Supplementary Explanatory Memorandum
(Circulated by the authority of the Minister for Social Services, the Hon Christian Porter MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Services Legislation Amendment (Welfare Reform) Bill 2017
Schedule 10 - Start date for some participation payments
The amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
Overview of the amendments
An ordinary waiting period is a 7 day waiting period which certain income support claimants are subject to, and which generally commences on a person's start day. From the commencement of Schedule 10, a RapidConnect participant's start day will usually be later than the start day of a Newstart Allowance or Youth Allowance (other) claimant who is not a RapidConnect participant.
These amendments will ensure that the amendments made by Item 2 of Schedule 10 to the Bill will not affect how a start day is worked out for the purposes of determining:
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- when an ordinary waiting period commences for a RapidConnect participant; and
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- whether a RapidConnect participant is subject to an ordinary waiting period in circumstances where they:
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- received an income support payment in the 13 weeks immediately prior to the person's start day; or
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- are experiencing a personal financial crisis (which may include being subject to domestic violence or severe financial hardship in the 4 weeks immediately prior to the person's start day).
In short, the operation of ordinary waiting periods, whether or not a person is subject to RapidConnect, will remain as it currently is.
Human rights implications
The amendments engage the following human rights:
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- the right to social security: Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
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- the right to an adequate standard of living: Article 11 of the ICESCR.
Right to social security and an adequate standard of living
Article 9 of the ICESCR recognises the right of everyone to social security. The right to social security requires States to establish a social security system and, to the maximum of their available resources (as required by Article 2 of the ICESCR), ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
Article 11 of the ICESCR recognises the right of everyone to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions.
The effect of the amendments is that RapidConnect participants subject to an ordinary waiting period will not be unduly disadvantaged by their later start day in calculating when their ordinary waiting period commences or in determining whether they are subject to an ordinary waiting period.
The amendments will ensure that the ordinary waiting period continues to operate in accordance with existing rules and commences on the same day irrespective of whether the job seeker is subject to RapidConnect. This promotes a RapidConnect participant's right to social security and an adequate standard of living by ensuring that the ordinary waiting period is applied consistently in line with its original intent.
Conclusion
The amendments are compatible with human rights because they promote and preserve the rights to social security and to an adequate standard of living.
Schedule 12 - Establishment of a drug testing trial
The amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
Overview of the amendments
The amendment to the definition of drug testing trial pool member at section 23(1) removes the requirement for a person to be residing in a drug testing trial site when they make a claim for Newstart Allowance or Youth Allowance (other) in order to be eligible to participate in the trial. It was intended that recipients who resided in a drug test trial area when making a claim for Newstart Allowance or Youth Allowance (other), as well as those who claimed one of these payments while residing outside a trial location but subsequently moved into a drug test trial area, could be selected for drug testing. This amendment ensures that all recipients who live in the trial area at the time of the trial, and would be otherwise eligible, can participate in the trial.
Amendments are also being made to new subsections 123UFAA(1C) and (1D) of the Social Security Administration Act. The amendments ensure that although the Secretary is not obliged to make inquiries about a person's wellbeing if they are referred for income management, if information comes to the Secretary's attention that indicates income management may seriously risk the person's wellbeing, the Secretary must determine that the person is not subject to the income management regime if the Secretary is satisfied that being subject to the regime would pose a serious risk to the person's mental, physical and emotional wellbeing.
Human rights implications
The Statement of Human Rights Compatibility relating to Schedule 12 of the Social Security Legislative Amendment (Welfare Reform) Bill 2017 describes in detail how that schedule, which enacts the drug testing trial of new Newstart Allowance and Youth Allowance (other) recipients in three trial sites, engages with the various human rights. It concludes that Schedule 12 is compatible with human rights because, to the extent that it may impact human rights, the impact is for a legitimate objective, and is reasonable, necessary and proportionate.
The effect of the amendment to section 23(1) is that people who claim Newstart Allowance or Youth Allowance (other) during the drug test period, but who reside outside of the drug test locations at the time of claim, will be covered by the definition of drug test trial pool member if they later move into a trial test location during the trial period as originally intended. The human rights implications for these job seekers will be the same as for other drug testing trial pool members as outlined in the Statement of Compatibility with Human Rights to the Welfare Reform Bill.
From 1 January 2018, all people making a claim for Newstart Allowance or Youth Allowance (other) will be asked to acknowledge in the claim form that they may be required to undergo drug testing as a condition of payment, noting that testing will only occur in the trial locations. This will ensure that all job seekers are aware of their potential obligations in relation to drug testing whether or not they are residing in a trial location at the time of claim.
The human rights impacts of this measure on participants who are referred to income management through the trial are described in detail in the Statement of Compatibility with Human Rights for the Welfare Reform Bill. The amendments to subsections 123UFAA(1C) and (1D) enhance protection and support for job seekers who are referred to income management by requiring that the Secretary must determine that they not be subject to the income management regime, if the Secretary becomes aware of information satisfying them that this regime would pose a serious risk to their wellbeing.
The amendments clarify that the Secretary is not required to actively take steps to assess the possible wellbeing impact on every trial participant who is referred to income management. However, once the Secretary has received facts that indicate income management may seriously risk a person's well-being, an assessment process into whether income management would risk a person's well-being could commence. This process would be both comprehensive and undertaken by suitably qualified professionals.
If the Secretary is satisfied that being subject to the regime under that subsection would pose a serious risk to the person's mental, physical or emotional wellbeing, and makes a determination to this effect, the person will not be subject to income management while that condition is met.
The amendments contained in this Bill do not alter the substance of the drug testing trial measure, and the assessment of Schedule 12's compatibility with human rights in the Welfare Reform Bill remains valid.
Schedule 16 - Streamlining Tax File Number Collections
The amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
Overview of the amendments
The amendments to Schedule 16 will allow the request for tax file number provisions in the social security law to apply to a relevant third-party as part of a person's claim for a social security payment, and to an income-tested health care card. The amendments will also allow the use of tax file numbers to verify qualification for the seniors health card and an income-tested health care card.
Human rights implications
The amendments in relation to an income-tested health care card engage the following human rights:
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- the right to social security: Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
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- the right to an adequate standard of living: Article 11 of the ICESCR.
This is because of the consequence that would arise if a person did not satisfy a request to provide a tax file number, which is that the person's claim for an income-tested health care card would not be granted or an existing card would be cancelled.
The amendments in relation to social security payments and the seniors health card do not engage the rights noted above, as the amendments streamline the existing administrative process through which tax file numbers are already collected and do not remove access to social security payments. The amendments aim to improve the general integrity and administration of the social security system and are machinery in nature.
Right to social security and an adequate standard of living
Article 9 of the ICESCR recognises the right of everyone to social security. The right to social security requires States to establish a social security system and, to the maximum of their available resources (as required by Article 2 of the ICESCR), ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.
Article 11 of the ICESCR recognises the right of everyone to an adequate standard of living including adequate food, water and housing, and to the continuous improvement of living conditions.
The amendments in relation to an income-tested health care card would limit these rights to the extent that a person did not satisfy a request to provide a tax file number. However, this consequence is consistent with the existing administration of the tax file number provisions for social security payments and the seniors health card. The amendments would rectify an anomaly of treating health care cards differently, and would enhance the arrangements for protecting the integrity of the social security system.
Conclusion
The amendments in relation to an income-tested health care card are compatible with human rights because they only impose limitations on the rights to social security and to an adequate standard of living that are reasonable, necessary and proportionate to uphold these rights by protecting the integrity of the social security system.