Inquiry into the provisions of the Social Services Legislation Amendment
(Drug Testing Trial) Bill 2018
Purpose of the Bill
The Social Services Legislation Amendment (Drug Testing Trial) Bill 2018
(Bill) establishes a mandatory drug testing trial of 5000 recipients of
Newstart Allowance and Youth Allowance (Other) in Canterbury-Bankstown, New
South Wales; Logan, Queensland and Mandurah, Western Australia.
Trial participants who test positive to an illicit drug specified as
part of the trial will be placed on income management for a period of 24 months
and those who return two positive drug tests in the 24 month period may be
required to submit to drug treatment.
In his 2017 Budget speech, the Treasurer, the Hon. Scott Morrison MP,
...we will commence a modest drug testing trial for 5,000 new
JobSeeker recipients who test positive would be placed on the
Cashless Debit Card for their welfare payments and be subjected to further
tests and possible referral for treatment.
On 22 June 2017, the Social Services Legislation Amendment (Welfare
Reform) Bill 2017 (Welfare Reform Bill) was introduced into the House of
Representatives. Schedule 12 of the Welfare Reform Bill included a drug testing
trial in almost identical terms to the current Bill.
On the same day, the Welfare Reform Bill was referred to the Senate
Community Affairs Legislation Committee (committee) for inquiry and report pursuant
to the adoption of the Senate Selection of Bills Committee report.
The committee presented its report to the Senate on 6 September 2017.
On 7 December 2017, the Senate, on the motion of the government, agreed
to remove Schedule 12 from the Welfare Reform Bill.
On 28 February 2018, the Hon. Dan Tehan MP, Minister for Social
Services, introduced the Bill in the House of Representatives.
The Bill differs from the Welfare Reform Bill in the following ways:
the drug test trial area is specified in the Bill,
new sub-clause 123UFAA(1C) of the Social Security (Administration)
Act 1999 provides that the Secretary must determine that a person is not
subject to income management if the Secretary has reason to believe that it
would pose a serious risk to the person's mental, physical or emotional
The provisions of the Bill establish a drug testing trial with the
the drug trial areas are the local government areas of
Canterbury-Bankstown, New South Wales; Logan, Queensland and Mandurah, Western
the trial period is 24 months;
the trial will apply only to certain illicit drugs (testable
trial participants who test positive to a testable drug will be
placed on income management for a period of 24 months;
trial participants may request that a positive drug test sample
be retested, but the trial participant will be required to pay for the retest
if it returns a positive result;
failing to comply with a notice from the Secretary to provide a
sample means a trial participant's payment is not payable and will be cancelled.
The trial participant will be required to serve a 28 day drug test refusal
waiting period before they are eligible to receive the payment again.
The Bill also contains provisions to ensure that the provisions of the Social
Security Act 1991, Social Security (Administration) Act 1999 and Farm
Household Support Act 2014 amended by the Bill reflect the change in the
name from 'Newstart Allowance' to 'Jobseeker Payment' when Part 1 of Schedule 1
of the Welfare Reform Bill commences.
The committee recognises the work undertaken by the Senate Scrutiny of
Bills Committee and the Parliamentary Joint Committee on Human Rights.
Scrutiny of Bills Committee
The Senate Scrutiny of Bills Committee considered the Bill in Scrutiny
Digest 3 of 2018.
As the Bill is substantially similar to Schedule 12 of the Welfare Reform Bill,
the committee restated its comments and the former Minister's response
contained in Scrutiny Digest 8 of 2017 which considered the relevant
part of the Welfare Reform Bill.
The Senate Scrutiny of Bills Committee raised the following concerns
about Schedule 12 of the Welfare Reform Bill:
that significant matters were placed in delegated legislation,
including confidentiality of drug test results and that proposed subsection
123UFAA(1B) of the Social Security (Administration) Act 1999 (item 24) would
allow the Secretary to determine a period longer than 24 months for the trial;
that the contractor would be provided with the power to
effectively determine who is subject to income management, but that the
contractor's responsibilities were not articulated in the Bill; and
that judicial review was limited because there was no obligation
on the Secretary under proposed subsection 123UFAA(1D) (item 24) to consider
whether to exercise the power in proposed subsection 123UFFA(1C).
The Explanatory Memorandum to the Bill notes that in response to the
comments of the Senate Scrutiny of Bills Committee on the Welfare Reform Bill,
item 24 (paragraphs 123UFAA (1C) and (1D)) of the Bill has been strengthened to
provide that the Secretary must determine that a person will not be subject to
income management if the Secretary is satisfied that placing the person on
income management would pose a serious risk to the person's mental, physical or
Parliamentary Joint Committee on
The Parliamentary Joint Committee on Human Rights considered the Bill in
Report 3 of 2018. The committee referred to and endorsed its earlier
human rights analysis of Schedule 12 of the Welfare Reform Bill.
That analysis raised concerns that Schedule 12 interfered with and limited the
rights to privacy, bodily integrity, social security and equality and
In its submission, the Australian Human Rights Commission endorsed the
Parliamentary Joint Committee on Human Rights' analysis.
The Statement of compatibility with human rights attached to the
Explanatory Memorandum accepts that some human rights are impacted, but notes
that 'to the extent that it may impact human rights, the impact is for a
legitimate objective, and is reasonable, necessary and proportionate'.
Conduct of the inquiry
On 22 March 2018, pursuant to the adoption of the Selection of Bills
Committee report, the Bill was referred to the committee for inquiry and report
by 7 May 2018.
The committee advertised the inquiry on its website and invited
submissions by 11 April 2018. The committee received 49 public submissions
which are listed at Appendix 1 of this report.
The committee conducted two public hearings in connection with the
inquiry. The first was held in Canterbury-Bankstown on 23 April 2018 and the
second was held in Logan on 24 April 2018. A list of the witnesses that
appeared at each hearing can be found at Appendix 2 of this report.
This matter was also extensively canvassed during the committee's
Welfare Reform Bill inquiry, including at public hearings in Sydney on 30
August 2017 and Melbourne on 31 August 2017.
Notes on references
In this report, references to Committee Hansard are to proof transcripts.
Page numbers may vary between proof and final copies.
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