of the JobSeeker
Payment equals or exceeds their frozen rate of Wife Pension. These recipients are
all under Age Pension age and in similar circumstances as males or some single
women of similar age who currently receive other activity-tested payments such
as Newstart Allowance. The Government expects that those who have capacity to
work, should be encouraged and supported to find work, and that this objective
should apply consistently to people of working age who are in similar
circumstances. Wife Pension is a dependency based payment that does not support
these objectives. Removing Wife Pension and transitioning Wife Pension
recipients under Age Pension age to the activity-tested JobSeeker Payment will
support partnered women of working age to find employment, reduce their welfare
dependence and improve their wellbeing. Pausing rate increases for these Wife
Pension recipients is considered justified to achieve consistent treatment of
people in similar circumstances in the longer term.
Around 200 Wife Pension recipients who are under Age Pension
age and living overseas are expected to no longer be eligible for an Australian
Government payment unless they return to reside in Australia. This loss of
payment is consistent with the above-mentioned objectives and the
residence-based nature of Australia's social security system. The Government
expects that people have some reasonable connection to the Australian economy
and society before being granted an Australian income support payment and this
is reflected in residence requirements for payments including Age Pension,
Disability Support Pension and Newstart Allowance.
Wife Pension was introduced in 1972 and is payable to the
female partner of a male recipient of either Age Pension or Disability Support
Pension. Wife Pension was granted without any other eligibility criteria or
mutual obligations. The payment no longer reflects social and economic norms
regarding women's workforce participation or government expectations in
relation to income support.
While 200 overseas recipients under Age Pension age are
expected to cease income support, their partners will continue to receive their
Age Pension or Disability Support Pension. Additionally, a large proportion
(over 75 per cent) of the 200 Wife Pension recipients overseas currently
receive a part-rate of payment, suggesting they already have access to other income
sources besides Australian income support. The implementation date of 20 March
2020 will allow these recipients to return to Australia where they can continue
to receive social security payments, or adjust to their new circumstances by
finding new or further employment.
2.299
In light of the information provided it appears that the measures are
likely to be a proportionate limitation on the right to social security.
Committee response
2.300
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.301
The preceding analysis indicates that the measures are likely to
be compatible with the right to social security.
Schedule 10 – Start date for Newstart and Youth Allowance payments
2.302
Under current RapidConnect requirements, persons claiming Newstart
Allowance or Youth Allowance, unless otherwise exempt, are required to attend
an interview with an employment services provider before their income support
is payable.[142]
Payment is not made until claimants attend such an interview but it is
currently backdated to the date on which the claim was made. In some cases,
this may be the date of first contact with the Department of Human Services.
2.303
Persons claiming Newstart and Youth Allowance, unless exempt, are also
currently required to serve a waiting period of 7 days before payment is made,
usually beginning from the date of claim.[143]
2.304
Schedule 10 of the bill seeks to amend the Social Security
(Administration) Act 1999 (Social Security Administration Act) so
that payments for individuals who are claiming Newstart Allowance or Youth
Allowance, and are subject to RapidConnect, will be calculated from the day the
individual attends their initial appointment with an employment services
provider, instead of the earlier date the claim was made.[144]
Compatibility of the measure with
the right to social security and right to an adequate standard of living
2.305
The initial analysis stated that the right to social security and the
right to an adequate standard of living are engaged and limited by this
measure.
2.306
The analysis noted that by proposing to only backdate Newstart and Youth
Allowance payments to the date an applicant attends an initial interview with a
job services provider, instead of the earlier date of claim, the measure
appears to reduce the initial amount payable to the applicant. Accordingly, the
measure may impact on an individual's ability to afford the necessities to
maintain an adequate standard of living.
2.307
By deferring the start day for payments to some applicants under
Newstart and Youth Allowance, the proposed measure would appear to constitute a
backwards step in the realisation of these rights and, accordingly, as a matter
of international human rights law this limitation needs to be justified.
2.308
While acknowledging that the measure engages the right to social
security and the right to an adequate standard of living, the statement of
compatibility sets out that any limitations on these rights are 'necessary and
proportionate' to achieving 'the legitimate policy objective of encouraging
greater workforce participation and self-support for job seekers who have no
significant barriers to employment'.[145]
2.309
While it was noted that this may be considered a legitimate objective
for the purposes of international human rights law, limited information is
provided in the statement of compatibility as to whether the measure is
effective to achieve the stated objective and is a proportionate means of doing
so.
2.310
At present, payment of Newstart and Youth Allowance, though backdated,
is not made until the claimant (unless exempt) attends an interview with a job
services provider. Therefore, it was noted that an incentive to connect with a
job services provider would appear to already exist. The statement of
compatibility does not explain why this existing measure is inadequate in
encouraging Newstart and Youth Allowance claimants to connect promptly with
their job services provider. Without such detail, it was not clear that the
proposed measure is the least rights restrictive way of achieving the stated
objective.
2.311
The statement of compatibility sets out some information which may be
relevant to the proportionality of the measure. This includes that the measure
would not apply to job seekers who are exempt from RapidConnect, including
disadvantaged job seekers, and that the secretary may take account of
individual circumstances when a claimant fails to attend an interview to
determine the start day for payment. In particular, the statement of
compatibility notes that if an appointment with a job services provider is not
available within two business days, payment is backdated to the date on which
the original requirement to attend an interview was made.[146]
2.312
However, it is unclear from the statement of compatibility what time
period exists between the date a claim for payment is made and the date on
which the requirement to attend an interview is imposed. Nor is it stated how the
proposed measure interacts with the 7 day Ordinary Waiting Period for
claimants, and whether back pay or the length of the waiting period is affected
in this context. Accordingly, it is not clear how many days a claimant may have
to wait from the original date of claim to the start day for payment or the
maximum period of time a person may go without back pay. This information is
necessary to determine the extent to which a job seeker's initial payment would
be affected by this measure or the extent of the limitation on the right to social
security and the right to an adequate standard of living.
2.313
The committee therefore sought the advice of the minister as to:
-
how the measure is effective to achieve (that is, rationally
connected to) the objective; and
-
how the limitation is a reasonable and proportionate measure to
achieve the stated objective (including why existing measures are insufficient
to achieve the stated objective of the measure, the existence of relevant
safeguards and the period of time a person may be required to go without payment
or back pay).
Minister's response
2.314
In relation to how the measure is effective to achieve the stated
objective 'of encouraging greater workforce participation and self-support for
job seekers who have no significant barriers to employment', the minister's
response states that:
By being connected more quickly to employment services, job
seekers are more readily able to access assistance to build their skills and
experiences and help them find a job faster.
2.315
The minister's response provides some information that indicates that existing
measures may be ineffective to achieve the stated objective. For example, the
response states that, at present, over one third of job seekers wait longer
than two days to connect with a job services provider.
2.316
Some further information is also provided that is relevant to the
proportionality of the measure. In particular, the minister's response explains
that booking an initial interview with the Department of Human Services, at
which the claimant is then referred to an appointment with a job services
provider, forms part of the process for the claimant when submitting an online
claim for Newstart or Youth Allowance. The response states that an appointment
with the department is 'usually' available within two days from the date of the
initial claim and that the department 'monitors the availability of
appointments so the interview can be conducted in a timely manner'.
2.317
These processes for booking a timely initial interview with the
department may be capable of addressing potential concerns about the period of
time a person may be without payment in most cases. It is also relevant to the
proportionality of the measure that the period of time a person may be going
without payment will, under usual circumstances, be fairly short. However, it
is noted that in some cases, it appears claimants may wait longer than two days
before an appointment with the Department of Human Services is available. As
how long a claimant may have to wait from the initial date of claim to the
start day for payment remains imprecise, this could potentially give rise to
concerns in some circumstances.
2.318
As noted in the initial analysis, the statement of compatibility
outlines a relevant safeguard in that, if an appointment with a job services
provider is not available within two business days, the payment is backdated to
the date on which the original requirement to attend an interview was made.
However, no information is provided in the minister's response as to
legislative safeguards that exist in situations where an appointment with the
Department of Human Services — at which the requirement to attend an
appointment with a job services provider is imposed — is not available within
two days of the date of claim. Accordingly, the effectiveness of the department's
processes in regard to ensuring timely appointments for claimants appear to be
an important factor to ensure that the limitation is proportionate.
2.319
In relation to how the measure interacts with the 7 day Ordinary Waiting
Period for claimants, the minister's response states:
The intent of Schedule 10 is that the Ordinary Waiting Period
will apply in the same way to job seekers who are subject to RapidConnect and
to job seekers who are not subject to RapidConnect. For those job seekers
subject to Schedule 10, but who are also required to serve an Ordinary Waiting
Period, it would be served concurrently with time taken to connect with
employment services. This ensures that job seekers who are subject to
RapidConnect and an Ordinary Waiting Period will not have to wait longer to
receive their payment than job seekers who are not subject to RapidConnect.
2.320
This information clarifies that the Ordinary Waiting Period for
claimants subject to RapidConnect will not commence (and expire) at a later
date than for claimants not subject to this measure. It is noted that this was
not clear in the bill as originally proposed but has now been reflected in
proposed amendments to Schedule 10.[147]
The fact that these periods of non-payment are to be served concurrently also assists
the proportionality of the measure. Accordingly, the measure appears to be a
proportionate limitation on the right to social security and the right to an
adequate standard of living.
Committee response
2.321
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.322
In light of the information provided, the committee notes that
the measure is likely to be compatible with the right to social security and
the right to an adequate standard of living. However, the committee notes that
this will be subject to how the department's processes for appointments work in
practice in order to ensure that the limitation is proportionate.
Schedule 12 – Mandatory drug-testing trial
2.323
Schedule 12 establishes a two year trial of mandatory drug-testing in
three regions, involving 5,000 new recipients of Newstart Allowance and Youth
Allowance. New recipients will be required to acknowledge in the claim for
Newstart Allowance and Youth Allowance that they may be required to undergo a
drug test as a condition of payment, and will then be randomly subjected to
drug testing.
2.324
A 'drug test' is defined in proposed section 23(1) as follows:
drug test , in relation to a person, means a
test that:
(a) is carried out:
(i) directly or indirectly under a
contract with the Commonwealth for the carrying out of the test; and
(ii) in accordance with applicable
provisions (if any) of the drug test rules; and
(b) is 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
2.325
A 'testable drug' means:
- methamphetamine; or
- methylenedioxy-methamphetamine; or
- tetrahydrocannabinol; or
- opioids; or
- another substance prescribed by the drug test rules for
the purposes of this definition.
2.326
Recipients who test positive will then be subject to income management
(including the use of a cashless welfare card) for 24 months and be subject to
further random tests. If a recipient tests positive to a subsequent test, they
will be required to repay the cost of these tests through reduction in their
fortnightly social security payment. This may be varied due to hardship.
Recipients who test positive to more than one test during the 24 month period
will be referred to a contracted medical professional for assessment.[148]
If the medical professional recommends treatment, the recipient will be
required to complete certain treatment activities, such as counselling, rehabilitation
and/or ongoing drug testing, as part of their employment pathway plan.[149]
2.327
Recipients who do not comply with their employment pathway plan,
including drug treatment activities, would be subject to a participation
payment compliance framework, which may involve the withholding of payments.
Recipients would not be exempted from this framework if the reason for their
non-compliance is wholly or substantially attributable to drug or alcohol use.[150]
2.328
Recipients who refuse to take the test will have their payment cancelled
on the day they refuse, unless they have a reasonable excuse. If they reapply,
payment will not be payable for 4 weeks from the date of cancellation and they
will still be required to undergo random mandatory drug-testing.[151]
Compatibility of the measure with
the right to privacy
2.329
The right to privacy includes the right to protection against arbitrary
or unlawful interference with a person's privacy, family, home or correspondence.
As acknowledged in the statement of compatibility,[152] the
right to privacy extends to protecting a person's bodily integrity against
compulsory procedures such as drug testing. As outlined in the initial human
rights analysis, drug testing is an invasive procedure and may violate a
person's legitimate expectation of privacy. Further, the measure requires the
divulging of private medical information to a firm contracted to conduct the
drug testing. A person may need to provide evidence of their prescriptions
and/or medical history to the company to avoid false positives that, for
example, detect prescribed opioids. Finally, the use of a card in purchasing
essential goods after a person's benefit is quarantined will disclose that a
person receives quarantined social security payments. On these bases, the
measure engages and limits the right to privacy.
2.330
A limitation on the right to privacy may be permissible where it is
pursuant to a legitimate objective, is rationally connected to (that is,
effective to achieve) that objective, and is proportionate to achieve that
objective. In assessing whether a measure is proportionate, some of the
relevant factors to consider include whether the measure provides sufficient
flexibility to treat different cases differently or whether it imposes a
blanket policy without regard to the merits of an individual case, whether
affected groups are particularly vulnerable, and whether there are other less
restrictive ways to achieve the same aim.
2.331
The statement of compatibility states that the objective of the drug
testing trial is twofold:
-
[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]
-
[to] provide new pathways for
identifying recipients with drug abuse issues and facilitating their referral
to appropriate treatment where required.[153]
2.332
In support of the need for the measure, the statement of compatibility
referred to statistics indicating that a greater number of people are using
drug and alcohol use as an exemption to mutual obligation requirements.[154]
The statement of compatibility argues that the drug testing measure will help
direct people into treatment before the drug use becomes too severe and a
barrier to employment.[155]
2.333
The initial analysis noted that the statement of compatibility asserts
that there is, but does not provide evidence of, a pressing social need to
address the use of welfare payments to purchase drugs or support substance
abuse. However, on the basis of the information and arguments presented, the
measure can be understood as pursuing the objectives of the early treatment of
harmful drug use to prevent drug dependency, and addressing barriers to
employment created by drug dependency. The previous analysis stated that these
are likely to constitute legitimate objectives under international human rights
law. There are, however, serious concerns as to whether the measure is
effective to achieve, and proportionate to, these legitimate objectives.
2.334
The initial analysis identified that, first, the measure appears to be
overly broad. The randomised drug test is not reliant on any reasonable
suspicion that a person has a drug abuse problem. Any selected person is then
made to disclose medical information to the private firm contracted to conduct
the testing, and subjected to an invasive medical procedure. If they test
positive once, even if it was the first time they had used an
illicit drug or it was a false positive, their payments are quarantined for
two years, during which period they must use a cashless welfare card.[156]
This card will immediately disclose that a person is receiving a welfare
payment whenever they use it. Yet, the single use of the drug is unlikely to
constitute a barrier to employment, nor necessarily lead to dependence.[157]
2.335
Second, it is unclear whether there will be adequate privacy safeguards
as to the medical and drug-related information disclosed to a private provider
of drug tests. The statement of compatibility states:
This trial will be subject to the existing safeguards in the Privacy
Act 1988 and the confidentiality provisions in the Social Security
(Administration) Act 1999 which protect the collection, use and disclosure
of protected information. A joint Privacy Impact Assessment by the Department
of Human Services and the Department of Social Services is being conducted for
this measure and will be submitted to the Office of the Australian Information
Commissioner to ensure implementation of the measure minimises privacy law
risks.[158]
2.336
The existing safeguards in the Privacy Act 1988 and the Social
Security Administration Act may not be sufficient in this context to establish
the proportionality of the limitation. For example, it appears that they can
allow the Department of Human Services to disclose the fact of a person's
positive drug test to law enforcement, state welfare agencies or the Department
of Immigration and Border Protection. The risk of prosecution, visa
cancellation or loss of child custody may prevent people from attempting to
access Newstart or Youth Allowance payments, causing destitution. Further, it
appears that they may not prevent the Department of Human Services or a private
contractor from disclosing information regarding a particular welfare recipient
to the public to correct that person's criticism of the trial.[159]
2.337
A question also arises as to how long drug test samples will be
retained. As noted in the initial analysis, the taking and retention of bodily samples
for testing purposes can contain significant personal information. International
jurisprudence has noted that genetic information contains 'much sensitive
information about an individual' and given the nature and amount of personal
information contained in cellular samples 'their retention per se must be
regarded as interfering with the right to respect for the private lives of the
individuals concerned'.[160]
2.338
Rules that can be made by the minister pursuant to proposed section 38FA[161]
of the Social Security Administration Act as well as the preparation of a
Privacy Impact Assessment, may result in further safeguards which would address
concerns regarding retention and disclosure of drug test samples. However, no
detail has been provided as to the intended content of the rules.
2.339
The previous analysis also identified that the trial may 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. For
example, in relation to drug testing in the United States jurisdiction of
Florida, only 2.6% of welfare recipients tested were found to have used drugs,
most commonly marijuana. This trial may target areas with a higher percentage
of drug users which may identify a higher number of people.[162]
2.340
Fourth, there appear to be a variety of less rights restrictive methods
to achieve the objective of providing new pathways for referral to treatment of
those who have or are likely to develop substance abuse issues, such as
increasing the availability and promotion of treatment options for those with
drug and alcohol dependency. This was not addressed in the statement of
compatibility.
2.341
The committee therefore sought further advice from the minister as to
how the measure is effective to achieve and proportionate to its objectives,
including:
-
whether overseas experience
indicates that this trial will be effective to achieve its objectives;
-
whether there will be a process
to apply to remove income quarantining measures if no longer necessary or if
special circumstances exist;
-
whether there will be additional
safeguards in place in relation to the disclosure of drug test results,
particularly to law enforcement, immigration authorities, other agencies and
the public and the nature of those safeguards; and
-
the availability of less rights
restrictive measures to achieve the objectives of the trial.
Minister's response
2.342
In relation to whether overseas examples indicate that the proposed
trial will be effective to achieve its objectives, the minister's response
acknowledges that international evidence on the effectiveness of drug testing
of welfare recipients is limited, as many overseas experiences have not been
evaluated comprehensively or because the results are not comparable to the
measures introduced by the bill. The minister further states that, to the best
of the government's knowledge, the model of combining drug testing with other
interventions such as income management has not been implemented in any other
country. The minister points to the benefits of mandatory treatment through
evaluations of Australian drug courts, and the trials of the Cashless Debit
Card, as evidence of the effectiveness of income quarantining.
2.343
However, previous substantive evaluations of compulsory income
management regimes in Australia have demonstrated that income management may be
effective when it is applied to participants after considering their individual
circumstances and consensually, rather than where it is applied coercively and
compulsorily.[163]
It is therefore not evident that the measure, which is not targeted to
appropriate individual cases or consensual, is effective to achieve its
objectives.
2.344
As to whether there will be a process to apply to remove income
quarantining measures if no longer necessary or if special circumstances exist,
the minister's response notes that, following concerns raised by the Senate
Standing Committee for the Scrutiny of Bills,[164]
amendments have been introduced whereby the Secretary must determine that a
person is not subject to the income management regime if the Secretary is
satisfied that being subject to the regime poses a serious risk to the person's
mental, physical or emotional wellbeing. The minister explains that this is
designed to balance the objectives of Income Management as part of the drug
testing trial and the needs of individuals whose wellbeing is at serious risk.
Further, the minister explains that drug test providers may withdraw or revoke
a referral to Income Management if they become aware of circumstances that lead
them to believe that the positive result which triggered the referral is not
valid; for example, the job seeker provided evidence of legal medications which
could have caused this result. The minister also explains that the decision
that a person be subject to income management is able to be appealed in
accordance with existing review and appeal provisions in the Social Security Administration
Act.
2.345
The amendments introduced following the initial human rights analysis
that provide that the Secretary must (as opposed to may) determine
a person not be subject to income management if the regime would pose a risk to
the person's health and well-being alleviates some of the concerns raised in
the initial human rights analysis as to the proportionality of the measure. So
too does the explanation of the affected person's appeal rights, and the
clarification that the drug test provider may withdraw or revoke a referral to
income management in certain circumstances. However, there remains only limited
circumstances in which a person may be removed from the income management
regime within the 24 month period, even where that person may have only tested
positive once during that period or it was the first time they had used an
illicit drug. Nor is any information provided as to how the Secretary
determines whether they are satisfied that a person being subject to the regime
would pose a 'serious risk' to the person's mental, physical or emotional
wellbeing. For example, no information is provided as to what constitutes a
'serious' risk or whether any safeguards exist (such as the requirement that
the Secretary's satisfaction must be 'reasonable'). It is not clear, based on
the information provided, that the limited circumstances in which the Secretary
may determine a person not be subject to income management provide a sufficient
safeguard against arbitrary application. In this respect, the committee has
previously raised concerns where compulsory income management provisions
operate inflexibly, as it raises the risk that the regime will be applied to
people who do not need assistance managing their budget.[165]
2.346
In response to whether there will be additional safeguards in place in
relation to the disclosure of drug test results, the minister's response
identifies that existing privacy and confidentiality laws, including in the Privacy
Act 1988 and the Social Security Administration Act, provide that protected
information about a person can only be disclosed in limited circumstances. The
minister further refers to the exposure draft to the Social Security (Drug
Test) Rules 2017 (the rules), tabled at the Senate Standing
Committee on Community Affairs' inquiry into the bill on 30 August 2017,[166]
and explains that these rules, if enacted, will provide additional safeguards
to ensure the operation of the drug testing and the conduct of the drug testing
provider is consistent with the requirements under the Privacy Act 1988
and the confidentiality provisions in the Social Security Administration Act.
2.347
As to the disclosure of test results, the minister's response states:
Disclosure of test results will only occur in accordance with
the existing privacy laws and the Drug Test Rules. Test results will not be
shared with police, immigration or other authorities, specifically as part of
this trial.
Under the existing confidentiality provisions in the Social
Security (Administration) Act personal information can be disclosed to the
police or state authorities in very limited circumstances where it has been
certified as being in the public interest. This includes in relation to certain
offences, to prevent or lessen a threat to the life, health or welfare of a
person, or for child protection purposes. For example, where a recipient
threatens the health, safety and welfare of their child, the Secretary can
release relevant information to the appropriate authorities in order for these
concerns to be investigated and addressed as necessary. These processes will
remain in place. Information collected as part of the drug test testing would
only be disclosed where relevant and necessary under these processes. This
information will not be shared routinely as part of the trial itself.
2.348
The exposure draft of the rules sets out detailed procedures for the
conduct of the drug tests, the handling of samples, the keeping of records of
samples and the information that must be provided to the Secretary. This
includes a requirement that samples be destroyed in specified timeframes,
namely 13 weeks from the day a positive result was notified to the Secretary or
the end of the trial (whichever is the earlier), or otherwise no later than 28
days after the day the result of the drug test was notified to the secretary.[167]
There are also provisions requiring samples or records to be kept in secure
locations unless destroyed in accordance with the rules.[168]
The rules also provide that drug tests must be conducted in a respectful manner
and 'in circumstances affording reasonable privacy to the drug test trial pool
member directed to undergo the test'.[169]
These rules address the concerns set out in the previous human rights analysis
regarding safeguards for retention of drug tests samples. However, it should be
noted that these rules were contained in an exposure draft and the minister has
expressly indicated that these rules may be subject to change following
consultation with the health, alcohol and other drug sectors. In the event the
bill is passed, the committee will consider the human rights compatibility of
the rules once they have been received.
2.349
The minister's response further clarified that test results will not be
shared with police, immigration or other authorities as part of the trial save
for limited circumstances set out in the Social Security Administration Act and
the Privacy Act 1988, namely, where the Secretary certifies that it is
necessary in the public interest to do so. The Social Security (Public
Interest Certificate) Guidelines (DSS) Determination 2015 sets out detailed
guidelines for the exercise of the Secretary's disclosure powers in this
respect. This includes, as summarised by the minister, disclosure where it
is necessary to prevent, or lessen, a threat to the life, health or welfare of
a person, or the enforcement of certain laws. It also includes disclosure for
other purposes, including where disclosure is necessary for research into
(including evaluation or monitoring of, or reporting on) matters of relevance
to a department that is administering any part of the family assistance law or
the social security law.[170]
This alleviates some of the concerns as to the adequacy of existing safeguards
presenting disclosure. However, some uncertainties remain, including whether,
for example, a person repeatedly testing positive for drugs would constitute a
basis on which the Secretary could certify disclosure on the basis it was
necessary to prevent, or lessen, a threat to the life, health or welfare of a
person. On balance, it appears that the limited circumstances in which
disclosure could occur may be compatible with this aspect of the right to
informational privacy, noting that the minister has emphasised that test results
will not be shared with police, immigration or other authorities as part of the
trial.
2.350
However, concerns remain over the other aspects of the measure that
raise issues in relation to the right to privacy, namely the invasive nature of
drug testing which may violate a person's right to bodily integrity, and the
concerns in relation to informational privacy where individuals subject to
income management pursuant to Schedule 12 would have that status immediately
disclosed to persons by reason of using the cashless welfare card.
2.351
The minister's response sets out the basis on which the minister
considers the measures to be a reasonable and proportionate limitation on the
right to privacy as follows:
There are some existing mechanisms in place which enable job
seekers to self-disclose to the Department of Human Services (DHS) or their
employment services provider that they have substance abuse or dependency
issues. For example, job seekers may disclose drug and alcohol abuse or
dependency as part of the Job Seeker Classification Instrument (a tool used to
determine a person's relative disadvantage in the labour market in order to
stream them to the appropriate employment services) and have this recorded as a
vulnerability indicator on their record. Job seekers may also provide medical
evidence of drug or alcohol dependency for the purposes of claiming an
exemption from mutual obligation requirements or as part of an assessment of
their capacity to work.
Data from the 2013 National Drug Strategy Household Drug Use
Survey reveals that 24.5 per cent of unemployed people reported recent drug
use. However, administrative data from the DHS system shows that less than two
per cent of job seekers in most locations self-disclose their drug or alcohol
dependency issues through these existing mechanisms.
This indicates that while some job seekers do already
disclose their drug abuse or dependency issues and receive support from DHS
and/or their employment services provider to address these issues, many do not.
This measure is designed to trial a new approach to
identifying job seekers with drug use issues and assisting them through Income
Management and referral to appropriate treatment to address their barriers to
employment and find work. As noted above, there will be a comprehensive
evaluation of all aspects of the trial.
To the extent that the measure at Schedule 12 engages or
limits the right to privacy, including by seeking to collect new forms of
protected information through drug testing, this is reasonable and proportionate
to the objective of better identifying job seekers who have drug abuse issues
that may be a barrier to work but have not necessarily self-disclosed these
issues in order to support them to address those barriers.
2.352
The minister's response in this respect appears to suggest that a
statistic relating to the level of drug use among unemployed people
(24.5%) demonstrates that the figure of 2.4% of persons who self-disclose drug
or alcohol dependency is low. However, as the figure of 24.5 percent cited only
relates to drug use, rather than drug dependency, the basis for
the minister's conclusion as to the low rate of self‑reporting of drug
dependency is not clear. The minister's response otherwise does not explain how
existing mechanisms are not sufficient, and does not expressly address whether
the measure is the least rights restrictive measure available. As noted in the previous
analysis, it is unclear, for example, why encouraging treatment and investing
in additional treatment and referral services is insufficient to encourage
recipients to self-report drug dependency and seek treatment. It is also
unclear why a positive test should automatically result in the application of
income management without an individual assessment of whether the person has a
drug dependency problem and whether income management is necessary or
appropriate in the person’s circumstances. Noting that limitations on the right
to privacy must be no more extensive than what is strictly necessary to achieve
the legitimate objective of the measure, the preceding analysis tends to
indicate that the measure is unlikely to be a proportionate limitation on human
rights.
Committee response
2.353
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.354
The preceding analysis indicates that the measure engages and
limits the right to privacy including the right to informational privacy and
the right to bodily integrity.
2.355
With respect to aspects of the right to informational privacy,
the bill appears to provide adequate safeguards with respect to the retention
and disclosure of drug test results, noting that the committee will consider
the human rights compatibility of the proposed Social Security (Drug Test)
Rules 2017 in the event the bill is passed.
2.356
However, overall with respect to the use of personal information
and the issues of bodily integrity, noting that limitations on this right must
be no more extensive than what is strictly necessary to achieve the legitimate
objective of the measure, the measure is likely to be incompatible with the
right to privacy. While the measure is aimed at a legitimate objective, there
appear to be other, less rights restrictive ways to achieve this objective.
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
2.357
The previous analysis assessed that the measure engages the right to social
security and an adequate standard of living in three ways. First, the measure
may result in a reduction in payments to cover the costs of positive drug
tests, or to penalise a person for failing to fulfil their mutual obligation
requirements. Second, the risk of the result of the test being disclosed to law
enforcement, immigration or other welfare authorities may cause people to avoid
applying for necessary welfare payments, causing destitution. Third, the
measure may impermissibly discriminate against those with substance addictions
which rise to the level of disability, as further discussed below under the
right to equality and non-discrimination.
2.358
A limitation on the right to social security and an adequate standard of
living may be permissible where it is pursuant to a legitimate objective,
effective to achieve that objective, and proportionate to that objective. As
discussed above, the objectives of early treatment of harmful drug use to
prevent drug dependency and addressing barriers to employment created by drug
dependency are likely to be legitimate objectives for the purposes of human
rights law. However, the initial analysis noted that there are serious concerns
regarding whether the measure is effective to achieve and proportionate to
those objectives.
2.359
The statement of compatibility states:
Income management does not reduce the total amount of income
support available to a person, just the way in which they receive it... Job
seekers placed on Income Management under this trial will still be able to
purchase items at approved merchants and pay rent and bills with their
quarantined funds... Evidence collected on Income Management in Western Australia
indicates that the program is improving the lives of many Australians. It has
given many participants a greater sense of control of money, improved housing
stability and purchase restraint for socially harmful products while reducing a
range of negative behaviours in their communities including drinking and
violence.[171]
2.360
While income management does not reduce the amount of income support
available, the committee has previously examined income management measures and
considered that those measures raise concerns, particularly where income
management was not voluntary or is inflexibly applied. [172]
This point is further examined in light of the minister's response at [2.372]
below.
2.361
Further, as noted in the previous analysis, it appears that once a drug
test is positive, the contractor may issue a notice to the Secretary that the
person should be subject to income management, even where the person requests a
second drug test. The mechanics of requesting a second drug test or providing
evidence of legal medication were unclear. It appears possible that a person
may be subject to income management for a period even where the result is
challenged and a retest scheduled.
2.362
The measure will require those who test positive to repay the cost of
the drug test over time, via deductions from their payments. Given the basic
rate of Newstart and Youth Allowance,[173]
there is a significant risk that repaying the cost of tests, even capped at a
10% reduction in the payment, will compromise a person's ability to afford
necessities to live and successfully look for work. The explanatory memorandum
refers to the existence of safeguards against hardship, specifically the power
of the Secretary to vary the rate of repayment where the person's circumstances
are 'exceptional', and the person would suffer 'severe financial hardship'.[174]
The existence of a safeguard is welcomed, however, the previous analysis stated
that the proposed test sets a very high threshold for the exercise of this
power. On its face, it appears the test may be difficult to meet even when
experiencing hardship. For example, it is questionable whether it would be
satisfied where many people are experiencing similar circumstances of severe
hardship, and therefore their individual circumstances are not considered to be
'exceptional'.
2.363
The initial analysis noted that the reduction in payments to penalise a
person for failing to undertake treatment activities as part of their
employment pathway plan may also severely compromise a person's ability to
afford basic necessities. The statement of compatibility reasons that
Australia's welfare system is founded on principles of mutual obligation, and
that 'it is reasonable to expect the job seeker to pursue treatment as part of
their Job Plan and be subject to proportionate consequences if they fail to do
so'.[175]
However, 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.[176]
In this respect, the statement of compatibility argues that there are
provisions in place to address individual vulnerabilities:
...the vulnerability of people and the impact of their
circumstances on their ability to comply with their mutual obligation
requirements is considered under social security law through reasonable excuse
and exemption provisions, and delegates have significant discretionary powers
regarding the application of compliance actions to consider the circumstances
of each individual case.[177]
2.364
However, other measures in the bill, as discussed below, seek to ensure
that drug addiction is not considered as a reasonable excuse or
exemption. Given the basic rate of Youth Allowance and Newstart; the
requirements to use up most of one's savings before becoming eligible for
Newstart; and these reasonable excuse and exemption measures, the initial human
rights assessment noted that it was unclear how a delegate's discretion will be
able to be used to prevent those addicted to drugs from being unable to afford
basic needs.
2.365
As stated above, should the regulations not adequately circumscribe the
disclosure of drug test results, including by private contractors, this measure
may also result in people in need of social security avoiding accessing
payments due to the fear of consequences such as prosecution, deportation or
loss of child custody. The risk that the measure may prevent people from
attempting to access Newstart or Youth Allowance payments, despite need, also
affects the proportionality of the measure.
2.366
Finally, as discussed above in relation to the right to privacy, the
statement of compatibility does not address the availability of less rights
restrictive measures to achieve the objectives of the measure. This is
particularly important in the context of the right to social security given the
strong presumption that retrogressive measures are prohibited under the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
that the state has the burden of proving that they were introduced after the
most careful consideration of all alternatives.[178]
It is relevant in this respect that it is not evident from the statement of
compatibility what proportion of social security recipients have a drug
dependency problem, as distinct from reported drug use as set out at paragraph
[2.351] above.
2.367
The committee therefore sought further advice from the minister as to
the effectiveness and proportionality of the measure including:
-
whether recipients will be
informed that they may request a retest or provide evidence of legal
medications, and how these processes will occur;
-
whether there is a mechanism to
challenge or review the imposition of income management;
-
whether a person can
successfully have their rate of repayment reduced where they would experience
severe hardship, but their circumstances are similar to others;
-
further detail as to how the
discretion of delegates will operate to consider the vulnerability of those
with drug dependencies and ensure that their payments are not reduced such that
they are unable to afford basic needs;
-
whether there will be limits
placed on the disclosure of drug test results to law enforcement, immigration
authorities or other agencies; and
-
whether there are less rights
restrictive methods to achieve the objectives of the measure.
Minister's response
2.368
The minister's response provides information about the process of drug
testing, including the existence of safeguards. The minister explains that job
seekers selected for the initial drug test will be notified at an initial
appointment that they can provide evidence of any legal medications or other
substances that they are taking which may affect the test result, that they may
request a re-test if they dispute the result of the test, and their review and
appeal rights in relation to any decision made under social security law
following a positive test result. Job seekers will also have a short pre-test
interview with the drug testing provider to help identify any legal medications
a job seeker may be taking which could interfere with the accuracy of the test
result, at which time job seekers may provide evidence of any legal medication
or substances they are taking. The minister's detailed response as to how
recipients will be informed of their right to request a re-test, to advise of
any legal medications that may affect the result, and of their review rights,
addresses the concerns expressed in the previous analysis as to this aspect of
the operation of the scheme.
2.369
As to the process of undertaking a re-test, the minister's response
explains 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. The minister clarifies that job
seekers will not have to pay the cost of the re-test if the result is negative,
but will have to repay the cost of the re-test if the result is again positive.
The minister explains the rationale for requiring repayment as 'designed to
discourage job seekers from requesting frivolous re-testing where they know
they have used illicit drugs'. The minister further explains:
This measure will only reduce a job seeker's income support
payment through the repayment of the cost of a positive drug test, other than
the initial test, or re-test. Recipients will not have to repay the cost of
their first positive test or the cost of any negative test result. This means
that recipients who test positive to their first test but then abstain from
further drug use and do not record any further positive results will experience
no reductions in payment.
The amount that will be repaid for the cost of a positive
drug test will be an amount set to represent the lowest cost of a test
available to the Government, and not the cost of the test they were given. The
exact costs of each of the drug tests to be used under the trial - saliva,
urine and hair -will depend on the drug testing provider contracted to deliver
the tests. The Government will approach the market to engage a suitable drug
testing provider or providers which represent best value for money to deliver
the required range of drug testing methods. Consideration will be given to
ensuring the drug testing methods used in the trial are
cost-effective.
If the job seeker is required to pay for the cost of a drug
test, the cost will be repaid through deductions from the job seeker's
fortnightly payment. To protect the job seeker from potential hardship,
deductions to pay for the cost of a test would be set at a small percentage of
the job seeker's fortnightly payment which will be determined by the Department
of Social Services Secretary, capped at no more than 10 per cent. This is
significantly lower than the standard rate for recovery of social security
debts, which is 15 per cent.
Job seekers will also be able to have their repayment
percentage reduced if required to ensure they are not placed in hardship. This
is consistent with existing arrangements for repayment of debts through payment
withholdings, and the process for application of this reduction will also be
the same as existing arrangements...
2.370
As explained in the previous analysis, for those who will face
reductions in their job seeker's income support payment (namely, those who have
requested a re‑test and tested positive, or those who test positive to
any test other than the initial test), in light of the basic rate of Newstart
and Youth Allowance, there is a significant risk that repaying the cost of the
tests, even capped at a 10% reduction in the payment, will compromise a
person's ability to afford necessities to live and successfully look for work.
Given the basic rate of Newstart and Youth Allowance, this concern remains
notwithstanding the recovery rate is lower than that of other social security
debts (which is 15 per cent).
2.371
Moreover, while the minister has clarified that job seekers will be able
to have their repayment percentage reduced to ensure they are not placed in
hardship, as explained in the previous analysis, on its face this safeguard may
be difficult to meet as it only applies where the person's circumstances are
'exceptional'.
2.372
Further, while the minister's response emphasises that income management
does not reduce the amount of payment a recipient receives but rather changes
the way they receive that payment, as set out in the previous analysis the
committee has previously examined income management measures and considered
them to raise concerns as a matter of international human rights law. The
committee has previously found that whilst compulsory income management did
reduce spending of income managed funds on proscribed items (such as alcohol),
it could increase welfare dependence, and interfere with a person's private and
family life'.[179]
Similarly, as explained in the previous analysis, the imposition of income
management for two years appears to be disproportionate to the objectives
pursued, particularly where inflexibly imposed on a person who may have used an
illicit drug, but does not have ongoing drug abuse issues.
2.373
As to disclosure of drug test results to law enforcement, immigration
authorities or other agencies, the minister's response states:
As noted above, disclosure of test results will only occur in
accordance with existing privacy laws, including in the Privacy Act and the
Social Security (Administration) Act. There will be further safeguards set out
in the Drug Test Rules under section 38FA in Schedule 12.
2.374
As discussed above in relation to the right to privacy, on balance it
appears these safeguards on disclosure may be adequate, noting however that
this is subject to the final content of the Drug Test Rules, which will be
considered by the committee once they have been made.
2.375
In relation to whether there are less rights restrictive means to
achieve the objective of the measure, the minister's response states:
As outlined above, the measure at Schedule 12 is designed to
trial a new approach to identifying job seekers with drug abuse issues and
assisting them to address their barriers to employment, including support
through Income Management to manage their payments to meet their priority
needs.
This trial will not remove access to social security
payments. Income Management does not change the amount received, just the way
it is received. Income Management is designed to better ensure that the
priority needs of vulnerable individuals (such as those with proven drug use
issues) are met, ensuring these individuals are better placed to maintain an
adequate standard of living.
As noted above, job seekers will not be required to repay the
costs of their first positive test; they will only be required to repay any
second or subsequent positive test. The use of repayment of these positive
tests is designed to test this as a means of deterring further drug abuse.
There are safeguards in place to ensure that the job seeker is only required to
repay an amount equivalent to the lowest cost option of any test used under the
trial and that the repayment percentage can be reduced (including to nil) in
cases of financial hardship.
2.376
For the reasons stated above and in light of the committee's earlier
findings about income management,[180]
concerns remain as to the use of income management as a mechanism to maintain
an adequate standard of living, notwithstanding that income management changes
the way in which payment is received and can be used rather than the amount.
Neither the statement of compatibility nor the minister’s response demonstrates
why less rights-restrictive alternatives are unavailable. Given the strong
presumption that retrogressive measures are prohibited under the ICESCR and
that the state has the burden of proving that measures were introduced after
the most careful consideration of all alternatives, from the information
provided it appears the measure is unlikely to be proportionate to the
legitimate objective of the measure.
Committee response
2.377
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.378
The preceding analysis indicates that the measure is likely to be
incompatible with the right to social security as it appears the measure is
unlikely to be proportionate to the legitimate objective of the measure.
Compatibility of the measure with
the right to equality and non-discrimination
2.379
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the International Covenant on Civil and Political Rights (ICCPR)
and article 2 of the ICESCR. It is further protected with respect to persons
with disabilities by Article 2 of the Convention on the Rights of Persons with
Disabilities (CRPD). The right applies to the distribution of welfare benefits
or social security.[181]
2.380
Article 26 of the ICCPR provides that all persons are equal before the
law and entitled to equal protection of the law without any discrimination. It
effectively prohibits the law from discriminating on any ground such as race,
sex, religion, political opinion, national origin, or 'other status'.
2.381
Where the person's drug use rises to that of dependence or addiction,
the person has a disability, which is not only considered an 'other
status'[182]
but is also protected from discrimination by the CRPD.[183]
As acknowledged in the statement of compatibility, there may also be a
disproportionate impact against Indigenous people, due to higher levels of drug
and alcohol use.[184]
Further, the drug-testing will not be entirely random, but based on the
development of a risk profile, which identifies risk factors to drug misuse.
2.382
As noted in the initial analysis, the possible interference of
prescription medications may also disadvantage those with communication
difficulties who fail to disclose their prescriptions and therefore are tested
as positive for illicit drugs.
2.383
To the extent that this measure affects those with drug and alcohol
dependencies and Indigenous people, the initial analysis stated that it engages
the right to non-discrimination. Under international human rights law, differential
treatment[185]
will not constitute unlawful discrimination if the differential treatment is
based on reasonable and objective criteria such that it serves a legitimate
objective, is effective to achieve that legitimate objective and is a proportionate
means of achieving that objective.
2.384
The statement of compatibility argues that the objective of the measure
is to ensure that tax-payer funded welfare payments are not being used to
support substance abuse and provide new pathways for identifying recipients and
facilitating their referral to treatment where required.
2.385
As stated above, the early treatment of harmful drug use to prevent drug
dependency, and addressing barriers to employment created by drug dependency,
are likely to be legitimate objectives for the purposes of human rights law.
However, as discussed above, the initial analysis identified that it is not
clear that the measure is effective to achieve and proportionate to the stated
objectives, and there would appear to be less rights restrictive methods for
achieving these objectives.
2.386
The committee therefore sought further advice from the minister as to
whether the measure is proportionate to its objective, in particular whether
there are less rights restrictive alternatives to the measure to achieve the
objective.
Minister's response
2.387
In relation to the compatibility of the measure with the right to
equality and non-discrimination, and whether the measure is proportionate to
its objective, the minister's response states:
Drug or alcohol dependency is a known barrier to work or to
undertaking activities to find or prepare for work. In 2016-17 there were
22,133 temporary incapacity exemptions given to 16,157 job seekers because they
had drug and/or alcohol dependence issues that prevented them from meeting
mutual obligation requirements, such as job search.
This is a significant number of job seekers; however, as
outlined above, data from the 2013 National Drug Strategy Household Drug Use
Survey indicates that there may be many more job seekers with drug and/or
alcohol abuse issues who are not being identified.
Supporting job seekers with drug and/or alcohol abuse issues
to seek treatment will better enable them to meet the mutual obligation
requirements associated with their payments and ultimately find and maintain a
job. This trial is designed to test a new way of identifying job seekers in
these circumstances and providing them with support. To the extent that the
trial is targeted at people with drug abuse issues, this is reasonable and
proportionate to the objective of ensuring that these job seekers get the
support they need to address their issues.
Research indicates that certain groups within the population
may be at greater risk of developing harmful drug use behaviours or undergoing
drug-related harm. These groups may require particular targeting in terms of
education, treatment and prevention programs.
In relation to the potential use of risk profiling, it was
intended that this would be used to inform the selection of job seekers for the
trial in order to maximise the chances of identifying job seekers who may have
drug abuse issues and may need help to address their barriers to work.
2.388
As stated above, the early treatment of harmful drug use to prevent drug
dependency, and addressing barriers to employment created by drug dependency,
are likely to be legitimate objectives for the purposes of human rights law.
However, the concern is whether the measure is rationally connected and
proportionate to that objective. While in general providing support for persons
with drug dependency issues (such as referring people to medical treatment,
education training, treatment and prevention programs) is consistent with
international human rights law, the minister has not provided any information
as to whether income management and, in certain circumstances, reducing
payments of persons who fail to undertake treatment activities would be an
effective or proportionate means of ensuring job seekers get the support they
need to address drug dependency issues.
2.389
Further, the minister has not expressly identified whether the measure
was the least rights restrictive way of achieving its legitimate objective.
While the minister acknowledged that certain groups within the population may
be at greater risk of developing harmful drug use behaviours and therefore may
require particular targeting, the minister did not expressly engage with the
right to equality and non-discrimination on the basis of disability where drug
dependency may rise to the level of a disability. Based on the information
provided, the measure appears to have a disproportionate negative effect on
particular groups and is likely to be incompatible with the right to equality
and non-discrimination.
Committee response
2.390
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.391
The preceding analysis indicates the measure is likely to be
incompatible with the right to equality and non-discrimination noting that the
measure appears likely to have a disproportionate negative impact on particular
groups and that it appears the measure is unlikely to be the least rights
restrictive measure.
Schedules 13-14 – Removal of exemptions for drug or alcohol dependence; and
changes to reasonable excuses
2.392
Under current social security law, a person may be exempted from
participation or activity test requirements (mutual obligation requirements) in
relation to the receipt of certain social security payments such as Newstart
Allowance, Youth Allowance, parenting payments and special benefits. If they
are not exempted from the requirements, and commit a 'participation failure'
(such as failing to attend a participation interview or undertake a compulsory
work activity) they will have their payments suspended, cancelled or reduced.
However, where a person fails to meet a mutual obligation requirement or
commits a participation failure, they will not be subject to a suspension or a
non-payment penalty where that person has a 'reasonable excuse'.
2.393
Schedule 13 of the bill seeks to ensure that exemptions from mutual
obligation requirements are not available where the reason for the exemption is
wholly or predominantly attributable to drug or alcohol dependency or misuse.
2.394
Schedule 14 of the bill provides the secretary with a power to make a
legislative instrument setting out the matters that must not be taken into
account when deciding whether a person has a 'reasonable excuse' for committing
a participation failure.
Compatibility of the measures with
the right to equality and non-discrimination
2.395
As noted above, the right to equality and non-discrimination provides
that all persons are equal before the law and entitled to equal protection of
the law without any discrimination. It effectively prohibits the law from
discriminating on grounds such as race, sex, religion, political opinion,
national origin, or "other status".[186]
2.396
Alcohol and drug dependence is considered to be a disability, and
therefore considered "other status"[187]
as well as protected from discrimination by the CRPD.[188]
2.397
As stated in the statement of compatibility, the measure:
...engages the rights to equality and non-discrimination
because people who may have a disability or illnesses associated with drug or
alcohol dependency (such as alcoholism) will be subject to differential
treatment insofar as they will not be eligible for the exemption that people
with another illness or disability could potentially access.[189]
2.398
The statement of compatibility also acknowledges potential
discrimination against Aboriginal and Torres Strait Islander people who
experience higher rates of drug and alcohol dependencies.
2.399
As noted in the initial analysis, the statement of compatibility states
that in both instances the differential treatment is permissible because the
measure is 'reasonable and proportionate to the objective of encouraging these
recipients to address the underlying cause of their incapacity'.[190]
While this may be a legitimate objective for the purposes of human rights law, questions
arise as to whether the measures are effective to achieve (that is, rationally
connected to) and proportionate to that objective.
2.400
The proposed preclusion from obtaining an exemption from the measure in
specified circumstances is quite broad, affecting both the rational connection
and proportionality of the measure to the objective of 'encouraging these
recipients to address the underlying cause of their incapacity'.[191]
The measure refers to circumstances, illness or accident 'predominantly
attributable to a person's misuse of alcohol or another drug' and therefore
appears to cover not only ongoing drug and alcohol misuse but diseases that may
result from past misuse such as Alcoholic Liver Disease or brain damage. In
these circumstances, a person may have already done all they can to address
'the underlying cause of their incapacity'. It may also cover injuries
resulting from accidents when intoxicated, where again, the cause cannot be
addressed as the misuse occurred in the past. In addition, the previous
analysis stated that it appears to cover circumstances where a person has
undergone treatment unsuccessfully several times, and may no longer have the
mental capacity to be assessed as a suitable candidate for treatment.
2.401
The explanatory memorandum states that an exemption would not cover 'a
special circumstances exemption due to a major personal crisis because they
have been evicted from their home due to drug or alcohol misuse'.[192]
The measure therefore appears intended to have the effect that if a person
fails to attend a participation interview or undertake a compulsory work
activity because that person has, for instance, been rendered homeless, that
person's social security payments will be suspended, cancelled or reduced, if
this homelessness is predominantly attributable to drug or alcohol dependency.
2.402
The initial analysis stated that it is difficult to see how making a
person subject to mutual obligation requirements when they are in crisis due to
eviction, caused by alcohol or drug misuse (which depending on severity may be
a disability), will encourage that person to address the 'underlying cause of
their incapacity'. The withdrawal of social security in circumstances of
personal crisis may indeed exacerbate substance abuse problems, rather than
encourage treatment.
2.403
Whilst the explanatory memorandum and statement of compatibility reason
that the measure will allow treatment to be sought as part of mutual obligation
requirements, it appears to rely on the exercise of discretion by the
Department of Human Services. The legal basis for requiring treatment as part
of an employment pathway plan is not apparent, and this is not addressed by the
statement of compatibility.[193]
2.404
In order for a measure to be a proportionate limitation on the right to
equality and non-discrimination, it must be shown that there were no less
rights restrictive methods available to achieve the objective. The previous
analysis stated that, in this instance it is not evident why, for example,
encouraging treatment and investing in additional treatment and referral
services, as would be the case with other disabilities, is insufficient to
encourage recipients to address the underlying cause of their incapacity.
2.405
A potentially important safeguard within the Social Security
Administration Act is the mechanism by which a person will not be subject to a
suspension or non‑payment penalty for non-compliance with mutual
obligation requirements where that person has a 'reasonable excuse'. As noted
above, schedule 14 provides the secretary with a power to make a legislative
instrument setting out what constitutes a reasonable excuse. The statement of
compatibility states that this power is intended to be exercised so as to
ensure that income support recipients will not be able to repeatedly use drug
or alcohol abuse or dependency as a reasonable excuse for participation
failures.[194]
This raises a concern that what constitutes a 'reasonable excuse' may not cover
the particular circumstances of those suffering from addiction. However, the
statement of compatibility further explains that it is intended that
individuals will still be able to use drug or alcohol abuse or dependency once
as a reasonable excuse (but not for second or subsequent participation failures
and be offered treatment as part of their employment pathway plan.[195]
2.406
The explanatory materials provide some further information about the
likely content of such a legislative instrument made under schedule 14 and
state that the penalty would not be imposed where treatment was not
appropriate, or available:
It is intended that existing reasonable excuse provisions
will continue to apply following the initial relevant participation failure due
to drug or alcohol misuse or dependency where treatment is
unavailable/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.[196]
2.407
The content of these safeguards is important in assessing the human
rights compatibility of the measure. However, the initial human rights
assessment stated that without reviewing the legislative instrument, which will
set out what constitutes a reasonable excuse, it is difficult to determine the
extent of any limitation on the right to equality and non-discrimination and
whether there will be sufficient safeguards to ensure that the limitation on
this right is proportionate.
2.408
The committee sought further information from the minister as to whether
the measures are reasonable and proportionate for the achievement of their
objective and in particular:
-
whether less rights restrictive
measures would be workable; and
-
whether adequate safeguards are
available to protect the rights of people with disabilities relating to alcohol
or drugs.
2.409
Noting that the details of what is to constitute a 'reasonable excuse'
is to be provided by legislative instrument, the committee also sought further
information from the minister regarding the safeguards to be included in this
instrument.
Minister's response
2.410
In relation to the committee's inquiry seeking further information
regarding the safeguards to be included in the legislative instrument, the
minister's response states:
The instrument will include a number of safeguards to ensure
that job seekers with drug or alcohol dependency affecting their ability to
meet their requirements are not adversely affected by the measure through no
fault of their own. The intent of the measure is to remove the ability for job
seekers to repeatedly use reasonable excuse only in those instances where they
have previously had it accepted and subsequently refused available and
appropriate treatment.
Accordingly, the instrument will specify that drug or alcohol
dependency cannot be considered as a reasonable excuse only if it has
been previously used and accepted and if the individual has refused to
participate in appropriate and available treatment. This would mean that the
only time job seekers would not be able to have their drug or alcohol
considered as a reasonable excuse would be if they had decided not to
participate in treatment. In any instance where the job seeker had made a
decision to participate in available and appropriate treatment, drug and
alcohol dependence would be required to be considered in determining if the job
seeker had a reasonable excuse (as per current arrangements).
As an additional protection, it will be specified in the instrument
that if appropriate treatment is not available for the job seeker, then the
existing reasonable excuse provisions will continue to apply.
More broadly, the instrument will continue to specify those
matters that must be taken into account when deciding whether a job
seeker has a reasonable excuse. The instrument will not limit the discretion of
the decision-maker to take into account any factor that may provide a
reasonable excuse (except for drug and alcohol dependency while refusing to
participate in appropriate treatment).
2.411
The minister's response clarifies that it is only where a person has
previously invoked drug dependency as a reasonable excuse and the person has
refused to participate in treatment that the person would not be able to invoke
their drug dependency as a reasonable excuse. Based on this information, it
appears that this aspect of the measure may be sufficiently circumscribed and
constitute a safeguard insofar as persons who cannot meet the requirements
through no fault of their own (such as where appropriate treatment is
unavailable) will not be affected. The committee will consider the human rights
compatibility of the proposed legislative instrument once it is received.
2.412
In relation to whether less rights restrictive measures would be
workable, and whether there are adequate safeguards available to protect the
rights of people with disabilities relating to alcohol or drugs, the minister's
response states:
Schedule 13
Drug or alcohol dependency is [a] known barrier to work or to
undertaking activities to find or prepare for work. As highlighted in 2016-17
there were 22,133 temporary incapacity exemptions given to 16,157 job seekers
because they had a drug and/or alcohol dependence issues that prevented them
from meeting mutual obligation requirements, such as job search.
AIIowing people to be exempt from their mutual obligations
due to drug or alcohol issues supports a disengagement from the employment
services support process, and from potential referral to treatment, which may
impede a person's return to work in the longer term.
This measure is designed to ensure that job seekers with drug
and alcohol abuse issues remain connected to their employment services provider
so that they can be supported to engage in appropriate activities to address
their barriers to work.
As per existing arrangements, the provider will work with the
job seeker to develop a Job Plan that is individually tailored and responds to
their issues and needs. This could include drug and/or alcohol treatment where
appropriate.
People who have a disability, such as acquired brain injury
or liver disease, that may have been caused or exacerbated by drug and/or
alcohol abuse will remain eligible to apply for a temporary incapacity
exemption on the basis of this disability if it is impacting on their ability
to meet their mutual obligation requirements. Job seekers that have other
circumstances not connected to drug or alcohol misuse which impact their
ability to meet their mutual obligation requirements may also qualify for
another type of exemption. This may include circumstances, such as domestic
violence, temporary caring responsibilities or a major personal crisis.
To the extent that this measure is targeted at people with
drug and/or alcohol misuse or dependency issues, this is reasonable and
proportionate to the objective of ensuring that these job seekers get the
support they need to address their issues, noting that other exemptions will
continue to be available.
Schedule 14
As part of the tightening of reasonable excuse, job seekers,
including those with disabilities related to drugs or alcohol, will be able to
unconditionally use reasonable excuse due to drug or alcohol dependency only
once. Job seekers will then have the choice of seeking treatment, if it is available
and appropriate, which will help them meet their mutual obligation
requirements. If job seekers elect not to undertake treatment they will no
longer be able to use drug or alcohol dependence as a reasonable excuse if they
do not meet their mutual obligation requirements.
This measure is the least restrictive method of achieving the
policy objective of ensuring that job seekers are unable to repeatedly use drug
or alcohol as a reasonable excuse unless they agree to participate in
treatment, if it is available and appropriate. Job seekers will also only be
affected by the measure if they continually fail to meet their mutual
obligation requirements and refuse to participate in available and appropriate
treatment (see further detail on available protections in the response to 1.311
and 1.316). Those with drug or alcohol conditions that do not impair the
ability to meet their requirements or who agree to participate in treatment
will not be affected by the tightening of reasonable excuse.
2.413
The minister's response has clarified some of the circumstances in which
other types of exemption would apply, such as a temporary incapacity exemption
for persons who have a disability such as an acquired brain injury or liver
disease caused or exacerbated by drug use, or other exemptions for
circumstances involving domestic violence, temporary caring responsibilities or
a major personal crisis. This may alleviate some of the concerns expressed in
the initial analysis as to the breadth of the proposed preclusions, and safeguards
available to protect the rights of people with disabilities relating to alcohol
or drugs. While it appears that the scope of the preclusion on obtaining an
exemption in Schedule 13 remains broad, the safeguards with respect to the
operation of the 'reasonable excuse' amendments in Schedule 14, discussed
above, appear to address some of these concerns insofar as persons who cannot
meet the mutual obligation requirements through no fault of their own (such as
where appropriate treatment is unavailable) will be able to continue to rely on
the 'reasonable excuse' requirement.
Committee response
2.414
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.415
The preceding analysis indicates that the right to equality and
non‑discrimination is engaged by the measure.
2.416
On balance, schedules 13 and 14 appear to include adequate
safeguards to protect the rights of people with disabilities relating to
alcohol or drugs, noting that this is subject to the final content of the Drug
Test Rules and that the committee will consider the human rights compatibility
of the proposed legislative instrument containing these safeguards once it is
received.
Compatibility of the measures with the right to social security and an
adequate standard of living
2.417
Removing drug and alcohol dependence as an exemption to mutual
obligation requirements means that more people will be required to comply with
such requirements. The previous analysis stated that, as a failure to meet
these requirements without a reasonable excuse will result in the reduction or
suspension of social security payments, the measure engages and may limit the
right to social security and the right to an adequate standard of living.
Further, the analysis noted that the changes to what constitutes a 'reasonable
excuse' in these circumstances also engages and may limit these rights to the
extent that drug and alcohol abuse and dependency no longer constitute a
reasonable excuse for failing to meet a mutual obligation requirement.[197]
2.418
As discussed above, whilst encouraging recipients to address their
underlying barriers to work is a legitimate objective under international law,
there are questions as to whether the measures are effective to achieve and
proportionate to that objective.
2.419
In the context of the right to social security and an adequate standard
of living, these provisions may be particularly disproportionate as they
restrict the discretion enabling compliance officers to take into account the
particular hardship suffered by a person where alcohol and drugs are involved,
and therefore may operate to deny a person basic necessities. As stated above,
many welfare payments are already paid at a basic rate, and require a person to
have used the majority of their savings in order to be eligible. Therefore,
there may not be a financial buffer for personal crises or illnesses that cause
difficulties in meeting mutual obligation requirements. The initial analysis
stated that it was particularly concerning that a person may be subject to suspension
or cancellation of social security payments in circumstances where they have
been evicted from their housing due to alcohol or drug use. Under the intended
rules of Schedule 14, it does not appear that they will then be able to access
reasonable excuse provisions more than once. This kind of inflexibility may
cause significant deprivation and fail to support people in addressing their
substance misuse issues.
2.420
The preceding analysis indicates that Schedules 13 and 14 engage and
limit the right to social security and an adequate standard of living.
2.421
The committee therefore sought further information from the minister as
to whether the measures are reasonable and proportionate for the achievement of
their objective and in particular:
-
whether less rights restrictive
measures would be workable; and
-
whether adequate safeguards are
available to protect people from suffering deprivation.
Minister's response
2.422
In relation to these matters, the minister's response provides further
information as to what happens to job seekers who have drug dependency issues
who cannot rely on an exemption from mutual obligation requirements or invoke
their drug dependency as a 'reasonable excuse':
Schedule 13
This measure recognises that, while job seekers with
substance misuse issues may be unable to undertake job search or other
work-related activities, they should be encouraged to pursue treatment to
overcome their barriers to work.
A job seeker's rate of payment is not impacted by whether or
not they have an exemption from their mutual obligation requirements. As such,
this measure will not change the amount of income support a job seeker
receives.
Where a job seeker's request for an exemption is rejected on
the basis that it is wholly or predominantly related to substance dependency or
misuse, they will remain connected to their employment services provider and
need to satisfy mutual obligation or participation requirements.
Mutual obligation activities are tailored by employment
service providers to the job seeker's needs, taking into account their
individual circumstances. This may include drug or alcohol treatment. Intensive
treatment (such as residential rehabilitation) which prevents the job seeker
from participating in any other activities will fully meet the job seekers
requirements. Less intensive treatment (such as fortnightly counselling) will
contribute to meeting their requirements and the job seeker may have to
undertake other activities, depending on their circumstances and capacity.
Job seekers (other than those participating in the trial)
undertaking treatment will have this included in their Job Plan as a voluntary
activity. This means that compliance action, such as a financial penalty, will
not apply if the job seekers ceases to undertake that activity or fails to
attend. However, in these circumstances, the job seekers will be required to
undertake other activities to meet their mutual obligation requirements.
Limiting access to certain exemptions where the reason is
wholly or predominantly attributable to drug or alcohol misuse or dependency is
reasonable and proportionate to the objective of ensuring that job seekers are
encouraged to address their substance-related issues rather than remaining
disengaged.
Schedule 14
The impacts of Schedule 14, the tightening of reasonable
excuse, on the rights to social security and an adequate standard of living are
reasonable and proportionate. This measure is the least restrictive method of
achieving the policy objective of ensuring that job seekers are unable to
repeatedly use drug or alcohol as a reasonable excuse. Job seekers will also
only be affected by the measure if they continually fail to meet their mutual
obligation requirements and refuse to participate in available and appropriate
treatment. Those with drug or alcohol conditions that do not impair the ability
to meet their requirements will not be affected.
The protections outlined in the response to 1.311 [that is,
the safeguards in place surrounding what constitutes a 'reasonable excuse' to
be introduced via a legislative instrument] will ensure that only those job
seekers who actively refuse to participate in treatment will be unable to
repeatedly use reasonable excuse due to drugs or alcohol. Additionally, all job
seekers, whether or not they subsequently refuse to participate in treatment,
will be able to use drug or alcohol dependency as a reasonable excuse once.
This will ensure that job seekers are not adversely affected if they are
unaware of what treatment is available in their area.
To ensure that all job seekers who elect to participate in
treatment are able to do so, their usual mutual obligation requirements will be
reduced, depending on the amount of hours of treatment required.
2.423
The substance of the minister's response is that the mutual obligation
activities, being tailored by employment service providers to the job seeker's
needs, will be sufficiently flexible to accommodate the individual
circumstances of the particular job seeker. This may include a range of
treatment options of varying degrees of intensity. Additionally, the minister's
response emphasises that the amendments limiting the 'reasonable excuse'
safeguard are sufficiently circumscribed insofar as they apply only to job
seekers who 'actively refuse to participate in treatment'.
2.424
While the minister's response explains that a person's rate of payment
is not impacted by whether or not they have an exemption from their mutual
obligation requirements, a person's payment is liable to suspension or
cancellation in the event of a participation failure if they fail to meet a
mutual obligation activity. That is, they will go without payment for at least
a period of time. A person may still face a non‑compliance penalty for
failing to attend, for example, an interview with a job service provider due to
drug dependence (such as being drug affected or hungover). As noted in the
initial analysis, it is particularly concerning that a person may be subject to
suspension or cancellation of social security payments in circumstances where,
for example, they have been evicted from their housing due to alcohol and drug
abuse. Further, while the minister explains that treatment is included as a
voluntary activity in a job plan and therefore will not attract compliance
actions (such as financial penalties), this does not apply to persons subject
to the mandatory drug testing trial. In these circumstances, notwithstanding
that the mutual obligation requirements may contain flexibility to accommodate
treatment options, the inability of a person to cite their drug or alcohol
dependency as a 'reasonable excuse' may have significant negative financial
consequences on a person through the suspension or cancellation of their social
security, or through financial penalties. It is unlikely that this potentially
significant financial consequence, which may impair a person's ability to
afford basic necessities, will be considered proportionate to the legitimate
objectives of the measure as a matter of international human rights law.
Committee response
2.425
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.426
The preceding analysis indicates the measure is likely to be
incompatible with the right to social security and the right to an adequate
standard of living.
Compatibility with the right to
protection of the family and the rights of the child
2.427
The rights of the family and child to protection and assistance are
protected by Article 10 of ICESCR, as well as various provisions of the
Convention on the Rights of the Child (CRC).
2.428
The statement of compatibility acknowledges that the right is engaged,
but argues that any penalties would only apply to income support payments made
to the parent in respect of themselves. It states that '[a]ny payments made to
the parents for the maintenance of their children, such as Family Tax Benefit,
or to meet childcare costs would not be affected by the penalty'.[198]
The statement of compatibility further notes that some principal carer parents
on working age payments are only required to meet part time mutual obligation
requirements, even if denied an exemption to the requirements due to alcohol or
drug misuse. Finally, it states that these measures will encourage parents to
address barriers to employment and move into work.[199]
However, as the initial analysis noted, it is unclear how it is envisaged this
will operate. If a parent is having difficulty paying rent or purchasing food due
to the imposition of a financial penalty, this would unavoidably affect the
standard of living of the children under their care. This raises questions
about the proportionality of the measure to the protection of the family and
the rights of the child.
2.429
The preceding analysis indicates that Schedules 13 and 14 engage and
limit the right to protection of family and the rights of the child. The
committee therefore sought further information from the minister as to whether
the measures are reasonable and proportionate for the achievement of their
objective and in particular:
-
whether less rights restrictive
measures would be workable; and
-
whether there are adequate
safeguards to protect the rights of children.
Minister's response
2.430
In relation to these questions raised by the committee, the minister's
response states:
Schedule 13
As outlined above, whether a job seeker is granted an
exemption or not doesn't change the amount of income support they receive.
Where a job seeker's request for an exemption is rejected on
the basis that it is wholly or predominantly related to substance dependency or
misuse, they will remain connected to their employment services provider and
need to satisfy mutual obligation requirements, tailored to their individual
circumstances. Job seekers who are the principal carer of a dependent child
aged under 16 years are subject to part-time mutual obligation requirements of
15 hours per week. This recognises their caring role and is designed to ensure
they are able to balance their caring responsibilities with their participation
obligations.
Ensuring that parents with substance misuse or dependency issues
remained connected and can be referred to appropriate treatment will put these
parents in a better position to overcome their issues, find a job and provide
for their families. As noted above, job seekers undertaking treatment will have
this included in their Job Plan as a voluntary activity (unless participating
in the trial under Schedule 12) and will not be subject to a financial penalty
if they cease to undertake that activity or fail to attend.
Family Tax Benefit, which is paid to parents to assist with
the costs of children, is not subject to mutual obligation or participation
requirements and will not be impacted by this measure.
Schedule 14
As a result of the tightening of reasonable excuse in
Schedule 14, job seekers who continually fail to meet their usual mutual
obligation requirements due to drug or alcohol dependence, and actively refuse
to participate in treatment to which they have been referred, may face
financial penalties. In some cases, where these job seekers are parents, this
may indirectly have flow on impacts to their children (although in no
circumstances would the application of a financial penalty impact family
payments, including rent assistance where paid with the family payments).
However, the primary purpose of the measure is to incentivise
job seekers with serious drug or alcohol issues into treatment. Continued drug
or alcohol dependency by parents to an extent that they are repeatedly unable
to meet their requirements is likely to have significant adverse effects for
the child. Children in this circumstance would likely be better off if their
parents participated in the treatment they need. Also, as part of the
tightening of reasonable excuse measure, no significant increase in the number
of financial penalties applied is expected. Further, given that the ultimate
policy objective is to ensure job seekers address drug and alcohol barriers so
that they are able to more quickly move into paid work, this will be beneficial
for children as there is evidence that when parents are in paid employment this
improves outcomes for children.
2.431
As discussed above in relation to the right to social security and the
right to an adequate standard of living, while the minister's response explains
that a person's rate of payment is not impacted by whether or not they have an
exemption from their mutual obligation requirements, a person's payment is
liable to suspension or cancellation in the event of a participation failure if
they fail to meet a mutual obligation activity. Further, while the minister
explains that treatment is included as a voluntary activity in a job plan and
therefore will not attract compliance actions (such as financial penalties)
this does not apply to persons subject to the mandatory drug testing trial.
That is, persons may go without payment for at least a period of time and, in
the case of persons undertaking the mandatory drug test trial, may be subject
to financial penalties for failing undertake or attend treatment as part of
their job plan.
2.432
In these circumstances, as with the conclusions above in relation to the
right to social security and the right to an adequate standard of living, the
flexibility contained in mutual obligation requirements to accommodate
treatment options (including the options to complete those obligations
part-time) does not overcome the potentially significant negative financial
consequences on a person that may occur through the suspension or cancellation
of their social security, or through financial penalties, for participation
failures due to drug dependency. The suspension or cancellation of parents’
payments may have serious consequences on children in their care.
2.433
It is unlikely that this potentially significant financial consequence,
which may impair a person's ability to afford basic necessities, will be
considered proportionate to the legitimate objectives of the measure as a
matter of international human rights law. As noted in the initial analysis, if
a parent is having difficulty paying rent or purchasing food due to the
imposition of a financial penalty, this would naturally affect the standard of
living of the children under their care. Thus, while it is certainly the case
that continued drug and alcohol dependency by parents may have adverse effects
for the child (as the minister states in his response), the imposition of
suspension, cancellation or financial penalties on parents is unlikely to
constitute a proportionate limitation on the rights of children and the right
to protection of the family.
Committee response
2.434
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.435
The preceding analysis indicates the measure is likely to be
incompatible with the right to protection of the family and the rights of the
child.
Schedule 15 – compliance framework
2.436
Currently, job seekers who receive an activity-tested income support
social security participation payment (that is, Newstart Allowance and, in some
cases, Youth Allowance, Parenting Payment or special benefit) are subject to
the compliance framework set out in Division 3A of the Social Security
Administration Act and must comply with mutual obligation requirements.[200]
2.437
Schedule 15 of the bill proposes to introduce a new compliance
framework, including:
-
Payment suspension for non-compliance with a mutual obligation
requirement;
-
Financial penalties for refusing work; and
-
Financial penalties for persistent non-compliance.
2.438
The committee has previously examined several bills which contained
measures similar to those proposed in this schedule.[201]
Payment suspension for mutual obligation failures
2.439
Under schedule 15 job seekers will have their income support payment
suspended for every failure to meet a mutual obligation requirement without a
reasonable excuse.[202]
The suspension period ends when the person complies with the reconnection
requirement (such as reconnecting with an employment provider) unless the
secretary determines an earlier day. If the job seeker fails to reconnect with
employment services within four weeks, their social security participation
payment will be cancelled.[203]
The measure is similar to those currently contained in division 3A of the
Social Security Administration Act.
Compatibility of the measure with
the right to social security and right to an adequate standard of living
2.440
The previous analysis stated that, as the measure operates to suspend
social security payments, it engages and may limit the right to social security
and the right to an adequate standard of living. As set out above, such
limitations are permissible provided certain criteria are met.
2.441
The statement of compatibility identifies the objective of the measure
as 'encouraging persons to remain engaged with employment services and actively
seek and accept suitable work'.[204]
This is likely to be a legitimate objective for the purposes of international
human rights law.
2.442
It was noted that the existence of safeguards is relevant to the
proportionality of the measure. The statement of compatibility outlines some of
the relevant safeguards including that the suspension does not apply if the
person has a 'reasonable excuse'. What constitutes a reasonable excuse is to be
outlined in a legislative instrument. The statement of compatibility notes that
a 'reasonable excuse' may include, for example, 'whether the person or a close
family member has suffered an illness or was prevented from complying by circumstances
beyond their control'.[205]
However, other aspects of this bill, as outlined above, seek to limit what
constitutes a reasonable excuse. Without being able to review the legislative
instrument, which will include further information about what constitutes a
reasonable excuse, the initial analysis noted that it is difficult to determine
whether or not this mechanism will operate as an effective safeguard.
2.443
The statement of compatibility outlines some other safeguards including
that:
-
Job seekers will continue to be eligible for concession card
benefits while suspended (but not cancelled);
-
cancelations and suspensions are subject to review both
internally and externally;
-
if a job seeker's payment is cancelled as a result of failing to
reengage within four weeks, they are able to reclaim benefits immediately; and
-
the payment suspension can be ended by fulfilling the
reconnection requirement (such as attending an interview with their employment
service provider) and be fully back paid.[206]
2.444
The committee therefore requested the advice of the minister as to
whether the measure is reasonable and proportionate for the achievement of its
legitimate objective, in particular, what criteria will apply to whether a
person is considered to have a 'reasonable excuse' for failing to comply with a
mutual obligation requirement.
Minister's response
2.445
The minister's response argues that 'the targeted compliance framework,
is reasonable and proportionate in achieving the objective of encouraging job
seekers to remain engaged with employment services and actively seeking and
accepting suitable work'.
2.446
In relation to the suspension of payment for a mutual obligation
failure, the minister's response states that 'job seekers who miss requirements
without reasonable excuse will have their payment suspended until they
re-engage, with any missed payment back-paid'.
2.447
In relation to what will constitute a reasonable excuse, the minister's
response states that:
Reasonable excuse criteria will be largely identical to those
applying under current arrangements. When determining if an individual has a
reasonable excuse, decision makers will be required to consider if the job seeker's
failure was directly contributed to by:
-
lack of access to safe, secure and
adequate housing;
-
literacy and language skills;
-
an illness, injury, impairment or
disability;
-
a cognitive, neurological,
psychiatric or psychological impairment or mental illness;
-
a drug or alcohol dependency;
-
unforeseen family or caring
responsibilities;
-
criminal violence (including
domestic violence and sexual assault);
-
adverse effects of the death of an
immediate family member or close relative; or
-
working or attending a job interview
at the time of the failure.
The instrument does not limit the discretion of
decision-makers, who will also be able to consider any other factor that
directly prevented job seekers from meeting their requirements (with the
exception of repeated use of drug or alcohol dependency if the person has
actively refused treatment).
2.448
These appear to be relevant safeguards with respect to the operation of
the measure. Such 'reasonable excuse' criteria may be capable of operating in a
matter which assists to ensure that it does not operate harshly in respect of
vulnerable individuals. This means that in a number of circumstances the
measure is likely to be a proportionate limitation on the right to social
security. However, as set out above, there are concerns that the 'reasonable
excuse' criteria will not capture drug or alcohol dependency. In terms of human
rights compatibility, it will be relevant for the committee to examine the
legislative instrument setting out the criteria for what constitutes a
'reasonable excuse' once it is received.
Committee response
2.449
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.450
The preceding analysis indicates that, in view of the range of
circumstances identified in the minister’s response to constitute a 'reasonable
excuse', the measure may be compatible with the right to social security.
However, it is noted that this safeguard does not apply in relation to repeated
drug or alcohol dependency and the committee refers to its comments above. The
committee will examine the legislative instrument defining what constitutes a
'reasonable excuse' when it is received.
Financial penalties for refusing work or dismissal due to misconduct
2.451
Job seekers who fail to accept an offer of suitable work will have their
social security payment suspended. They will also be subject to payment
cancellation and a 4 week non-payment period if they are found to have refused
or failed to commence the work without a reasonable excuse.[207]
2.452
Job seekers who leave suitable work voluntarily without a valid reason
or are dismissed from suitable work due to misconduct will (in addition to
having their payment cancelled if they are receiving payment) be subject to a 4
week non-payment period (or 6 weeks where the person received relocation
assistance to move to take up the work).[208]
2.453
Currently, under section 42N of the Social Security Administration Act a
person would be subject to a non-payment period of 8 weeks. However, the
secretary has the discretion to end this period if it would cause 'severe
financial hardship'.[209]
2.454
The bill would remove the ability for the non-payment penalty to be
waived on the basis of financial hardship.
Compatibility of the measure with
the right to social security and right to an adequate standard of living
2.455
The previous analysis stated that, as the measure operates to suspend
social security payments, it engages and may limit the right to social security
and the right to an adequate standard of living. The statement of compatibility
identifies the objective of the measure as having:
demonstrably employable job seekers remain committed to
obtaining work as soon as they can rather than continuing to remain in receipt
of income support at tax-payers' expense.[210]
2.456
In relation to the proportionality of the measure, the statement of
compatibility outlines some safeguards and notes that this measure would reduce
the non‑payment penalty from eight-weeks to four-weeks.[211] On its own, this reduction
would make the current arrangements less rights restrictive. However, as the
initial analysis noted, concerns remain as to whether, during this four-week
period, there would be sufficient support for a person to meet basic necessities.
In particular, the measure would remove the ability for the non-payment penalty
to be waived on the basis of financial hardship. In this regard, the
explanatory memorandum explains:
There will be no wasivers for non-payment or preclusion
periods under the new compliance framework. The current widespread availability
of waivers, where over 88 per cent of penalties for serious failures are
waived, has undermined the effectiveness of these penalties to the extent that
they no longer provide a deterrent to job seekers who persistently fail to meet
their requirements.[212]
2.457
The committee has previously examined the removal of the waiver and
raised concerns regarding the compatibility of the measure with the right to
social security and the right to an adequate standard of living.[213]
It does not appear from the materials provided in the statement of
compatibility that these concerns have been addressed.
2.458
While the statement of compatibility provides information as to the
percentage of cases in which a waiver has been applied, the assessment does not
establish that the removal or limitation of the waiver will, of itself, provide
a deterrent against non-compliance with job seekers' obligations.[214] In
particular, the figures provided on the proportion of waivers granted are not
accompanied by any basis to conclude that these were inappropriate, excessive
or misused. The previous analysis stated that it is therefore unclear how
removing the availability of a waiver on the ground of a job seeker's severe
financial hardship, would achieve the stated objective of the measures. Even if
excessive reliance on the waiver is considered problematic, it appears possible
to address concerns without removing the waiver altogether.
2.459 The committee
therefore requested the advice of the minister as to whether the measure is
reasonable and proportionate for the achievement of its stated objective, and
in particular:
-
whether the waiver was being misused or was ineffective;
-
whether there are less rights restrictive options that are
reasonably available, for instance, whether a waiver could be provided where
circumstances justify the waiver in accordance with a more structured framework
that allows for consistent and appropriate application of the waiver; and
-
whether there are any safeguards in relation to the application
of the measure (such as crises or when a person is unable to meet basic
necessities).
Minister's response
2.460
In relation to the removal of the ability for the non-payment penalty to
be waived on the basis of financial hardship, the minister's response outlines
concerns that the waiver was ineffective and was being misused:
Waivers are not appropriate for job seekers who turn down
suitable work. This is because, by definition, any job seeker who turns down
suitable work is able to work to help support themselves.
Job seekers may only be penalised for turning down work,
where the work is suitable. That is, where it meets a range of legislated
criteria, including that the person has the skills required to do the work, or
will be trained to do so, the work would not aggravate any medical or
psychological condition, the work meets all relevant safety and wage
legislation, commuting time to and from the work is reasonable and the person
has appropriate childcare available.
The presence of waivers undermines the efficacy of penalties
for refusing work. As was highlighted in the statement of compatibility of
human rights, the vast majority of serious penalties are waived under current
arrangements. Further, as part of the policy development process for the
development of the targeted compliance framework, consultation with Department
of Human Services' staff reported that the cycle of assessments and the ability
for cash-in-hand workers and serially non-compliant job seekers to remain on payment
is exacerbated by the ability to too easily waive the eight week non-payment
period for serious failures. A large number of recipients do not serve applied
eight week non-payment penalty periods, having them provisionally waived by
simply agreeing to participate in a Compliance Activity. Many recipients
reportedly attend Compliance Activity appointments necessary to unconditionally
waive the penalty and re-start their payment, but do not attend any other
appointments or participate in the Compliance Activity. The Department of Human
Services' staff reported that recipients in this situation are often very
knowledgeable about the compliance system and pre-empt advice about how to
receive payment again.
2.461
The minister's response outlines that there have been some aspects of
the operation of the current measure that have undermined the effectiveness of
penalties in circumstances where a person refuses suitable work. The minister's
response does not expressly provide any information as to whether there are similar
concerns about the operation of the waiver where a person is dismissed due to
misconduct. However, it appears that similar issues relating to the operation
of the waiver could apply.
2.462
Although not directly addressed, the minister's response appears to
confirm that in circumstances where the non-payment penalty applies, there may be
limited support available to an individual to meet basic necessities. The
minister's response states that while the penalty will not be able to be
waived, it will now be limited to one month (rather than the two months that
was previously the case). However, it is noted that one month may still be a
considerable period of time to go without social security payments.
2.463
In this respect, the minister's response states that compliance
penalties will not affect family payments and that a person may be able to
access crisis relief programs delivered by charities (some of which are funded
under the Emergency Relief Program which is administered by the department). Continued
access to family payments and potential access to emergency relief is relevant
to the proportionality of the measure. However, the minister's indication that
an individual may be forced to rely on charities (which they may or may not be
able to access) tends to indicate that the measure is unlikely to be a
proportionate limitation on human rights.
2.464
Insofar as the measure is responsive to widespread grants of waivers, the
minister did not address whether, if waivers have been granted inappropriately,
other less rights-restrictive means are reasonably available to ensure waivers
are only granted in appropriate circumstances, without needing to remove the
existence of a waiver for financial hardship.
Committee response
2.465
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.466
While this measure reduces the non-payment penalty from 8 weeks
to 4 weeks, the 8 week non-payment penalty was subject to a waiver in situations
of severe financial hardship. By contrast no waiver from the 4 week non-payment
penalty would be available under the proposed measure.
2.467
The preceding analysis indicates that the measure is likely to be
incompatible with the right to social security insofar as there may be
circumstances where a person is unable to meet basic necessities during the
four-week non-payment period. This is consistent with the committee's previous
conclusions in relation to a similar measure.
Repeated non-compliance penalties
2.468
Schedule 15 proposes that recipients of the participation payments who have
repeatedly failed to comply with their mutual obligation requirements will be
subject to escalating reductions in their income support social security
payments for further non-compliance with requirements.[215]
2.469
For the first failure of persistent non-compliance, the rate of
participation payment for the instalment period in which the failure is
committed or determined will be halved.[216]
For a second failure, the job seeker will lose their entire participation
payment and any add-on payments or supplements for that instalment period.[217] For a
third failure, the job seeker's payment will be cancelled from the start of the
instalment period and a 4 week non-payment period, starting from the date of
cancellation, will apply if the job seeker reapplies for payment. There
will be no waivers for non-payment periods.[218]
2.470
Proposed section 42AR(1) obliges the minister to make a legislative
instrument determining the circumstances in which the secretary must, or must
not, be satisfied that a person has committed a persistent obligation failure.
Compatibility of the measure with
the right to social security and right to an adequate standard of living
2.471
As the measure operates to suspend or cancel social security payments,
it engages and may limit the right to social security and the right to an
adequate standard of living. As noted above and in the previous analysis, the
objective of 'encouraging persons to remain engaged with employment services
and actively seek and accept suitable work' is likely to be considered a
legitimate objective for the purposes of international human rights law.[219]
2.472
In relation to the proportionality of the measure, the explanatory
memorandum explains:
In practice, administrative arrangements
will ensure that job seekers will need to have committed multiple failures
without a reasonable excuse before they can be determined to be persistently
non-compliant, and their provider and the Department of Human Services (DHS)
will conduct checks to ensure the job seeker does not have any undisclosed
issues that are affecting their ability to comply, and that their employment
pathway plan is suitable for their circumstances. The factors that the Secretary must consider as
constituting persistent non-compliance will be included in a legislative
instrument.[220]
2.473
However, in order for a measure to be a proportionate limitation on
human rights, it must be accompanied by sufficient safeguards in legislation.
Accordingly, the criteria to be included in the legislative instrument that the
secretary must consider as constituting persistent non-compliance are relevant
to the proportionality of the measure.
2.474
Additionally, the measure would remove the ability for the four-week non‑payment
penalty to be waived. The committee has previously examined the removal of the
waiver and raised concerns regarding the compatibility of the measure with the
right to social security and the right to an adequate standard of living.[221] As
noted above, it is unclear how limiting the availability of a waiver on the
ground of a job seeker's severe financial hardship would achieve the stated
objective of the measure. It is also unclear, during the four-week non-payment
period, whether there would be sufficient support for a person to meet basic
necessities or other safeguards.
2.475 The committee
therefore requested the advice of the minister as to whether the measure is
reasonable and proportionate for the achievement of its stated objective, and
in particular:
-
whether the waiver was being misused or was ineffective;
-
whether there are less rights restrictive options that are
reasonably available;
-
whether there are any safeguards in relation to the application
of the measure (such as, crises or when a person is unable to meet basic necessities);
-
whether a waiver could be provided where circumstances justify
the waiver in accordance with a more structured framework that allows for
consistent and appropriate application of the waiver; and
-
what criteria will be set out in the legislative instrument as
matters the Secretary must or must not consider as constituting persistent
non-compliance.
Minister's response
2.476
In relation to the proportionality of the measure and whether any
safeguards are available, the minister's response states:
The measure is proportionate and reasonable and will be
fairer and less harsh than the current framework for the vast majority of job
seekers who are generally compliant. Job seekers will only face penalties where
they repeatedly and persistently do not meet their requirements without
reasonable excuse, refuse work or voluntarily become unemployed...
Existing protections for the 200,000 job seekers who have
some sort of exemption from their mutual obligations or are fully meeting their
obligations through approved activities will also be preserved.
In addition, numerous safeguards will exist to ensure that
only those job seekers who are deliberately and persistently non-compliant will
face financial penalties. This recognises the fact that the majority of job
seekers consistently do the right thing and should not have payment deducted,
when payment suspension (with back-pay) alone is sufficient to get them to
re-engage. Job seekers will generally have to miss a minimum of five
appointments in six months, without good reason, before they actually lose
money. In contrast, job seekers may lose money for their first failure under
the current one-size-fits-all system.
To ensure that job seekers with circumstances affecting their
ability to meet their requirements are not unfairly penalised, job seekers will
also have their capabilities assessed twice before they face any loss of money,
by both their provider (on their third failure) and the Department of Human
Services (on their fourth failure). Job seekers whose vulnerabilities have
impacted their ability to meet agreed commitments will be able to renegotiate
their job plan at either of these assessments and have their demerits reset to
zero (allowing a further five failures without reasonable excuse before any
payment is lost). These protections are in contrast to the current framework,
where job seekers on average have almost four penalties applied before they
undergo a Comprehensive Compliance Assessment to see if they have any
vulnerabilities.
2.477
It is acknowledged that this process of assessment is intended to
operate in a less rights restrictive way than is the case under the current
system.
2.478
In relation to the inability for the non-payment penalty to be waived
regardless of individual circumstances, the minister's response states 'as with
penalties for refusing work, the vast majority of penalties for repeated
noncompliance are waived under current arrangements, undermining the deterrent
effect of penalties — particularly for persistently non-compliant job seekers'.
2.479
As noted above, it is acknowledged that there may be legitimate concerns
regarding waivers being applied in a manner which undermines the effectiveness
of penalties. However, the minister's response does not address whether less
right restrictive approaches to the total removal of the waiver would be
available. Specifically, the response does not address whether a waiver could
be provided where circumstances justify the waiver in accordance with a more
structured framework that allows for consistent and appropriate application of
the waiver.
2.480
The minister's response further states that while the penalty will not
be able to be waived, it will now be limited to one month (rather than the two
months that was previously the case). However, as noted above, one month may
still be a considerable period of time to go without social security payments.
In this respect, the minister's response further states that compliance
penalties will not affect family payments and that a person may be able to
access crisis relief programs delivered by charities (some of which are funded
under the Emergency Relief Program which is administered by the department). Continued
access to family payments and potential access to emergency relief is relevant
to the proportionality of the measure. Yet, the fact that an individual may be
forced to rely on charities (which they may or may not be able to access) tends
to indicate that the measure is unlikely to be a proportionate limitation on
human rights.
2.481
In relation to the criteria that will be set out in the legislative
instrument as matters the secretary must or must not consider as constituting
persistent non-compliance, the minister's response states:
The legislative instrument determining the circumstances in
which the Secretary must or must not be satisfied that a person has
persistently committed mutual obligation failures will specify the number and
timeframe within which prior failures must have been committed to constitute
persistent non-compliance. However, the determination of individual failures
contributing to a finding of persistent non-compliance will continue to be
guided by the reasonable excuse provisions and instrument. As outlined above,
reasonable excuse criteria will be largely identical to those applying under
current arrangements. It should also be reiterated that the instrument does not
limit the discretion of decision-makers, who will continue to be able to
consider any other factor that directly prevented job seekers from meeting
their requirements (with the exception of drug or alcohol dependency if the
person has refused treatment).
2.482
It is noted that this approach may assist to ensure that a non‑payment
penalty is only applied according to objective criteria. This is likely to
assist with the proportionality of the measure. In terms of human rights
compatibility, it will be relevant for the committee to examine the legislative
instrument setting out the criteria for what constitutes persistent
non-compliance once it is received. However, it is noted that the criteria
described in the minister's response does not require any assessment that a
person will be able to meet basic necessities before the penalty is applied.
Accordingly, it does not address the concern, set out above, that a person may
be unable to meet basic necessities during the four week non-payment period.
Committee response
2.483
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.484
While this measure reduces the non-payment penalty from 8 weeks
to 4 weeks, the 8 week non-payment penalty was subject to a waiver in
situations of severe financial hardship. By contrast no waiver from the 4 week
non-payment penalty would be available under the proposed measure.
2.485
The preceding analysis indicates that the measure is likely to be
incompatible with the right to social security noting that there may be
circumstances where a person is unable to meet basic necessities during the
four-week non-payment period. This is consistent with the committee's previous
conclusions in relation to a similar measure.
2.486
The committee will examine the legislative instrument setting out
the criteria for what constitutes persistent non-compliance once it is
received.
Schedule 17 – Information gathering powers and referrals for prosecution
2.487
Currently, the secretary may require a person to give information or
produce a document that is in a person's custody or control in order to assess
a person's qualification, payability or rate of payment.[222]
It is an offence with a penalty of up to 12 months imprisonment to refuse to
comply with this requirement.[223]
2.488
Schedule 17 of the bill would allow information and documents obtained
in the course of such administrative action by the Department of Human Services
to be used in subsequent investigations and criminal proceedings.[224]
2.489
It also proposes to provide that a person is not excused from giving
information or producing a document on the ground that the information might
tend to incriminate the person.[225]
Compatibility of the measure with
the right to privacy
2.490
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information and the
right to control the dissemination of information about one's private life. The
initial analysis stated that, as the measure would allow for the compulsory
collection and sharing of information about an individual, it engages and
limits the right to privacy. It does so in circumstances where the person
providing the information or document will not be afforded the privilege
against self-incrimination.
2.491
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective, and be rationally
connected and proportionate to achieving that objective. The statement of
compatibility acknowledges that this measure engages the right to privacy but
argues that this limitation is permissible.[226]
2.492
The statement of compatibility explains that currently information and
documents obtained under section 192 of the Social Security Administration Act
are inadmissible in criminal proceedings. It notes that the current process
is to obtain such information by search warrant:
Because of this, admissible evidence is obtained by using
search warrants pursuant to section 3E of the Crimes Act 1914 (Cth). The
Department of Human Services requests around 1,000 of these warrants annually.
Each warrant requires two to three business days of a seconded Australian
Federal Police agent's effort. This process places a significant burden on the
Department of Human Services, the Australian Federal Police, warrant recipients
and the courts, particularly when this information has already been collected
under section 192 of the SS(Admin) Act for administrative purposes.[227]
2.493
The statement of compatibility identifies the objective of the measure
as 'to streamline the process of gathering evidence for welfare fraud
prosecution'.[228]
As the initial analysis noted, matters of administrative ease or streamlining
processes on their own are unlikely to be considered a legitimate objective for
the purpose of international human rights law. Rather, a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient.
2.494
Further, the statement of compatibility does not demonstrate that the
measure imposes a proportionate limitation on the right to privacy. In
particular, the statement of compatibility does not address whether there are
adequate safeguards in place with respect to the exercise of this information
gathering and sharing power. It is noted that a warrant system by its nature
provides external safeguards that would not be present in the new system. In
order to be a proportionate limitation on the right to privacy a measure must
be the least rights restrictive way of achieving its legitimate objective.
2.495
The committee therefore sought the advice of the minister as to:
-
whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's response
2.496
In relation to the compatibility of the measure with the right to
privacy, the minister's response outlines the objective of the measure:
The proposed changes within schedule 17 are aimed at
achieving a legitimate objective, by preventing the need to obtain, via a
search warrant, information already obtained administratively. This not only
provides administrative benefits to the Department of Human Services and the
Australian Federal Police, but also benefits those persons providing the
information, typically third parties, by reducing the burden placed on them.
2.497
However, as noted in the initial analysis, reducing administrative
burdens or administrative convenience alone will generally be insufficient for
the purposes of permissibly limiting a human right under international human
rights law. Generally, a legitimate objective must address an area of public or
social concern that is pressing and substantial enough to warrant limiting the
right. Although not advanced in the minister's response, a legitimate objective
of the measure may be to ensure the effective investigation of fraud.
2.498
In relation to the proportionality of the limitation on the right to
privacy, the minister's response states:
The limitation of the right to privacy of this measure is
reasonable and proportionate.
In cases where this measure is used to obtain evidence from
individuals other than the person under investigation for welfare fraud, this
method does not impose any additional interference to their privacy, family,
home or correspondence. This is because any evidence obtained under this measure
would previously have been obtained using a search warrant, sometimes after
they had already provided this information for administrative purposes.
In cases where this measure is used to obtain information
from the individual under administrative investigation, this information is
only obtained for the purposes of ensuring the sustainability and integrity of
the social security system. This does not entail any risk of reputational harm,
except where an individual commits an offence by providing false or incomplete
information. This measure does not change the scope of information being
provided and only requires individuals to make a limited disclosure of
information necessary for the proper administration of the social security
system.
2.499
The response does not acknowledge that the purposes for which the
information may be used will be broadened such that the effect on the right to
privacy may be more extensive under the proposed measure. The fact that
information may have previously been provided for another purpose does not
necessarily mean that use of such information for further purposes is
permissible. Further, the response does not acknowledge that a warrant may or
may not be granted in a particular case. The warrant process is a form of
external oversight and a relevant safeguard against search powers being used
improperly. No assessment is made in the response as to the likely impact of
the removal of the warrant requirement.
2.500
On the other hand, as discussed further below, the existence of a 'use'
and 'derivative use' immunity contained in proposed section 197A may operate as
a safeguard in relation to the potential use of particular information.
Proposed section 197A relevantly provides that, subject to exceptions,
information given, documents produced or information obtained directly or
indirectly as a result of providing the documents or information, are not
admissible in evidence against the individual in criminal proceedings.[229]
This applies to information provided in accordance with this measure. In relation
to the scope of exemptions to these immunities, it appears that they are in
relation to failing to provide documents in accordance with the measure as well
as offences involving fraud or misrepresentation including in relation to
obtaining social security payments.[230]
While these exemptions provide significant scope for the use of information, the
existence of the immunities in relation to information that does not go to
these offences is relevant to the proportionality of the limitation.
Committee response
2.501
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.502
Based on the existence of relevant immunities against use of
material against an individual, it appears that the measure may be compatible
with the right to privacy.
Compatibility of the measure with
the right not to incriminate oneself
2.503
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14 of the ICCPR include the right not
to incriminate oneself (article 14(3)(g)).
2.504
The previous analysis stated that, requiring a person to provide
information or produce a document even if this information may incriminate them
engages and limits the right not to incriminate oneself. This right may be
subject to permissible limitations where the measure pursues a legitimate
objective and is rationally connected to, and proportionate to achieving, that
objective.
2.505
The statement of compatibility acknowledges this right is engaged.
However, as noted above, it is unclear from the statement of compatibility
whether the abrogation of the privilege against self-incrimination pursues a
legitimate objective for the purpose of international human rights law.
2.506
The statement of compatibility identifies some matters which may go
towards whether the measure is proportionate.[231]
In particular, the statement of compatibility outlines that a 'use' and
'derivative use' would be available in relation to information provided.[232]
Such immunities are important safeguards. However, in this case, it was noted
that the immunities are subject to a range of exceptions. In light of these
exceptions, it is unclear whether the measure is sufficiently circumscribed so
as to ensure the limitation is proportionate.
2.507
The committee therefore sought the advice of the minister as to:
-
whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including whether the exceptions to the
'use/derivative use' immunities are sufficiently circumscribed).
Minister's response
2.508
In relation to the legitimate objective of the measure, the minister's
response points to 'reducing administrative burdens'. However, as noted above,
this does not appear to be a legitimate objective for the purposes of
international human rights law. Although not advanced in the minister's response,
a legitimate objective of the measure may be to ensure the effective
investigation of fraud.
2.509
In relation to the proportionality of the limitation, the minister's
response states:
The limitation on the right to self-incrimination is
reasonable and proportionate. The common law right to silence preventing use of
the information or documents against the person providing them is retained,
other than in proceedings for the provision of false information. In these
circumstances, this measure is a proportionate limitation on an individual's
right to freedom from self-incrimination, because the Department of Human
Services depends on individuals disclosing complete and accurate information in
order to ensure the sustainability and integrity of the social security system.
This limitation is also consistent with section 9.5.1 of the
Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement,
which deals with the privilege against self-incrimination. The Guide states
that the privilege against self-incrimination does not apply "where it is
alleged that a person has given false or misleading information".
2.510
The availability of immunities under proposed section 197A including a
'use' and a 'derivative use' immunity, is relevant to whether the limitation is
proportionate.[233]
In relation to the scope of exemptions to these immunities, it appears that
they are in relation to offences involving fraud or misrepresentation including
in relation to obtaining social security payments.[234] The particular context of
the limitation is that the receipt of social security benefits is contingent
upon the accurate provision of information. The existence of the immunities in
relation to the provision of information that may go to other offences is
relevant to the proportionality of the limitation.
Committee response
2.511
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.512
On balance, the committee considers that the measure is likely to
be compatible with the right not to incriminate oneself.
Schedule 18 – Exempting social security laws from disability discrimination
law
2.513
The Social Security Act 1991 is currently exempt from the Disability
Discrimination Act 1992. After this exemption was established, certain
provisions from the Social Security Act 1991 were transferred to two new
acts – the Social Security Administration Act and the Social Security
(International Agreements) Act 1999. The exemption from the Disability
Discrimination Act 1992 was not extended to these two new acts. The bill
seeks to include the Social Security Administration Act and the Social
Security (International Agreements) Act 1999 in the list of legislation
exempt from the operation of the Disability Discrimination Act, as well as
legislative instruments made under the Social Security Act 1991 and the Social
Security Administration Act.
Compatibility of the measure with
the right to equality and non-discrimination
2.514
As discussed earlier, 'discrimination' under international law
encompasses differential treatment on the basis of a protected attribute, such
as disability, as well as treatment having a disproportionate impact on people
with a protected attribute.[235]
However, differential treatment based on a protected attribute may be
permissible where it is a 'special measure'.
2.515
The initial analysis stated that, as the proposed schedule extends the
exemption from the Disability Discrimination Act 1992 to two additional
acts and legislative instruments, the measure engages and limits the right to
equality and non‑discrimination.
2.516
In relation to the purpose of the measure, the statement of
compatibility states that:
This exemption from the Disability Discrimination Act is
designed to ensure that social security pensions, allowances and benefits,
including for people with disability, can be appropriately targeted according
to the purposes of the payments....
Payments under social security law are made to eligible people on the
basis of a variety of factors such as their health, disability, age, income and
asset levels. This ensures that Australia’s social security system is targeted
based on people’s circumstances and need and constitutes legitimate
differential treatment.[236]
2.517
It was noted that section 45 of the Disability Discrimination Act
1992 already exempts special measures 'designed to assist people who have a
disability to obtain greater equality of opportunity or provide them with
benefits to meet their special needs'. An exemption therefore is not required
in order to pay benefits to people with disabilities, but would be required for
measures which negatively impact people with a disability, such as reducing or
suspending payments to those who fail to meet mutual obligation requirements
due to their disability where that disability is a drug or alcohol dependency.
2.518
The previous analysis stated that it was unclear from the limited
information provided in the statement of compatibility as to why such a broad
exemption is required for all social security laws, given section 45 of the
Disability Discrimination Act.
2.519
The committee therefore sought further information from the minister as
to how the broad exemption of all social security law is permissible under
international law, in particular why such an exemption is required in view of
section 45 of the Disability Discrimination Act.
Minister's response
2.520
In response to the committee's questions in this regard, the minister's
response provides that:
The Disability Discrimination Act 1992 plays a vital
role in protecting people with disability from unfair treatment and promoting
equal rights, opportunity and access. These changes are required to align
social security and disability discrimination law to ensure consistent
treatment in relation to social security entitlements.
Payments under social security law are made to eligible
people on the basis of a variety of factors such as their health, disability,
age, income and asset levels. This ensures that Australia's social security
system is targeted based on people's circumstances and need.
As noted in the Explanatory Memorandum, the Social
Security Act 1991 has been exempt from the operation of the disability
discrimination law since the Disability Discrimination Act commenced in 1992.
This ensures that pensions and allowances, including for those with disability,
can be appropriately targeted to particular groups without this being
considered discriminatory.
The amendments at Schedule 18 will ensure that this existing
exemption from the Disability Discrimination Act in relation to pensions and
allowances applies consistently to all of the social security law, in line with
its original intent. This does not change eligibility for payments under social
security law (which will continue to be appropriately targeted according to
their purpose) or the broader protections that the Disability Discrimination
Act provides to people with disability.
Section 45 of the Disability Discrimination Act is designed
to ensure that special measures - i.e. programs, facilities, employment
opportunities that exist and are limited to people with disabilities in order
to particularly support their participation are not considered to be
discriminatory under the Act. Special measures could be considered a form of
positive discrimination towards people with disabilities. This section of the
Act does not relate to the exemption of social security law from the Disability
Discrimination Act.
The Government considers that the appropriate ways of
ensuring that the disability discrimination law applies consistently across
social security law is through the amendments proposed at Schedule 18.
2.521
The minister's response explains that the purpose of the measure is to
align social security and disability discrimination law to ensure consistent
treatment in relation to social security entitlements, noting that the Social
Security Act 1991 has been exempt from the operation of the disability
discrimination law since the Disability Discrimination Act commenced in 1992.
The minister further states that section 45 of the Disability Discrimination
Act does not relate to the exemption from social security law from the
Disability Discrimination Act.
2.522
However, as noted in the previous analysis, under international human
rights law, exemptions for differential treatment are permissible where they
constitute a 'special measure', that is, a specific measure 'necessary to accelerate
or achieve the de facto equality of persons with disabilities'.[237]
Special measures are generally measures granting a benefit or preference to
members of a disadvantaged group, designed to advance the rights of members of
those groups. Accordingly, it is permissible (and not discriminatory under
international human rights law) to provide social security arrangements
specifically for the benefit of persons with disabilities. Section 45 of the
Disability Discrimination Act reflects this and would appear to allow
Australia’s social security system to be targeted based on people’s
circumstances and need and provide adequate levels of support for persons with
disabilities. It is not apparent, from the perspective of measures benefitting
persons with disabilities, why the exemption in the proposed measure is
necessary to align social security laws and disability discrimination law.
2.523
What the proposed measure would allow is laws or government action which
may adversely impact people with a disability, such as reducing or suspending
payments to those who fail to meet mutual obligation requirements due to their
disability. Insofar as the proposed measure would permit the government to take
social security measures which adversely impact persons with disabilities, as a
form of either direct or indirect discrimination, it falls outside permissible
‘special measures’ and may therefore be incompatible with the right to equality
and non-discrimination.
Committee response
2.524
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.525
The exemption from the Disability Discrimination Act could be
compatible with the right to social security insofar as Australia's social
security system is appropriately targeted based on need and provides adequate
levels of support for persons with a disability. However, it is noted that the
application of section 45 of the Disability Discrimination Act would allow for
social security measures benefitting persons with disabilities without such
measures constituting discrimination. The proposed exemption may therefore be
overly broad in allowing for measures that adversely impact persons with
disabilities, noting that special measures under international human rights law
must have the object of advancing the rights of members of vulnerable groups. Accordingly,
the measure may be incompatible with the right to equality and
non-discrimination.
Treasury Laws Amendment (Agricultural Lending Data) Regulations 2017
[F2017L00706]
Purpose |
Seeks to allow the
Australian Prudential Regulation Authority to collect data on debt held by
the agricultural sector and share it with the Department of Agriculture and
Water Resources for the purposes of assisting the department to perform its
functions or exercise its powers |
Portfolio |
Treasury |
Authorising legislation |
Australian Prudential
Regulation Authority Act 1998; Financial
Sector (Collection of Data) Act 2001 |
Last day to disallow |
15 sitting days after
tabling (tabled in the House of Representatives 22 June 2017; tabled in the
Senate 8 August 2017) |
Right |
Privacy (see Appendix 2) |
Previous report |
9 of 2017 |
Status |
Concluded examination |
Background
2.526
The committee first reported on the Treasury Laws Amendment
(Agricultural Lending Data) Regulations 2017 [F2017L00706] (the regulations) in
its Report 9 of 2017, and requested a response from the treasurer by 20
September 2017.[238]
2.527
The treasurer's response to the committee's inquiries was received on
29 September 2017. The response is discussed below and is reproduced in
full at Appendix 3.
Power to collect and disclose information
2.528
Under the Financial Sector (Collection of Data) Act 2001 (FSCDA),
information may be collected from a financial sector entity (such as banks) by
the Australian Prudential Regulation Authority (APRA) for the purpose of
assisting another financial sector agency to perform its functions or exercise
its powers.
2.529
The regulations prescribe the department administering the Agricultural
and Veterinary Chemicals Act 1994 (presently, the Department of Agriculture
and Water Resources) as a 'financial sector agency' for the purposes of the
FSCDA. The regulations thereby extend APRA's powers to collect and disclose
information in respect of the department.
2.530
Currently, it is an offence under section 56(2) of the Australian
Prudential Regulation Authority Act 1998 (APRA Act) for an APRA officer to
directly or indirectly disclose protected documents and information.[239]
However, there is an exception to this offence under section 56(5) of the APRA
Act where a disclosure will assist an agency specified by regulation to perform
its functions or exercise its powers and the disclosure is to that agency.[240]
The regulations also specify the department as an agency for the purposes of section 56(5)
of the APRA Act.
Compatibility of the measure with
the right to privacy
2.531
The right to privacy includes respect for informational privacy,
including the right to respect private information, particularly the storing,
use and sharing of personal information; and the right to control the
dissemination of information about one's private life.
2.532
The initial human rights analysis stated that, by extending APRA's
powers to collect and disclose information to the department, the measure
engages and limits the right to privacy. The statement of compatibility for the
regulations notes that the amendments will allow APRA to collect and disclose
to the department data on debt held by the agricultural sector. The statement
of compatibility acknowledges that this information from financial sector
entities may include personal information, including the borrowing and lending
activities of agricultural sector participants.[241]
2.533
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be rationally
connected and proportionate to achieving that objective.
2.534
The statement of compatibility states that the regulations do 'not
engage any of the applicable rights or freedoms'.[242]
However, while the statement of compatibility does not specifically acknowledge
that the measure engages and limits the right to privacy, it nevertheless
concludes that the collection and sharing of personal information arising from
the regulations does not constitute an arbitrary or unlawful interference with the
right to privacy as:
The collection and sharing will be conducted lawfully and in
furtherance of legitimate policy goals. It will have the defined and limited
purpose of assisting [the department] to perform its functions and exercise its
powers.
2.535
No further information is provided in the statement of compatibility to
justify this limitation.
2.536
It was noted that the explanatory statement nevertheless provides some
information as to the objective of the measure:
The Government seeks to improve the quality of available data
on debt held by the agricultural sector in order to support policies that
better target assistance measures to farmers. More specifically, over time, the
improved data would enable the Government to better target assistance measures
such as concessional loans, the Rural Financial Counselling Service and a
nationally consistent Farm Debt Mediation scheme. It may also assist with
developing and implementing other assistance measures, such as mental health
and social support measures, community development measures and income support
measures.[243]
2.537
As the initial analysis noted, providing means through which policies
may better target assistance measures to farmers is likely to be a legitimate
objective for the purposes of international human rights law. The collection
and disclosure of information also appears to be rationally connected to this
objective, insofar as such information may assist the department exercising its
powers and functions.
2.538
However, it was unclear from the information provided in the statement
of compatibility that the measures impose a proportionate limitation on the
right to privacy in pursuit of that stated objective. In particular, the
statement of compatibility provides no information as to whether there are
adequate safeguards in place with respect to the exercise of this power.
2.539
Laws that interfere with the right to privacy must specify in detail the
precise circumstances in which such interferences may be permitted.[244]
As set out above, section 56(5) of the APRA Act allows a person to disclose
protected information or documents (which may include personal information)
when the person is satisfied that the disclosure will assist the department to
perform its functions or exercise its powers. While the APRA Act restricts
disclosure to circumstances where disclosure will assist the department to
perform its functions or exercise its powers, the regulations do not provide
any guidance as to how, and under what circumstances, a person may be
'satisfied' that the disclosure of information would assist the department.
2.540
Further, the power for information to be collected or disclosed to
assist the department 'to perform its functions or exercise its powers' is
broader than the stated purpose of the measure (to promote policies that
provide assistance to farmers through the collection and disclosure of data on
debt in the agriculture sector). In these respects, the previous analysis
assessed that the regulations appear to be overly broad with respect to the
stated objective and do not appear to provide satisfactory legal safeguards.
2.541
Further, limitations on the right to privacy must be no more extensive
than what is strictly necessary to achieve the legitimate objective of the
measure. The statement of compatibility does not examine whether there are less
rights restrictive ways to achieve the objective of the measure, including any
safeguards that may apply in relation to the sharing of personal information.
2.542
The committee therefore sought the advice of the treasurer as to whether
the limitation is a proportionate measure for the achievement of the stated
objective (including whether the measure is sufficiently circumscribed and
whether there are adequate and effective safeguards with respect to the right
to privacy).
Treasurer's response
2.543
The treasurer's response provides the following information in relation
to the committee's inquiries:
The Regulations allow the Australian Prudential Regulation
Authority (APRA) to collect data on debt held by the agricultural sector and
share it with the Department of Agriculture and Water Resources (DAWR) for the
purpose of assisting DAWR to perform its functions and exercise its powers.
This is consistent with existing arrangements for APRA to collect and share
financial sector information with the Australian Bureau of Statistics and the
Department of Health.
I consider that the limitations on the right to privacy
imposed by the Regulations are reasonable for the achievement of the stated
objective and that there are adequate and effective safeguards in place with
respect to the right to privacy.
As the Committee notes, the explanatory statement identifies
improved targeting of assistance measures to farmers as an objective of the
Regulations. Reflecting this, the relevant reporting standard (ARS 750.0) only
seeks to collect information on the amount and nature of debt at a state and
agricultural activity level.
In addition to the recent public consultation on the
collection of the data, APRA will consult further on the publication of
statistics on agricultural lending later this year. This will provide a further
opportunity to address any concerns about confidentiality.
In collecting, sharing and using the information in question,
APRA and DAWR must comply with the Privacy Act 1988 ('Privacy Act') and
the Australian Prudential Regulation Authority Act 1998 ('APRA Act').
To support compliance, APRA and DAWR are entering into a
Cooperative Working Agreement that outlines the two agencies' use of the data.
This covers DAWR's policies and procedures to maintain the confidentiality of
data, and stipulates that DAWR will only publicly release data obtained from
APRA if that data is prepared by APRA for public release, consistent with its
obligations. APRA will prepare that data in such a way that it will not be
possible to derive information relating to any particular person.
When preparing that data for public release, APRA will comply
with its internal policy and procedure for the Release of Statistics, which
exceeds the legal requirements in the APRA Act and the Privacy Act. This policy
contains further measures to ensure confidentiality and privacy are maintained
when releasing the data publicly, including a privacy risk assessment and a
confidentiality analysis that measures an entity's representation in a
statistic.
In addition to the above, the application of the Australian
Public Service Code of Conduct to APRA and DAWR provides for additional
protection of confidential information.
2.544
On the basis of the information provided in the treasurer's response, on
balance, the measure appears likely to be a proportionate limit on the right to
privacy. The information provided by the treasurer that the relevant reporting
standard (ARS 750.00) only seeks to collect information on the amount and
nature of debt at a state and agricultural level clarifies that the collection
and disclosure may only occur for that narrow purpose, which is consistent with
the legitimate objective of the measure (to promote policies that provide
assistance to farmers through the collection and disclosure of data on debt in
the agriculture sector).
2.545
The further information provided by the treasurer in relation to
compliance with the Privacy Act 1988 and the Australian Prudential
Regulation Authority Act 1998, as well as the additional measures taken by
APRA together with the Department of Agriculture and Water Resources to protect
confidentiality when preparing any data for public release, indicates that
there are likely to be adequate safeguards in place in relation to the sharing
of personal information. While the treasurer's response did not specifically
address how, and under what circumstances, a person may be 'satisfied' that the
disclosure of information would assist the department, on balance it appears
that any limitation on the right to privacy is proportionate.
Committee response
2.546
The committee thanks the treasurer for his response and has
concluded its examination of this issue.
2.547
The committee notes that, on the basis of the information
provided and the preceding analysis, the measure appears likely to be
compatible with the right to privacy.
Mr Ian Goodenough MP
Chair
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