Supplementary Explanatory Memorandum relating to sheet ZA181
(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 the Northern Territory.
Human rights implications
This Bill and the amendments engage the following rights:
- •
- the rights of equality and non-discrimination
- •
- the right to self-determination
- •
- the right to an adequate standard of living, including food, water and housing
- •
- 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. The amendments will ensure a person who was on the CDC and is transitioned to enhanced IM will not move back onto the BasicsCard, but will have a contemporary card that ensures a modern functionality.
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 right to equality and non-discrimination is not directly limited by enhanced IM arrangements, as the enhanced IM regime has not been applied on the basis of race or cultural factors. Enhanced IM arrangements for people whose usual residence is in the Northern Territory are based on objective criteria related to disengaged youth and long term welfare payment recipients. However, the arrangements may apply to a high proportion of First Nations people.
It is appropriate to transition CDC participants residing in the Northern Territory to enhanced IM as this will allow the cessation of the CDC program consistently with the needs of different welfare recipients in the Northern Territory (where approximately 23,000 individuals are currently subject to IM compared to approximately 4,000 IM participants who have chosen to move onto the CDC). There is a substantial concern that not transferring CDC participants who reside in the Northern Territory to enhanced IM would be discriminatory to the existing IM participants in the Northern Territory who remained on IM when the CDC was rolled out. The amendments will ensure that a consistent and impartial approach can be applied across the Northern Territory regardless of race or cultural factors.
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'.
Under the enhanced IM regime, participants will be able to spend the qualified (quarantined) portion of their payment only on goods or services that will meet their priority needs. This excludes expenditure on alcohol, gambling, tobacco, pornographic material and cash-like products that could be used to purchase those excluded goods and services.
To an extent, the Bill limits the human right of self-determination as it may impact on a person's ability to freely determine their economic or social development. However, by ensuring an individual's welfare payments are directed at priority needs, the amendments ensure the enhanced IM regime will address and curtail passive welfare, antisocial behaviour and entrenched disadvantage to positive social expectations. The qualified and unqualified portions for welfare restrictions are reduced by the Bill from 80% and 20% to 50% and 50%.
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 transfer from CDC to enhanced IM in the Northern Territory 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, tobacco and pornographic material) or cash-like products that could be used to obtain excluded goods and services. This is critical to realising the objective of the enhanced 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 insofar 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 right to social security is limited only to the extent that CDC program participants residing in the Northern Territory who transition to enhanced IM may not use their payment to purchase excluded goods and services or cash-like products in areas where there has been demonstrated high levels of adverse behaviours or community harm. The amendments made by this Bill do not detract from the eligibility of a person to receive welfare or reduce the amount of a person's social security entitlement.
Rather, by transitioning eligible individuals residing in the Northern Territory to 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. To the extent that the right to social security may be limited, the limitations are reasonable, necessary and proportionate to prioritise basic living needs. 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 as they are targeted towards addressing and curtailing passive welfare, antisocial behaviour and entrenched disadvantage. The measures are reasonable, necessary and proportionate to achieving the objectives of abolishing the CDC program and reforming the IM regime in Australia, 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.