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(Continuation of Cashless Welfare) Bill 2020 Senate Community Affairs Legislation Committee

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(Continuation of Cashless Welfare) Bill 2020 Senate Community Affairs Legislation Committee Social Security (Administration) Amendment (Continuation of Cashless Welfare) Bill 2020 Senate Community Affairs Legislation Committee 2 November 2020 Telephone +61 2 6246 3788 • Fax +61 2 6248 0639 Email [email protected] GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Law Council of Australia Limited ABN 85 005 260 622 www.lawcouncil.asn.au Table of Contents About the Law Council of Australia ............................................................................... 3 Acknowledgement .......................................................................................................... 4 Executive Summary ........................................................................................................ 5 Introduction ..................................................................................................................... 6 Background ................................................................................................................... 6 CDC trials .................................................................................................................. 6 Income Management regime – Northern Territory and Cape York .............................. 8 2019 Bill ..................................................................................................................... 9 2020 Bill ........................................................................................................................ 9 Issues .............................................................................................................................12 Truncated timeframes ...................................................................................................12 Lack of evidence base ..................................................................................................12 Value for money ...........................................................................................................15 Impacts of cashless debit card on human rights ...........................................................16 Rights of equality and non-discrimination ..............................................................17 Right to self-determination and free, prior, informed consent .................................20 Right to social security ..........................................................................................22 Prohibition on interference with privacy .................................................................24 Justifications of limitation on rights ............................................................................24 Is the limitation aimed at achieving a legitimate objective? ....................................25 Is there a rational connection between the limitation and the objective? ................26 Is the limitation proportionate to that objective? .....................................................28 Interaction with Racial Discrimination Act .....................................................................30 Section 10.................................................................................................................30 Special measures .....................................................................................................32 Section 9(1A) ............................................................................................................35 Conclusion .....................................................................................................................35 Recommendations .........................................................................................................36 2 About the Law Council of Australia The Law Council of Australia exists to represent the legal profession at the national level, to speak on behalf of its Constituent Bodies on national issues, and to promote the administration of justice, access to justice and general improvement of the law. The Law Council advises governments, courts and federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. The Law Council also represents the Australian legal profession overseas, and maintains close relationships with legal professional bodies throughout the world. The Law Council was established in 1933, and represents 16 Australian State and Territory law societies and bar associations and the Law Firms Australia, which are known collectively as the Council’s Constituent Bodies. The Law Council’s Constituent Bodies are: • Australian Capital Territory Bar Association • Australian Capital Territory Law Society • Bar Association of Queensland Inc • Law Institute of Victoria • Law Society of New South Wales • Law Society of South Australia • Law Society of Tasmania • Law Society Northern Territory • Law Society of Western Australia • New South Wales Bar Association • Northern Territory Bar Association • Queensland Law Society • South Australian Bar Association • Tasmanian Bar • Law Firms Australia • The Victorian Bar Inc • Western Australian Bar Association Through this representation, the Law Council effectively acts on behalf of more than 60,000 lawyers across Australia. The Law Council is governed by a board of 23 Directors – one from each of the constituent bodies and six elected Executive members. The Directors meet quarterly to set objectives, policy and priorities for the Law Council. Between the meetings of Directors, policies and governance responsibility for the Law Council is exercised by the elected Executive members, led by the President who normally serves a 12 month term. The Council’s six Executive members are nominated and elected by the board of Directors. Members of the 2020 Executive as at 1 January 2020 are: • Ms Pauline Wright, President • Dr Jacoba Brasch QC, President-elect • Mr Tass Liveris, Treasurer • Mr Ross Drinnan, Executive Member • Mr Greg McIntyre SC, Executive Member • Ms Caroline Counsel, Executive Member The Secretariat serves the Law Council nationally and is based in Canberra. 3 Acknowledgement The Law Council is grateful for the advice of its National Human Rights Committee, Indigenous Legal Issues Committee and the Queensland Law Society in developing this submission. 4 Executive Summary 1. The Law Council welcomes the opportunity to respond to the Senate Community Affairs Legislation Committee (the Committee) regarding its inquiry into the Social Security (Administration) Amendment (Continuation of Cashless Welfare) Bill 2020 (the Bill). 2. To inform its response, the Law Council draws on its earlier submission to the Committee regarding the Social Services Legislation Amendment (Cashless Debit Card) Bill 2017,1 as well as more recent information, and constituent bodies and expert committee views. 3. The Law Council does not support the Bill in its current form. It is concerned that a number of features of the cashless debit card (CDC), including as amended by the Bill, undermine human dignity, a concept which is at the heart of human rights. It also also limits enjoyment of participants’ human rights, including the: • rights of equality and non-discrimination; • right to self-determination; • right to social security (and to an adequate standard of living); and • prohibition on interference with privacy. 4. It also undermines the principle of free, prior and informed consent. In the Law Council’s view, there is inadequate justification that the CDC is necessary, reasonable and proportionate in its limitation of these rights. Its concerns regarding the CDC extend to compulsory income management in the Northern Territory (NT). While it is unable to be definitive, there is also a possibility that the CDC (including as amended by the Billl) may be inconsistent with the key provisions of the Racial Discrimination Act 1975 (Cth) (RDA). 5. The Law Council underlines that the Bill is being progressed in the absence of a full and independent evaluation of its merits, or adequate community consultation as to the CDC as amended by the Bill – including its reframed objects, permanent nature, more limited safeguards and expanded application to largely Indigenous communities. It is also concerned that there has been little regard to, or cost-benefit of, alternative options, including expanding support services which meet individuals’ complex needs. 6. Should some form of income management be pursued, the Law Council considers that a less restrictive and proportionate approach to the Bill – and to the existing CDC trial and compulsory income management schemes contained in the Act – would be to ensure that: • participation in the CDC and/or income management is based on full, free and informed individual consent (opt-in), and meaningful community consultation; • individuals are properly assessed in relation to their suitability to participate rather than more blanket approaches being applied; • a full suite of support programs should underpin this implementation, noting that these are lacking in many relevant rural, regional and remote communities; and 1 Law Council of Australia, Social Services Legislation Amendment (Cashless Debit Card) Bill 2017, Senate Community Affairs Legislation Committee, 4 October 2017. 5 • it should be accompanied by expanded access to culturally competent legal assistance services for social security law matters in relevant communities. 7. To facilitate this, the Australian Government should work in genuine partnership with First Nations peoples and communities to reform
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