House of Representatives

Replacement Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Scott Morrison MP)

Statements of compatibility with human rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SERVICES LEGISLATION AMENDMENT (No. 2) BILL 2015

Schedule 1 - Income management regime

This Schedule 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.

Overview of the legislative amendments

Income management and the BasicsCard will continue for two additional years to maintain support for existing income management participants. The amendments in this Schedule will make a number of changes to streamline the income management programme to enable more effective operation of the programme.

The key objectives of income management under the social security law are to:

•

reduce immediate hardship and deprivation by directing welfare payments to the priority needs of a recipient and their partner, children and any other dependents;

•

help affected welfare payment recipients to budget so they can meet their priority needs;

•

reduce the amount of discretionary income available for alcohol, gambling, tobacco and pornography;

•

reduce the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments; and

•

encourage socially responsible behaviour, particularly in the care and education of children.

Human rights implications

The right to social security

Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises 'the right of everyone to social security, including social insurance'. The United Nations Committee of Economic, Social and Cultural Rights (the UN Committee) has stated that implementing this right requires a country to, within its maximum available resources, provide '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 form of education'.

Measures such as income management, which restrict what welfare can be spent on, would not detract from the eligibility of a person to receive welfare, nor reduce the amount of a person's social security entitlement. Rather, these types of arrangement provide a mechanism to ensure that certain recipients of social security entitlements use a proportion of their entitlement to acquire essential items, including all of those referred to by the UN Committee.

The UN Committee has stated that the right to social security encompasses the right to access and maintain benefits 'in cash or in kind'. Neither arrangement detracts from situations in which someone has the right to social security, such as unemployment and workplace injury, and family and child support - it simply supports a person further once they have achieved their right to receive social security.

The right to an adequate standard of living

Article 11(1) of the ICESCR states that everyone has the right to 'an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions', and that 'appropriate steps' be taken to 'ensure realisation of this right'. Further to this, article 11(2) of the ICESCR states that 'measures, including specific programmes,' should be taken in 'recognising the fundamental right of everyone to be free from hunger'.

With regard to the right to an adequate standard of living, income management does not limit this right given that the programme supports individuals to achieve and maintain an adequate standard of living through the purchase of essential goods and services, including food, clothing, water and housing, which are all classified as priority needs under Part 3B of the Act and which income managed funds can be used to purchase. The programme therefore aims to advance this right through ensuring that money is available for priority goods and services, such as housing, food and clothing, in situations where individuals need additional support to meet these needs. In turn, this helps stabilise an individual's living circumstances and financial situation, enabling them to focus on caring for children and/or joining or returning to work.

Income management does not restrict the availability, adequacy and accessibility of essential needs required to maintain an adequate standard of living. The availability, adequacy and accessibility of essential needs is maintained through the ability of income managed recipients to purchase goods and services through a range of payment options, including via direct deductions to third parties through the Department of Human Services and a wide footprint of merchants that accept BasicsCard, both within and outside areas in which income management currently operates. Recipients are not required to pay for replacement BasicsCards.

The right to self-determination

Article 1 of the ICESCR states that 'all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development'.

The continuation of income management and expansion to any new communities will not affect the means of subsistence or political status of any person or group, but will require that, subject to certain exceptions, 50 per cent of the social security payments of people subject to the income management regime must be spent on priority goods and services such as food and rent. While income management does to an extent limit a person's ability to spend their social security payments freely on excluded goods and services, it does not impact on or interfere with their right to pursue freely their economic, social or cultural development. The limitation under income management on how social security payments may be spent is to ensure that the essential needs of vulnerable people are met and that they are protected against risks of homelessness and financial exploitation. Community consultation would be undertaken prior to any expansion of the programme to new locations to ascertain how income management might support people and what model would work best.

This limitation is reasonable and proportionate to achieve a legitimate objective, as discussed above, and is necessary to promote other rights by ensuring that income support payments are used to meet the essential needs of vulnerable people and their dependents, and that these people are protected against risks of homelessness and financial exploitation. Any limitation that may occur is therefore necessary to pursue the legitimate objectives of the programme.

The rights of equality and non-discrimination

The rights of equality and non-discrimination are provided by 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). In particular, Article 5 of the CERD requires parties 'to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour or national or ethnic origin, to equality before the law' notably in the enjoyment of 'the right to...social security and social services' (Article 5(e)(iv)).

Discrimination is impermissible differential treatment among persons or groups that results in a person or a group being treated less favourably than others, based on a prohibited ground for discrimination, such as race. However, the UN Human Rights Committee has recognised that 'not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective, and if the aim is to achieve a purpose which is legitimate under the Covenant'.

Measures such as income management, which restrict what welfare can be spent on, are aimed at achieving legitimate objectives and are not applied on the basis of race or cultural factors. Income management operates in a range of locations which were chosen based on demonstrated high levels of disadvantage indicated by a range of factors which are reasonable, objective and non-race based, such as the number of people receiving welfare payments and the length of time people have been receiving welfare payments.

People may go onto income management for a range of reasons, including:

•

being in receipt of particular welfare payments; or

•

having been referred for income management; or

•

having volunteered to participate.

Anyone residing in a location where income management operates is eligible for income management, as long as specific eligibility criteria are met. Income management is therefore not targeted at people of a particular race, but to income support recipients who meet particular criteria.

To the extent that income management measures may disproportionately affect Indigenous people, any such limitation is reasonable and proportionate to achieve its objectives. As evidenced by the evaluations of income management conducted to date in the locations in which it operates, the programme has led to an increase in funds being directed towards people's priority needs, leading to improvements in wellbeing for individuals, families and children.

The rights of children

By ensuring that a portion of income support payments is used to cover essential goods and services, income management can improve living conditions for the children of income support recipients. It thereby advances the right of children to the highest attainable standard of health and the right of children to adequate standards of living (articles 24, 26 and 27 of the Convention on the Rights of the Child, respectively).

Conclusion

The amendments are compatible with human rights. Income management will advance the protection of human rights by ensuring that income support payments are spent in the best interests of welfare payment recipients and their dependents. To the extent they may limit human rights, those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behaviour, and reducing the likelihood that welfare payment recipients will be subject to harassment and abuse in relation to their welfare payments.

Schedule 2 - Ceasing residential care subsidy for pre-entry leave

Schedule 3 - Aged Care Planning Advisory Committees

These Schedules 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.

Ceasing residential care subsidy for pre-entry leave

Overview of the legislative amendments

This measure will implement the removal of residential care subsidy for pre-entry leave, announced in the Mid-year Economic and Fiscal Outlook 2014-15.

Currently, under subsection 42-3(3) of the Aged Care Act 1997, a care recipient may take leave for up to seven days prior to entering permanent residential care. This is referred to as pre-entry leave. During this period, a provider is still eligible to receive an amount of residential care subsidy in respect of the care recipient's care costs, but at the reduced rate of 30 per cent of the full amount of the residential care subsidy that will be payable once the resident enters the service. The Government does not pay any supplements in respect of the care recipient's accommodation costs for the period of pre-entry leave.

Currently, the aged care provider is able to charge the care recipient the standard resident contribution and a means-tested care fee (calculated on the reduced residential care subsidy rate) for any day taken as pre-entry leave. Nothing is payable by the care recipient in respect of the care recipient's accommodation costs.

Currently, any days taken as pre-entry leave are counted as part of the care recipient's entitlement to 52 days of social leave from the aged care service.

The aged care provider will not be able to recoup any lost residential care subsidy from the care recipient as a result of this measure.

Human rights implications

The measure is compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health, as contained in article 11(1) and article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 28 of the Convention on the Rights of Persons with Disabilities (CRPD).

The measure also engages the right to health, relating to the provision of aged care services, as contained in article 25 of the CRPD by ensuring that a care recipient retains the right to access pre-entry leave for up to seven days prior to entering a residential care service. The amendments also prohibit an aged care provider from recouping any amount representing residential care subsidy for the pre-entry period from the care recipient. This ensures that a care recipient is not financially disadvantaged as a result of this legislative change.

In addition, the exclusion of leave taken as pre-entry leave from a care recipient's entitlement to 52 days of social leave per annum from an aged care service supports the care recipient's human rights by ensuring any pre-entry leave taken by a care recipient does not negatively impact their allocated entitlements to social leave from the residential care service.

Conclusion

Schedule 2 to this Bill is compatible with human rights as it is compatible with the human right to health and the right to an adequate standard of living. To the extent that the Schedule limits this right by ceasing the payment of residential care subsidy and supplements payable to an approved provider while a care recipient is on certain types of leave from residential care, the limitation is reasonable and mitigated by the protections outlined above.

Aged Care Planning Advisory Committees

Overview of the legislative amendments

This measure reflects the Government's decision to abolish the Aged Care Planning Advisory Committees as part of the Smaller Government initiative. The Aged Care Planning Advisory Committees' role was to provide advice in relation to the distribution of aged care places.

Human rights implications

This measure does not engage any of the applicable rights or freedoms.

The Smaller Government reforms are reducing the size and complexity of government. Ongoing functions of the Aged Care Planning Advisory Committees will be performed by the Department.

Conclusion

Schedule 3 to this Bill is compatible with human rights as it does not raise any human rights issues.

[Circulated by the authority of the Minister for Social Services, the Hon Scott Morrison MP]