House of Representatives

Explanatory Memorandum

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

Statement of compatibility with human rights

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

SOCIAL SECURITY LEGISLATION AMENDMENT(DEBIT CARD TRIAL) BILL 2015

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.

Overview of the Bill

The Bill will insert a new Part into the Social Security (Administration) Act 1999 (the Act) to enable a trial of cashless welfare arrangements delivered via a restricted bank account and associated debit card.

The amendments will enable a trial phase of a new debit card, in response to a key recommendation from Mr Andrew Forrest's Review of Indigenous Jobs and Training. The trial will be conducted up to three locations. These locations will be selected on the basis of high levels of welfare dependence and where gambling, alcohol and/or drug abuse are causing unacceptable levels of harm within the community.

To test effectively the concept of the Forrest recommendation, 80 per cent of payments received by people on a working age welfare payment, such as newstart allowance, will be placed in a restricted bank account. A person will not be able to use the debit card associated with the restricted bank account to access cash or use the restricted money in the account for gambling, alcohol or drugs. Recognising that we do not live in a cashless society and that people need cash for minor expenses such as children's lunch money or bus fares, the remaining 20 per cent of payments will be available for use at a person's discretion.

In trial locations, the debit card will work as similarly as possible to any other bank card. The trial will seek to ensure the card will work at all existing terminals and shops, except excluded businesses such as those exclusively selling restricted products, as well as online where possible. The only difference will be that the debit card will not allow the purchase of alcohol and gambling products or cash withdrawals.

Human rights implications

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, within its maximum available resources, to 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'.

The trial of cashless welfare arrangements, which restricts what welfare payments can be spent on, will not detract from the eligibility of a person to receive welfare nor reduce the amount of a person's social security entitlement. Rather, the trial provides 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'. The trial does not detract 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.

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'.

The trial of cashless welfare arrangements does not limit this right for affected people in trial locations. Under trial arrangements, people will be able to use restricted funds to access any goods and services with the exception of alcohol and gambling products, with the aim of reducing abuse of these goods and services and associated harm and violence. It would not have the effect of restricting access to essential needs required to maintain an adequate standard of living. Access to some discretionary cash will be available to ensure that people can still participate in cash economies to purchase items which contribute to adequate standard of living.

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'.

A trial of cashless welfare arrangements will not impact on or interfere with a person's right to pursue freely their economic, social or cultural development. Under a trial, people will be able to spend their restricted funds on any goods or services except alcohol, gambling and illegal drugs as a result of having less access to discretionary cash. This limitation is to ensure that vulnerable people are protected from abuse of these substances, and associated harm and violence. Comprehensive community consultation will be conducted before the trial commences to gauge community interest and support in the arrangements, including from local community leaders.

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). 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 a 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 result 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'.

A trial of cashless welfare arrangements is aimed at achieving legitimate objectives and will not be applied on the basis of race or cultural factors. Locations for a trial will be chosen based on objective criteria, such as high levels of welfare dependence and community harm, as well as the outcomes of comprehensive consultation with prospective communities.

Anyone residing in locations where the trial operates, and receiving a specified working age payment, will become a trial participant. The trial is therefore not targeted at people of a particular race, but to welfare recipients who meet particular criteria. People in trial locations will also be able to volunteer for the trial. Local boards will be able to vary the proportion of a person's rate of restriction (although not to less than 50 per cent), and this function will not be based on any racial or cultural aspect of a person.

The rights of children

By ensuring that a portion of income support payments is used to cover essential goods and services, a trial of cashless welfare arrangements 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. A trial of cashless welfare arrangements 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 that 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.