House of Representatives

Supplementary Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Christian Porter MP)

OUTLINE

Amendments to be moved on behalf of the Government to Schedules 10, 12 and 16 of the Social Services Legislation Amendment (Welfare Reform) Bill 2017.

Schedule 10 - Start date for some participation payments

The amendments to Schedule 10 of the Bill will ensure 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.

Schedule 12 - Establishment of a drug testing trial

The amendments to Schedule 12 of the Bill clarify that newstart allowance or youth allowance (other) recipients who move into a drug test trial after commencement of the drug testing trial measure may be selected for drug testing.

The amendments will also clarify the Secretary's obligation with respect to whether a person is subject to income management if there is a risk to the person's mental, physical or emotional wellbeing.

Schedule 16 - Streamlining Tax File Number Collection

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.

FINANCIAL IMPACT STATEMENT

These amendments will not alter the financial impact of the Bill.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The statement of compatibility with human rights appears at the end of this supplementary explanatory memorandum.

Schedule 10 - Start date for some participation payments

Summary

The amendments to Schedule 10 of the Bill amend the provisions in the Social Security Act that determine whether a person on Newstart Allowance or Youth Allowance (other) is subject to an Ordinary Waiting Period (OWP), and the commencement of that period.

Under Schedule 10 of the Bill, the day on which these payments become payable for persons subject to RapidConnect and who are also subject to an OWP would be later than intended. The effect of these amendments is that there will be no changes as a result of the Bill to whether or not a person is subject to an OWP, or when that OWP begins - whether they are subject to RapidConnect or not.

Background

Schedule 10 of the Bill amends the day from which Newstart Allowance or Youth Allowance (other) for job seekers who are subject to RapidConnect becomes payable (that is, their start day). For persons not subject to an OWP, the new start day will be the day the job seeker attends their first appointment with an employment services provider, unless the provider is unable to offer an appointment within two business days, the person has a reasonable excuse for not attending their first appointment, or the person is not qualified for the allowance on the day.

The Social Security Act provides that the OWP is a period of 7 days that generally commences on the day the person's payment would start, but for their serving an OWP. Currently, that day is usually the day they make their claim for income support under the general start day rule in the Social Security Administration Act.

Because Schedule 10 generally makes the start day for persons subject to RapidConnect the day they attend their appointment, rather than the day of their claim (as is currently the case), the OWP for these people will instead begin on the day of their attendance at the appointment, not from the day of their claim. This means that a person subject to both an OWP and RapidConnect will usually have their OWP commence later, and therefore end later, than a person who is subject to an OWP, but not subject to RapidConnect. As a person cannot be paid their payment until after their OWP ends (at the earliest), these people will have to wait longer for their payment to start than was intended under the amendments in Schedule 10.

These amendments to Schedule 10 amend the OWP provisions so that the OWP for people subject to RapidConnect will commence on the same day as for people not subject to RapidConnect, as is currently the case under the social security law.

These amendments will also ensure that Schedule 10 to the Bill will not affect the calculation of certain time periods relating to whether a RapidConnect participant is subject to an OWP, in particular 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).

Explanation of the changes

Social Security Act

Amendment (1 ) inserts new Item 1A . This item inserts a reference to clause 4A of Schedule 2 to the Social Security Administration Act, into paragraph 549CA(2)(a) of the Social Security Act.

Paragraph 549CA(2)(a) currently provides that, subject to subsection 549CA(3), a person who is qualified for youth allowance (other) is subject to an ordinary waiting period unless, at some time in the 13 weeks immediately before the person's start day (which is worked out disregarding clause 5 of Schedule 2 to the Social Security Administration Act), the person received an income support payment. Item 1A amends paragraph 549CA(2)(a) to provide that a person's start day for the purposes of that paragraph is worked out disregarding both clause 4A and clause 5 of Schedule 2 to the Social Security Administration Act.

This amendment ensures that the amendments made by Item 2 of Schedule 10 to the Bill (that is, the insertion of clause 4A into Schedule 2 to the Social Security Administration Act), will not affect how the start day is worked out for the purposes of determining whether a youth allowance (other) claimant who is also a RapidConnect participant is subject to an ordinary waiting period under paragraph 549CA(2)(a). The 13 week period referred to in paragraph 549CA(2)(a) will be worked out by reference to a start day that will be the same for both youth allowance (other) claimants who are RapidConnect participants, and youth allowance (other) claimants who are not RapidConnect participants.

Another effect of the amendment in Item 1A is that the calculation of certain time periods relating to whether a RapidConnect participant is subject to an ordinary waiting period in circumstances where they are experiencing a personal financial crisis will not be affected by the amendments made by Item 2 of Schedule 10. The 4 week periods referred to in subsections 19DA(2), 19DA(3) and paragraph 19C(4)(a)(iv) of the Social Security Act will also be based on the start day worked out disregarding both clauses 4A and 5 of Schedule 2 to the Social Security Administration Act (see below).

Under paragraph 549CA(2)(b), a person who is qualified for youth allowance (other) is subject to an ordinary waiting period unless the Secretary is satisfied that the person is 'experiencing a personal financial crisis'. The definition of when a person is 'experiencing a personal financial crisis' is contained in section 19DA of the Social Security Act, and is when a person is in severe financial hardship, and either subsection 19DA(2), (3) or (4) applies to the person. Subsection 19DA(2) applies where the person was subject to domestic violence at some time in the 4 weeks immediately before the person's start day mentioned in, relevantly, paragraph 549CA(2)(a). Subsection 19DA(3) applies where the person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure in the 4 weeks immediately before the person's start day mentioned in, relevantly, paragraph 549CA(2)(a). The definition of 'unavoidable or reasonable expenditure' in paragraph 19C(4)(a)(iv) provides that unavoidable or reasonable expenditure includes the reasonable costs of living that the person is taken to have incurred in respect of the 4 weeks immediately before the person's start day mentioned in, relevantly paragraph 549CA(2)(a).

By ensuring that clause 4A of Schedule 2 is disregarded in the calculation of the start day in paragraphs 549CA(2)(a), the relevant 4 week periods referred to in subsections 19DA(2), 19DA(3) and paragraph 19C(4)(a)(iv) of the Social Security Act will also be worked out by reference to a start day that will be the same for both youth allowance (other) claimants who are RapidConnect participants, and youth allowance (other) claimants who are not RapidConnect participants, as is currently the case.

Amendment (2 ) inserts new Items 1B and 1C . Item 1B inserts a reference to clause 4A of Schedule 2 to the Social Security Administration Act into subsection 549CB(1) of the Social Security Act.

Subsection 549CB(1) currently provides that, subject to subsections 549CB(2) and (4), if a youth allowance (other) claimant is subject to an ordinary waiting period, the ordinary waiting period is the period of 7 days that starts on the person's start day (worked out disregarding clause 5 of Schedule 2 to the Social Security Administration Act). Item 1B amends subsection 549CB(1) to provide that a person's start day for the purposes of that subsection is worked out disregarding both clause 4A and clause 5 of Schedule 2 to the Social Security Administration Act.

This amendment ensures that the amendments made by Item 2 of Schedule 10 to the Bill will not affect how the start day is worked out for the purposes of determining when an ordinary waiting period commences for a youth allowance (other) claimant who is also a RapidConnect participant. The day an ordinary waiting period commences under subsection 549CB(1) will be the same for both youth allowance (other) claimants who are RapidConnect participants, and youth allowance (other) claimants who are not RapidConnect participants.

Item 1C inserts a reference to clause 4A of Schedule 2 to the Social Security Administration Act into paragraph 549CB(2)(b) of the Social Security Act.

This amendment is consequential to the amendment made by Item 1B. Subsection 549CB(2) determines when an ordinary waiting period commences for a youth allowance (other) claimant where the person would otherwise be subject to an ordinary waiting period of 7 days that starts on the person's start day (worked out disregarding clause 5 of Schedule 2 to the Social Security Administration Act), but where the person is subject to one or more exclusion periods. Item 1C amends paragraph 549CB(2)(b) to provide that a person's start day for the purposes of that paragraph is worked out disregarding both clause 4A and clause 5 of Schedule 2 to the Social Security Administration Act.

Amendment (3 ) inserts new Item 1D . This item inserts a reference to clause 4A of Schedule 2 to the Social Security Administration Act into paragraph 620(1)(a) of the Social Security Act.

Paragraph 620(1)(a) currently provides that, subject to subsection 620(2), a newstart claimant is subject to an ordinary waiting period unless, at some time in the 13 weeks immediately before the person's start day (which is worked out disregarding clause 5 of Schedule 2 to the Social Security Administration Act), the person received an income support payment. Item 1D amends paragraph 620(1)(a) to provide that a person's start day for the purposes of that paragraph is worked out disregarding both clause 4A and clause 5 of Schedule 2 to the Social Security Administration Act.

As discussed above regarding the amendments made by Item 1A in relation to youth allowance (other) claimants, this amendment ensures that the amendments made by Item 2 of Schedule 10 to the Bill will not affect how the start day is worked out for the purposes of determining whether a newstart claimant who is also a RapidConnect participant is subject to an ordinary waiting period under paragraph 620(1)(a).

Another effect of the amendment in Item 1D is that the calculation of certain time periods relating to whether a RapidConnect participant is subject to an ordinary waiting period in circumstances where they are experiencing a personal financial crisis will not be affected by the amendments made by Item 2 of Schedule 10. The 4 week periods referred to in subsections 19DA(2), 19DA(3) and paragraph 19C(4)(a)(iv) of the Social Security Act will also be based on the start day worked out disregarding both clauses 4A and 5 of Schedule 2 to the Social Security Administration Act.

Under paragraph 620(1)(g), a newstart claimant is subject to an ordinary waiting period unless the Secretary is satisfied that the person is 'experiencing a personal financial crisis'. As discussed above in relation to the amendments made by Item 1A, the definition of when a person is 'experiencing a personal financial crisis' is contained in section 19DA of the Social Security Act. Subsections 19DA(2) and (3) also refer to a person begin subject to domestic violence or severe financial hardship in the 4 weeks immediately prior to the person's start day mentioned in, relevantly paragraph 620(1)(a). Similarly, the relevant definition of 'unavoidable or reasonable expenditure' in paragraph 19C(4)(a)(iv) also refers to the reasonable costs of living that the person is taken to have incurred in respect of the 4 weeks immediately before the person's start day mentioned in, relevantly, paragraph 620(1)(a).

By ensuring that clause 4A of Schedule 2 is disregarded in the calculation of the start day in paragraph 620(1)(a), the relevant 4 week periods referred to in subsections 19DA(2), 19DA(3) and paragraph 19C(4)(a)(iv) of the Social Security Act will also be worked out by reference to a start day that will be the same for both newstart claimants who are RapidConnect participants, and newstart claimants who are not RapidConnect participants, as is currently the case.

Amendment (4 ) inserts new Items 1E and 1F . Item 1E inserts a reference to clause 4A of Schedule 2 to the Social Security Administration Act into subsection 621(1) of the Social Security Act.

Subsection 621(1) currently provides that, subject to subsections 621(3) and (5), if a newstart claimant is subject to an ordinary waiting period and not disqualified for newstart under section 589 (liquid assets test), the ordinary waiting period is the period of 7 days that starts on the person's start day (worked out disregarding clause 5 of Schedule 2 to the Social Security Administration Act). Item 1E amends subsection 621(1) to provide that a person's start day for the purposes of that subsection is worked out disregarding both clause 4A and clause 5 of Schedule 2 to the Social Security Administration Act.

As discussed above regarding the amendments made by Item 1B in relation to youth allowance (other) claimants, this amendment ensures that the amendments made by Item 2 of Schedule 10 to the Bill will not affect how the start day is worked out for the purposes of determining when an ordinary waiting period commences for a newstart claimant who is also a RapidConnect participant.

Example:

Jenny makes a claim for newstart allowance on 1 February 2018 and is identified as a RapidConnect participant. On 2 February, Jenny is given a notice under section 63 of the Social Security Administration Act to attend an appointment with her employment provider on the next business day, 5 February 2018. She attends that appointment on 5 February 2018 as required.

Jenny is subject to an ordinary waiting period under subsection 620(1) of the Social Security Act. The day the waiting period commences is determined under subsection 621(1) and will be Jenny's start day which is worked out disregarding clause 4A and clause 5 of Schedule 2 to the Social Security Administration Act. Jenny's start day for the purposes of subsection 621(1) of the Social Security Act is therefore worked out under clause 3(1) of Schedule 2 to the Social Security Administration Act, which is the day she made her claim (1 February 2018). Consequently, Jenny's ordinary waiting period is the 7 day period from 1 February 2018 - 7 February 2018. This would have been Jenny's ordinary waiting period even if she was not a RapidConnect participant.

Jenny's actual start day is worked out under clause 5 of Schedule 2 to the Social Security Administration Act. As a RapidConnect participant, if she was not subject to an ordinary waiting period, Jenny's start day would be worked out under clause 4A(4) of Schedule 2, and would be the day she attended the appointment with her employment provider (5 February 2018). However, because she is serving an ordinary waiting period on 5 February 2018, her start day is worked out under clause 5(1)(a) of Schedule 2 instead. This is the day after her ordinary waiting period ends. Because Jenny's ordinary waiting period ends on 7 February 2018, the start day for her newstart allowance is 8 February 2018.

Item 1F inserts a reference to clause 4A of Schedule 2 to the Social Security Administration Act into paragraph 621(3)(b) of the Social Security Act.

This amendment is consequential to the amendment made by Item 1E. Subsection 621(3) determines when an ordinary waiting period for a newstart claimant commences where the person would otherwise be subject to an ordinary waiting period of 7 days that starts on the person's start day (worked out disregarding clause 5 of Schedule 2 to the Social Security Administration Act), but where the person is subject to one or more exclusion periods. Item 1F amends paragraph 621(3)(b) to provide that a person's start day for the purposes of that paragraph is worked out disregarding both clause 4A and clause 5 of Schedule 2 to the Social Security Administration Act.

Schedule 12 - Establishment of a drug testing trial

Summary

The amendments to Schedule 12 of the Bill amend the definition of drug test trial pool member to be inserted into subsection 23(1) of the Social Security Act and new subsections 123UFAA(1C) and (1D) of the Social Security Administration Act.

Background

Schedule 12 of the Bill enables mandatory drug testing to be trialled for two years for new recipients of Newstart Allowance and Youth Allowance (other) in three regions from 1 January 2018. Recipients who test positive to the initial drug test will be subject to income management for a 24 month period.

New recipients of Newstart Allowance and Youth Allowance (other) who reside in the drug test trial area will be randomly selected to undertake a drug test. 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. However, due to the definition of drug test trial pool member which is to be inserted into subsection 23(1) of the Social Security Act, new recipients who make a claim for one of these payments, while residing outside a drug test trail area but later move into the area, are excluded from the drug testing trial. The amendment to Schedule 12 will correct this and give effect to the Government's proposed policy as intended.

Amendments will also be made to new subsections 123UFAA(1C) and (1D) of the Social Security Administration Act in Schedule 12 following comments by the Senate Scrutiny of Bills Committee about the operation of subsection 123UFAA(1D). To address the Committee's concerns, the amendments will ensure that 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 that regime would pose a serious risk to the person's mental, physical and emotional wellbeing.

However, the amendments ensure that the Secretary has no obligation to make inquiries about a person's wellbeing. Any such inquiry about a person's wellbeing would need to be comprehensive and conducted by appropriate professionals. The inclusion of subsection 123UFAA(1D) ensures that this inquiry, which would be unnecessary for most people and administratively burdensome, would not be undertaken unless it came to the Secretary's attention that there was a serious risk to a person's mental, physical or emotional wellbeing.

Explanation of provisions

Amendment 5 removes paragraph (d) of the definition of drug test trial pool member in item 1 of Schedule 12 so that a person whose usual place of residence at the time of making a claim is outside the drug test trial area is no longer excluded from being required to give a sample for the purposes of a drug test. Accordingly, a person is a drug test trial pool member a time if:

•

that time is in the drug test trial period; and

•

at that time the person's usual place of residence is in a drug test trial area; and

•

the person, as a result of a claim made in the drug test trial period, is receiving newstart allowance or youth allowance (other) (that is, a youth allowance recipient who is not a full-time student of a youth allowance Australian apprentice); and

•

if the claim was for youth allowance - the claim was for youth allowance (other).

Amendment 6 amends subsection 123UFAA(1C) in item 24 of Schedule 12 to omit the word 'may' and replace it with 'must'. The effect of this amendment is that the Secretary must determine that a person is not subject to the income management regime under subsection 123UFAA(1A) if the Secretary is satisfied that being subject to income management poses a serious risk to the person's mental, physical or emotional wellbeing.

Amendment 7 amends subsection 123UFAA(1D) in item 24 of Schedule 12 to omit the words 'consider whether to make a determination under subsection (1C)' and replace them with 'inquire into whether a person being subject to the income management regime under subsection (1A) poses a serious risk to the person's mental, physical or emotional wellbeing'. The effect of this amendment means that although the Secretary is not required to inquire into a person's wellbeing when the person becomes subject to income management, if the Secretary becomes aware that the person's mental, physical or emotional wellbeing may be affected by being on income management, the Secretary must determine that the person is not subject to the regime if satisfied that being subject to the regime poses a serious risk.

Schedule 16 - Streamlining Tax File Number Collections

Summary

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.

Background

Schedule 16 of the Bill amends the social security law to allow a request to provide a tax file number and/or a relevant third party's tax file number as part of a claim for a social security payment or seniors health card, and to prevent payment or provision of the card until the request is satisfied.

The amendments to Schedule 16 allow the application of the tax file number request provisions for a relevant third party to include a person who is making, or has made, a claim for a social security payment where the third party's income is relevant to the person's rate of payment. As currently drafted, Schedule 16 would unintentionally prevent the ability to request a third party's tax file number as part of a claim, as new paragraph 75(4)(a) of the Social Security Administration Act would only refer to a person who is 'receiving' a social security payment.

The amendments to Schedule 16 will also allow the tax file number provisions to apply to an income-tested health care card, consistent with the provisions for social security payments and the seniors health card.

The amendments to Schedule 16 will also allow the use of tax file numbers to verify qualification for the seniors health card and an income-tested health care card, consistent with the existing ability to use tax file numbers to verify qualification for a social security payment.

Explanation of the changes

Amendments (8) and (9 ) insert reference to a health care card that is income-tested for the request recipient into section 75 to be substituted by item 1 of Schedule 16 to the Bill. This will allow the Secretary (or delegate) to request a claimant for, or holder of, such a card to provide a tax file number.

Amendment (10 ) replaces proposed paragraph 75(4)(a) which sets out the circumstances in which a claimant may be requested to provide a tax file number of one or more other persons whose income is required to be taken into account in working out the rate of the payment. The substituted paragraph expands the time at which the request to provide a tax file number may be made to include a request of the claimant making their claim. Amendment (11 ) is consequential to amendment (7), making it clear that the social security payment about which the request under paragraph 75(4)(a) may be made is the same payment being claimed by the claimant, but may ultimately not be a payment paid to such claimant. For example, a youth allowance payment for a not independent young person may be paid to their parent on their behalf.

Amendments (12) and (13 ) amend section 76 which is to be substituted by item 1 of Schedule 16, dealing with how a request for a tax file number is satisfied. Amendment (12 ) removes the current reference in subsection 76(2) to a seniors health card and substitutes reference to a claim described in paragraph 75(1)(a) or (c). This allows the period described by this subsection for satisfaction of the tax file number request to apply also to a claim for an income tested health care card. Amendment (13 ) makes clear the reference in that subsection to paragraph 1(a) or (b) is to those paragraphs of section 76.

Amendments (14) and (15 ) modify section 77 substituted by item 1 of Schedule 16 to make clear the consequences of not satisfying the request for a tax file number. These amendments insert reference to a health care card that is income-tested for the person into table items 2 and 4, so that the consequences of not satisfying the request for the claimant of this card are the same as those for a claimant of a seniors health card.

Amendment (16 ) similarly inserts reference to a health care card that is income-tested for the person after the reference to a seniors health card in subsection 77(3), dealing with responses to the request for a tax file number involving the Secretary contacting the Commissioner of Taxation. This provides the same consequences for the holder of an income tested health care card as those for the holder of a seniors health card.

Amendment (17 ) expands section 204A, which provides the uses to which the Secretary may put information provided to the Secretary by the Commissioner of Taxation, including tax file numbers. New paragraph 204A(2)(ba) allows the use of this information to verify, in respect of persons who have made claims under the social security law for seniors health cards, or health care cards that are income-tested for those persons, the qualification of those persons for those cards.

Amendment (18 ) makes consequential amendments to insert a definition of income - tested into the Social Security Act, to support the use of this term in the tax file number provisions. The definition inserted into subsection 6A(1) by new item 1B provides that a health care card is income-tested for a person if the person is required by paragraph 1061ZO(2)(d), (3)(e) or (4)(d) to satisfy the health care card income test in order to qualify for the health care card.

Amendment (19 ) inserts new item 1C , consequential to item 1B. Item 1C inserts a cross-reference to the new definition in section 6A into subsection 23(1), which sets out general definitions.

Amendments (20) and (21 ) insert new items 3 and 4 to consequentially amend existing notes at subsection 37(8) and subsection 86(1) of the Social Security (Administration) Act. The amendments insert reference to the effect of section 75 and section 77 on claims for, or holders of, an income-tested health card card, as a result of the above amendments.

Amendment (22 ) similarly consequentially amends the definition of 'adverse determination' at section 121 ( item 5 ) to insert reference to the effect of section 77 for a holder of a health care card that is income-tested for a person.

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:

o

received an income support payment in the 13 weeks immediately prior to the person's start day; or

o

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:

•

the right to social security: Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

•

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:

•

the right to social security: Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

•

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.