Purpose of the bill
The Social Services Legislation Amendment (Drug Testing Trial) Bill 2019 (bill) establishes a mandatory drug testing trial of 5000 recipients of Newstart Allowance and Youth Allowance (Other) in three locations: Canterbury-Bankstown, New South Wales; Logan, Queensland; and Mandurah, Western Australia.
Drug test trial participants who test positive to a testable drug will become subject to income management for two years and be required to undergo further random drug tests, the first of which will occur within 25 working days after the initial positive drug test. If the second test is also positive, the participant may be required to complete drug treatment activities.
Welfare Reform bill
The drug testing trial was first announced during the 2017–18 Budget speech and was included as Schedule 12 of the Social Services Legislation Amendment (Welfare Reform) Bill 2017 (Welfare Reform bill), which was introduced into the House of Representatives on 22 June 2017.
The Welfare Reform bill was referred to the Senate Community Affairs Legislation Committee (committee) for inquiry and report, and 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.
2018 drug testing trial bill
The Social Services Legislation Amendment (Drug Testing Trial) Bill 2018 (2018 bill) – a second iteration of the drug testing trial legislation with almost identical terms to Schedule 12 of the Welfare Reform bill – was introduced in the House of Representatives on 28 February 2018. On 22 March 2018, the provisions of the 2018 bill were referred to the committee for inquiry and report.
The 2018 bill differed from the Welfare Reform bill in the following ways:
the drug test trial area was specified; and
a new sub-clause provided 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 wellbeing.
The committee conducted hearings for the 2018 bill inquiry in two of the trial locations, Canterbury-Bankstown on 23 April 2018 and Logan on 24 April 2018. The committee heard evidence from witnesses from all three trial locations, as well as from social services providers and experts in alcohol and other drug treatments and policy.
The committee presented its report to the Senate on 7 May 2018, recommending that the bill be passed and including two recommendations relating to the trial's research methodology. These recommendations and the subsequent Government Response are discussed in Chapter 2 of this report.
The 2018 bill was introduced into the Senate on 14 August 2018 and lapsed on 1 July 2019 at the end of the 45th Parliament.
The provisions of the bill establish a drug testing trial with the following parameters:
the drug trial locations are the local government areas of: Canterbury-Bankstown, New South Wales; Logan, Queensland; and Mandurah, Western Australia;
the trial period is 24 months;
the trial will apply only to certain illicit drugs ('testable drugs');
trial participants are eligible to be tested for these drugs if during the trial period their usual place of residence is in a trial location and they are receiving Newstart or Youth Allowance (Other);
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 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 in Schedule 1, Part 2, 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' on 20 March 2020 or on the commencement of the bill, whichever occurs later.
The bill is nearly identical to the 2018 bill, with the following differences:
the list of testable drugs has been updated to specify 'heroin' and 'cocaine' rather than 'opioids';
in the part relating to drug test repayment deductions, subsection 1206XA(4), has been redrafted to provide that a drug test repayment amount arises only for each positive retest that was carried out at the request of the person being tested; and
clauses relating to mutual obligations for jobseekers, which in the 2018 bill were contingent on the commencement of Social Services Legislation Amendment (Welfare Reform) Act 2018, have been moved into Schedule 1, Part 1 of this bill.
The provisions of this bill and of its predecessors have been considered by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights.
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) considered the bill in Scrutiny Digest No. 6 of 2019, reiterating comments made in its consideration of the 2018 bill and directing readers to Scrutiny Digest No. 3 of 2018.
In that earlier report, the Scrutiny Committee noted that the 2018 bill was substantially similar to Schedule 12 of the Welfare Reform bill and restated its comments and the former Minister's response. The Scrutiny Committee's concerns about that schedule included:
that significant matters were placed in delegated legislation, including matters relating to the confidentiality of drug test results and the provision for the Secretary to determine a period longer than 24 months for the trial (subsection 123UFAA(1B));
that the contractor is provided with the power to effectively determine who is subject to income management but that its 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) to consider whether to exercise the power in proposed subsection 123UFAA(1C).
The Explanatory Memorandum for the bill notes that, in response to the comments of the Scrutiny Committee on the Welfare Reform bill, paragraphs 123UFAA (1C) and (1D) have 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 emotional wellbeing. This change was first made to the 2018 bill.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had not finalised its consideration of the bill before the committee's reporting date.
However, it did consider the 2018 bill and the Welfare Reform bill, raising concerns that the legislation interfered with and limited the rights to privacy, bodily integrity, social security and equality and non-discrimination.
These comments were noted and discussed in submissions from the Australian Human Rights Commission and the Centre for Excellence in Child and Family Welfare Inc.
The Statement of compatibility with human rights for the bill accepts that some human rights are impacted by the bill, 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
Pursuant to the adoption of the Selection of Bills Committee report, the bill was referred to the committee on 12 September 2019 for inquiry and report by 10 October 2019.
The committee advertised the inquiry on its website and invited submissions by 27 September 2019. The committee received 51 submissions, listed at Appendix 1 of this report.
The committee also conducted a public hearing in Canberra on 2 October 2019. A list of witnesses for that hearing is included at Appendix 2 of this report.
Notes on references
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and final copies.