Supplementary Explanatory Memorandum relating to sheet TK324
(Circulated by the authority of the Minister for Social Services, the Hon Amanda Rishworth MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
SOCIAL SECURITY (ADMINISTRATION) AMENDMENT (REPEAL OF CASHLESS DEBIT CARD AND OTHER MEASUERS) ACT 2022
This Bill is 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.
The Bill delivers the Australian government's election commitment to abolish the Cashless Debit Card (CDC). The Bill will also facilitate a transition to the new enhanced Income Management (IM) arrangements in certain cases. This Statement of Compatibility with Human Rights addresses the Bill amendments that establish enhanced IM in prescribed community areas.
Human rights implications
This Bill and amendments engages the following human rights or freedoms:
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- the rights of equality and non-discrimination
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- the right to self-determination
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- the right to an adequate standard of living, including food, water and housing
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- the right to social security.
These rights and a number of other considerations are addressed in turn below.
General safeguards
A number of general safeguards that will help to protect human rights have been incorporated into the proposal to abolish the CDC program and reform IM.
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- The Bill amendments ensure that people in prescribed community areas who were on the CDC program will transition to enhanced IM and be able to access a contemporary debit card that provides modern functionality.
The amendments affirm the role of the FRC in prescribed community areas as a community-led model, which enables community-controlled decision-making and promotes self-determined decision making at a local level. The FRC will decide whether its community members should be placed on the enhanced IM program, which will ensure continuity for participants whom the FRC considers should be subject the enhanced IM program after the CDC program ceases.
The rights of equality and non-discrimination
The rights of equality and non-discrimination are provided for in a number of the seven core international human rights treaties to which Australia is a party, most relevantly the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Racial Discrimination (the CERD).
The rights to equality and non-discrimination are not affected by the abolition of the CDC program and reform of traditional IM. The removal of the CDC program will not apply on the basis of race or cultural factors. All CDC program areas including those under the Queensland Commission (FRC) measure are included in the program removal. The arrangements will apply to a high proportion of First Nations people but are being sought by those communities to assist with addressing and curtailing passive welfare, antisocial behaviour and entrenched disadvantage.
The right to self-determination
Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that all people have the right of self-determination, which includes the right to 'freely pursue their economic, social and cultural development'.
By ensuring the continuation of the FRC referral model, the amendments ensure that IM in prescribed community areas can continue as intended to address and curtail passive welfare, antisocial behaviour and entrenched disadvantage. FRC commissioners will be able to determine how much of a participant's payment should be qualified, based on an assessment of the participant's holistic situation. A commissioner can also vary the qualified portion if required which allows for a level of discretion, as opposed to a 'one size fits all' approach. Therefore, self-determination is maintained as this is a community-endorsed model to address concerns relating to those most vulnerable to social harms.
The right to an adequate standard of living, including food, water and housing
Article 11(1) of the ICESCR states that everyone has the right to an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions. Further to this, article 11(2) of the ICESCR states that the fundamental right of everyone to be free from hunger should be recognised.
Those who transition to enhanced IM in prescribed community areas will still have their rights to an adequate standard of living, including food, water and housing maintained. The only limits placed on those who transition will be in relation to excluded goods and services (i.e. alcohol, gambling services, tobacco and pornographic material), or cash like products that could be used to obtain excluded goods and services. Excluded goods and services are not essential for maintaining an adequate standard of living, and their exclusion is critical to realising the objective of the IM program, which is to ensure welfare payments are directed towards priority goods and services, such as housing, food and bills.
The right to social security
Article 9 of the ICESCR recognises the right of everyone to social security. In accordance with Article 4 of the ICESCR, the State may limit this right only in so far as such limitations may be compatible with the nature of these rights and solely for the purpose of 'promoting the general welfare in a democratic society'.
The amendments made by this Bill do not detract from the eligibility of a person to receive welfare, nor reduce the amount of a person's social security entitlement. Rather, by transitioning individuals in prescribed community areas onto the enhanced IM program, the amendments provide a mechanism to ensure that recipients of social security entitlements use a percentage of their payment to acquire essential items only. To the extent that the right to social security may be limited by the amendments, the limitations are reasonable, necessary and proportionate to prioritise basic living needs and are an essential element of the Government's election commitment to support First Nations people to make their own decisions about the way forward. Further, the measures proposed are 'promoting the general welfare' of people through the prioritisation of their expenditures.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. Whilst the Bill may limit human rights for participants in prescribed community areas, the Bill also ensures that IM in prescribed community areas can continue as intended to address and curtail passive welfare, antisocial behaviour and entrenched disadvantage. Retaining the FRC model in prescribed community areas also allows the Commission to meet its statutory obligations under the FRC Act. The measures introduced via the Bill are reasonable, necessary and proportionate to achieving the objectives of abolishing the CDC program and reforming the traditional IM regime in Australia.