Excerpts from Australian Human Rights Commission (AHRC) submission to the Senate Standing Committees on Community Affairs Senate Inquiry into Social Services Legislation Amendment (Cashless Debit Card) Bill 2017:
Human rights concerns
As a form of income management, the Social Services Legislation Amendment (Cashless Debit Card) Bill 2017 raises a number of human rights concerns, specifically around the right to social security, the right to a private life and the right to equality and non-discrimination. [my yellow highlighting]
The Commission has previously reported its concerns about the cashless debit card (also known as the Healthy Welfare Card) in our submission to the Inquiry into the Social Security Legislation Amendment (Debit Card Trial) Bill 2015 and in the Social Justice and Native Title reports for 2015 and 2016. 2
The Commission has particularly been concerned about the effects of these income management measures in relation to Aboriginal and Torres Strait Islander peoples, whom we have previously identified to be a group that are disproportionately impacted by such measures.3 As at September 2016, 75% of trial participants in Ceduna and 82% of trial participants in the East Kimberley were Indigenous.4
Whilst the Explanatory Memorandum acknowledges that trials of the cashless debit card are already underway in areas with high Indigenous populations, it proposes that future sites will give priority to locations with lower proportions of Aboriginal and Torres Strait Islander peoples.5
The Commission remains concerned that the measures will continue to disproportionately affect Aboriginal and Torres Strait Islander people, not just in the existing locations of the East Kimberley and Ceduna where Indigenous populations are high, but also in future locations.
This is the case because the measures proposed in the Bill target a section of the population who are receiving income support payments.
Hence, whilst the measures may not directly target Aboriginal and Torres Strait Islander peoples, their practical effect will unduly impact upon them, as government pensions and allowances are a main source of income for approximately 46.9% of this group.6
There are therefore concerns about whether the measures are inconsistent with the Racial Discrimination Act 1975 (Cth) and guarantee Aboriginal and Torres Strait Islander peoples equality before the law.
The Commission considers that the measures are not proportionate to the benefits sought by the Bill because their purpose could be achieved through other, less restrictive means and emphasises what it considers to be the preferred features of a system of income management:
* an approach that enables participants to voluntarily opt-in, rather than an automatic quarantining model (which then relies upon individual applications for exemptions)
* an approach that utilises income management as a ‘last resort’, particularly for targeted risk areas such as child protection (that is supported by case management and support services), similar to the Family Responsibilities Commission model in Queensland
* measures that are applied for a defined period and in a manner proportionate to the context.7
The Commission does not accept the arguments in the Statement of Compatibility with Human Rights that the measures justifiably limit the right to social security, privacy and non-discrimination and equality in pursuit of the objectives of Part 3D of the Act.8
As non-voluntary measures, they are applied to all income support recipients of working age in the trial areas,9 including those who do not have any issues with drugs, alcohol or gambling.
For the reasons outlined above and in the Commission’s previous submissions, the Commission does not agree with the assessment that the Bill or existing cashless debit card measures are compatible with human rights standards.10……
It is difficult to attribute the reported positive effects to the current trials as distinct from other factors such as increased support services, and other policy interventions.15 This is further exacerbated by the self-reporting nature of the report’s findings, which the evaluation itself states should be interpreted with caution and are subject to desirability bias.16
However, it is important to consider that where people have experienced modest benefits as a result of income management, when compared to its stated objectives,17 that these need to be weighed against its significant drawbacks.
The Commission does not accept that it is appropriate to extend these measures to additional sites in order to “build on these positive findings, and offer an opportunity to continue to test the card’s effectiveness in different settings and on a larger scale”.18 There is limited evidence to demonstrate that previous income management efforts have been effective and this is confirmed by the findings from the Orima report.
The Commission is therefore of the view that these measures unjustifiably impinge on the rights of trial participants, for little substantive benefit…..
Conclusion
Human rights protections are inadequately addressed in the Bill, the Explanatory Memorandum and in the Statement of Compatibility. The Commission is particularly concerned about the non-voluntary nature of the measures, and the disproportionate impact on Aboriginal and Torres Strait Islander peoples and those income support recipients who do not have drug, alcohol or gambling concerns. [my yellow highlighting]
The Commission is of the view that income management measures which are imposed and not community-driven lack efficacy.
The Commission is of the view that less intrusive measures aimed at changing behaviour rather than limiting access to and use of income will be more effective. It is for this reason that the Commission welcomes the investment of support services into these communities, but hopes that the appropriateness and level of engagement with such services improves.19
In light of these views, the Commission does not support the expansion of these measures as outlined in the Bill.
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2 Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the Social Security Legislation Amendment (Debit Card Trial) Bill 2015, 6 October 2015, At http://www.aph.gov.au/DocumentStore.ashx?id=14a9925c-245c-4a2e-9bfa-eeb6c843e505&subId=403485; Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2016, 88-97, At http://www.humanrights.gov.au/sites/default/files/document/publication/AHRC_SJNTR_2016.pdf; Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2015, 55-58, At http://www.humanrights.gov.au/sites/default/files/document/publication/SJRNTR2015.pdf.
3 Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the Social Security Legislation Amendment (Debit Card Trial) Bill 2015, 6 October 2015, 5.
4 Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2016, 91-92. See also Orima Research, ‘Cashless debit card trial evaluation: final evaluation report’ (Department of Social Services, 2017), 38, showing similar proportions as at June 2017.
5 Social Services Legislation Amendment (Cashless Debit Card) Bill 2017, Statement of compatibility with human rights, 4, 7.
6 Productivity Commission, Overcoming Indigenous Disadvantage Report 2016, 9.31. At: https://www.pc.gov.au/research/ongoing/overcoming-indigenous-disadvantage/2016/report-documents/oid-2016-chapter9-economic-participation.pdf.
7 Australian Human Rights Commission, Submission No 76 to Senate Standing Committees on Community Affairs, Inquiry into the Welfare Reform and Reinstatement of Racial Discrimination Act Bill 2009 and other Bills (10 February 2010), 26.
8 Social Services Legislation Amendment (Cashless Debit Card) Bill 2017, Statement of compatibility with human rights, 7-8.
9 Orima Research, ‘Cashless debit card trial evaluation: final evaluation report’, (Department of Social Services, 2017) 3.
10 Social Services Legislation Amendment (Cashless Debit Card) Bill 2017, Statement of compatibility with human rights, 8.
16 Orima Research, ‘Cashless debit card trial evaluation: final evaluation report’, (Department of Social Services, 2017) 118.
17 Department of Social Services, Guide to Social Security Law [11.1.1.30] http://guides.dss.gov.au/guide-social-security-law/11/1/1/30.
18 Social Services Legislation Amendment (Cashless Debit Card) Bill 2017, Statement of compatibility with human rights, 3.
19 According to the Orima report, only 19% of those surveyed indicated that they used the drug and alcohol support services provided. Orima Research, ‘Cashless debit card trial evaluation: final evaluation report’, (Department of Social Services, 2017) 8.
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