Senate

Supplementary Explanatory Memorandum relating to sheet TK326

(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 for volunteers.

Human rights implications

The amendments have possible impacts on 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 enhanced IM.

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The Bill will ensure a person who was on the CDC on a voluntary basis and is transferred to enhanced IM will not move back onto the BasicsCard, but will be given a contemporary card that provides 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 rights to equality and non-discrimination are not affected by the abolition of the CDC program and reform of IM. The abolition of CDC has not been applied on the basis of race or cultural factors; all CDC program areas are included in the program removal. The arrangements may apply to a high proportion of First Nations people. However, they largely operate on a voluntary basis.

Those who reside in an existing CDC program area who receive an eligible welfare payment, will be transitioned from voluntary CDC to voluntary enhanced IM and new entrants in existing CDC sites (other than in the Northern Territory and Cape York area) will able to volunteer for enhanced IM should they choose. Where a person is automatically transitioned to voluntary enhanced IM, they will be able to request that they cease being subject to enhanced IM while new volunteers will be able to terminate their voluntary enhanced IM agreements. In this respect, the amendments are reasonable, necessary and proportionate to their purpose.

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'.

The abolition of the CDC program will not affect or interfere with a person's right to freely pursue their economic, social or cultural development due to their largely voluntary nature.

Those who volunteer to participate in enhanced IM will be choosing to keep part of their welfare payments qualified (quarantined), either for budgeting purposes or to protect welfare payments so others are not able to access them. This does not encroach upon, and may even enhance, the right to self-determination. As a volunteer of the program, participants will have 50 per cent of their welfare payments qualified for expenditure on priority needs.

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.

The abolition of the CDC program is compatible with and does not limit the right to an adequate standard of living for affected people. Participants who transition from the CDC program to voluntary enhanced IM will be able to access unrestricted welfare payments paid into their nominated bank account. The arrangements for voluntary enhanced IM mean that a person can notify the Secretary that they wish to terminate their participation and thereby bringing voluntary payment quarantining to an end.

Those who volunteer for enhanced IM will still have their rights to an adequate standard of living, including food, water and housing maintained. The only limits placed on those who volunteer will be in relation to excluded goods and services (i.e. alcohol, gambling, tobacco and pornographic material), or cash-like product that could be used to obtain excluded goods and excluded services. Excluded goods and services are not essential for maintaining a standard of living.

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 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. The new voluntary enhanced IM arrangement provides a mechanism to ensure that recipients of social security entitlements use a percentage of their welfare payments to acquire goods and services that will satisfy the person's priority needs. A person may opt out of the voluntary arrangements. Thus, to the extent that the right to social security may be limited, those 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. The abolition of the CDC program and the reform of voluntary IM in CDC program areas will promote the protection of human rights by giving individuals appropriate choice over how they receive their welfare payments. 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.