Chapter 2Views on the legislative instruments
2.1This chapter examines the issues raised by inquiry participants during the committee’s review of the six legislative instruments discussed in Chapter 1. Key issues common to the legislative instruments identified by submitters, include:
the nature and extent of consultation for the legislative instruments under review – and for future income management measures;
the adequacy of the explanatory material tabled with the legislative instruments under review;
the compatibility of the legislative instruments with human rights; and
the retention of compulsory income management and its extension.
2.2Inquiry participants also raised concerns about the lack of a sunset clause in the State Referrals Determination and Volunteers Determination and the adequacy of the language of indicators of vulnerability in the Commonwealth Referrals Determination.
2.3The chapter concludes with the committee view and recommendations.
Issues common to multiple legislative instruments
Nature and extent of consultation
2.4Inquiry participants queried the nature and extent of consultation undertaken in relation to the legislative instruments under review. Forexample, Economic Justice Australia (EJA) submitted that:
… there appears to be no information available to Parliament as to whether the Determinations have been subject to adequate or appropriate consultation in each state and territory.
Although the Explanatory Statement states that “extensive consultation has been undertaken with affected communities in relation to abolishing the cashless debit card program and reforming income management…”, there is no reference to consultation in relation to the impacts, necessity or substance of each particular Determination, nor is there information regarding the nature of the ongoing consultations regarding EIM [eIM] more generally.
2.5Similarly, the Australian Council of Social Service (ACOSS) observed that ‘while the government has stated it has consulted with communities subjected to income management, the outcomes of those consultations are unclear’.
2.6Witnesses at the committee’s public hearing representing ACOSS, EJA, the Accountable Income Management Network (AIMN), the Queensland Indigenous Family Violence Legal Service (QIFVLS) and the Royal Australian and New Zealand College of Psychiatrists (RANZCP) reported that there had been no formal consultation by government with them about the legislative instruments under review.
2.7The three academic experts on income management programs who appeared at the hearing also told the committee they had not been consulted. Ms Linda Forbes of EJA, noting the EJA’s membership of the Services Australia civil society advisory group, also informed the committee there had been no presentations to that advisory group about the legislative instruments under review.
Need for consultation
2.8Inquiry participants stressed the importance of undertaking consultations on income management. At the hearing, Mrs Jessica Stevens of Uniting Communities, explained the importance of involving people subjected to compulsory income management in the consultation process:
…with regard to the consultation, we truly believe that it's important that the voices of the people that are forced onto the card are the ones that are heard through this process, so it's not just the organisations speaking on the behalf of the recipients forced onto compulsory income management. That's so that people that have been on it for such a long time who were forcibly put on it are able to speak about the impact that it has on them personally.
Consultation with First Nations people
2.9Several inquiry participants were especially critical of the Government’s consultation with First Nations people. Forexample, Professor Elise Klein OAM submitted that:
The promised community consultation of this new scheme has been very poor at best – and consistently overlooks Aboriginal controlled organisations and their expertise when it comes to [compulsory income management] in the Northern Territory. Instead of centring to the voices of First Nations people, the program constantly sidelines their critical points.
2.10Several inquiry participants observed that consultation with First Nations peoples about income management should accord with Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples, involving consultation with indigenous people to obtain their ‘free, prior and informed’ consent before the adoption of measures affecting them.
2.11At the hearing, Ms Thelma Schwartz of QIFVLS spoke about the lack of consultation on the legislative instruments under review and how it does not align with the National Agreement on Closing the Gap priorities:
Why this becomes pivotal from an Aboriginal and Torres Strait Islander standpoint is: if I lean into the National Agreement on Closing the Gap, what is the point of having priority reform 1—working in partnership with our communities and consulting with us—and leaning into priority reform 2—emboldening and building the capacity of Aboriginal community controlled organisations—and what is the point of these agreements that have been signed off by the Commonwealth and each state and territory and the Local Government Association, when this legislation comes out with a purview of purported consultation? With respect, this flies against the underlying philosophy of the National Agreement on Closing the Gap and all of that hard work that went into building trust and partnership with our governments.
2.12Professor Gray and Dr Bray PSM jointly recommended the ‘shared decision‑making’ approach set out in the National Agreement on Closing the Gap as an appropriate model for consultation on income management, describing this as ‘true shared decision making, and not top down consultation’.
2.13The Minderoo Foundation recommended ‘genuine and ongoing consultations’ that ‘explicitly consider the needs of children and young people’ to guide the government’s approach in former CDC communities.
2.14On the current round of community consultations in the Northern Territory, the Central Land Council submitted that:
We note that the timeframes for the consultations are relatively short (December 2023-early April 2023 [2024]). We have requested that the department publish the outcomes of the consultations, including details of the number of individuals consulted in each community.
Department’s response
2.15Mr Patrick Burford, Group Manager, Communities, Department of Social Services (DSS) explained that DSS commenced at the end of 2022 aconsultation process on income management which fed into the legislative instruments under review and is still ongoing.
2.16The committee was advised the consultation has involved a phased approach. Ms Justine Fievez, Branch Manager, Income Management Engagement and Support Services, DSS, said the initial phase had involved over 58 consultation sessions with 48stakeholders including government agencies, peak bodies and 10community organisations. Mr Burford noted that DSS had met with the Northern Territory’s four land councils, and had also met twice with Aboriginal Peak Organisations Northern Territory.
2.17As for the second phase of consultations, Ms Fievez explained that DSS had engaged a First Nations-owned organisation called ETM Perspectives to undertake consultations with communities. Ms Letitia Hope, Deputy Secretary, Families and Communities, DSS, told the committee that ‘phase 2’ had seen 75 consultation sessions since 15 December 2023, covering around 12 communities and six town camps. MrBurford said DSS had so far ‘spoken to over 200 individual participants about their lived experience on income management’.
2.18When asked if there was any documentation of the consultation to date that could be available to assist the committee, Mr Burford informed the committee that:
We're keeping internal notes at this stage on the actual consultations and on who we've met with, the quantum, the sort of scope of people we're meeting with and some of the findings to date, but that's in its draft form at this stage.
2.19He added that ‘the publication of the findings would probably be a matter for government’ but that ‘part of the intent is that we would also go out with a public consultation paper on the Engage website for DSS’.
2.20Professor Matthew Gray and Dr J. Rob Bray PSM proposed that the Minister table information on consultation outcomes, evaluation findings and proposed future income management measures; recommending that the committee ask:
… that the Minister table by June 2024 proposals for any future measures, along with a detailed evaluation of the actual impact of the current policies, and outcomes of consultations, including identified statements from key stakeholders on their perspectives.
Tabled explanatory material
2.21Inquiry participants expressed serious concerns about the lack of information and relevance of materials included in the Explanatory Statements provided with the legislative instruments.
2.22For example, Ms Schneider of EJA pointed out that:
…there's limited information that has been provided as part of the explanatory statements that have been able to assist in interpreting exactly how the determinations are intended to work and how they work in practice.
2.23In their joint submission, Professor Matthew Gray and Dr J. Rob Bray PSM commented on ‘the inadequacy of explanatory memorandums/statements which have been provided to the Parliament to enable judgements to be made’ citing the absence of information on the performance of the programs the Determinations relate to, the failure to address the human rights concerns and the relevance of some of the material provided.
2.24On the lack of relevance, Professor Gray and Dr Bray cited the Impact Analysis mentioned in each Explanatory Statement, which is mostly concerned with the Cashless Debit Card rather than the IM and eIM the Determinations relate to.
2.25At the hearing, Professor Gray summarised their concerns to the committee:
The third point is the failure to fully inform the parliament of the operation and effectiveness of the policies in the explanatory memorandums and related materials. Here we cite a range of matters, including deliberate distortions of the findings of research; failure to address the concerns that have now been identified on multiple occasions by the Parliamentary Joint Committee on Human Rights; and indeed, as we documented in our submission, not even providing the most basic information, such as the time trends of program utilisation, when seeking to extend the program.
2.26Professor Gray and Dr Bray recommended the committee ‘express its concerns about the quality of material provided’ and ‘calls upon the Minister to ensure that any further material provided fully informs the Parliament about the actual operations of policies and programs, drawing upon a robust evidence base including an accurate reporting of the evaluation evidence, as well as explicitly addressing concerns about Human Rights compliance’.
Compatibility with human rights
2.27Some inquiry participants raised concerns regarding the compatibility of compulsory income management with multiple human rights in the context of the Determinations.
2.28For example, at the hearing in Canberra, Dr Bielefeld reiterated the concerns she had expressed in the past about compulsory income management:
I've put on the parliamentary record for many years now concerns about a range of human rights. The right to be protected from racial discrimination in the context of income management is a big one, and in this particular area we have had, for a longstanding period of time, indirect racial discrimination being perpetrated by people.
2.29Further, Ms Deb Tsorbaris of the Centre for Excellence in Child and Family Welfare emphasized:
The centre is concerned that compulsory income management programs—no matter how well-intentioned—breach the fundamental human right to be treated with human dignity. Mandating and limiting the ways in which individuals manage and control their income is inconsistent with the moral entitlement to be treated fairly and equitably, which underlines the international recognition of human rights. The current determinations do not uphold this right. Instead, they entrench compulsory income management.
2.30ACOSS and other submitters cited the concluding comments of the Parliamentary Joint Committee on Human Rights (PJCHR) on the Determinations discussed in this report:
The committee considers that, in the absence of adequate safeguards and sufficient flexibility to consider individual circumstances, and in light of the potentially significant interference with human rights that may result from compulsory participation in income management, the legislative instruments risk impermissibly limiting the rights to social security, privacy, equality and non discrimination and the rights of the child as well as potentially the right to an adequate standard of living if participants experience difficulties in meeting basic needs.
2.31Professor Gray and Dr Bray as well as Associate Professor Klein OAM drew the attention of the committee to the failure of the government to acknowledge and address the PJCHR concerns.
Compulsory income management
2.32As discussed in previous reports concerning income management, inquiry participants were highly critical of compulsory income management being retained in both the eIM and IM regimes. For example, Dr Cassandra Goldie stated at the public hearing:
ACOSS has a long history of ongoing concern about compulsory or mandatory income management in the various forms in which it's been implemented in Australia, and we want to repeat our strong opposition today.
Extension and expansion of compulsory income management
2.33Several submitters expressed the view that the legislative instruments further embed compulsory income management as a component of the social security framework.
2.34For example, AIMN told the committee that the Determinations ‘effectively entrench compulsory income management’.
2.35Associate Professor Klein told the committee that:
The main issue….is that the determinations that are the subject of this inquiry, with the exception of the volunteer determination, support the further continuation of compulsory income management in the Australian social security landscape, at least until July 2026, heavily impact people in the Northern Territory and provide no evidence as to how continuing compulsory income management through enhanced income management is justified
2.36Dr Goldie expressed grave concerns that the Determinations ‘facilitate the continuation of mandatory income management but they also permit the expansion of it without an act of parliament’ adding that:
It permits the expansion of compulsory income management without parliamentary approval, limiting the scrutiny of a policy which, in our view, is highly discriminatory and lacks evidence that it achieves its objectives.
Calls for an end to compulsory income management
2.37As in previous inquiries related to income management, a number of inquiry participants called for an end to compulsory income management. For example, the Central Land Council submitted:
The desire to see an end to this discriminatory policy and legacy of the NT Intervention was expressed unequivocally at our full Council meeting in April 2023:
“How many times do we have to say it until the government listens to our voices? Since Income Management was introduced in 2007 as part of the Commonwealth Government’s Intervention in the NT, we have said no. A different card, a different colour – it is all for the same purpose: to control our lives. We are not guinea pigs. The CLC calls on the government to end all forms of compulsory income management now.”
Issues concerning specific legislative instruments
Absence of sunset clause
2.38Inquiry participants expressed concerns about the absence of a sunset clause for the State Referrals Determination and the Volunteers Determination.
2.39For example, Ms Forbes of EJA told the committee that the lack of a sunset clause in the State Referrals Determination is ‘contrary to the purported policy intention to phase out involuntary income management and, instead, speaks to the opposite’.
2.40Further, Ms Tsorbaris of the Centre for Excellence in Child and Family Welfare commented:
The absence of a sunset clause suggests a move towards a more permanent, and maybe less accountable, form of income management despite the well-documented absence of a creditable evidence base.
2.41Submitters called for a clear sunset clause to be established and EJA suggested 1 July 2026 be inserted into the State Referrals Determination and the Volunteers Determination.
Indicators of vulnerability
2.42Several inquiry participants expressed concerns about the language on ‘indicators of vulnerability’ in the Commonwealth Referrals Determination’s ‘decision-making principles’, which will guide DSS decision‑making as to whether for eIMpurposes a person is a ‘vulnerable welfare payment recipient’ or a person is an ‘exempt welfare payment recipient’. Such decisions can affect whether a person may be subject to compulsory income management.
2.43For example, EJA submitted that the vulnerability indicators reflect language formerly used for the IM regime, but without adequate recent review:
Our understanding of vulnerability has developed significantly since 2016, and the context has also changed – for example, the rising rates of homelessness caused by the housing and cost of living crisis. Despite these changes, the vulnerability indicators in the Commonwealth Referrals Determination are in generally the same terms as the 2013 Principles but the Explanatory Statement does not indicate that consultation was conducted specifically in relation to the Commonwealth Referrals Determination or the vulnerability indicators themselves. This suggests there has been no review of the decision-making principles … since 2013-2016, nor any consultation to inform drafting of the Determination.
2.44EJA described this as of particular concern given ‘the limited, and complex exemption and exit processes applicable to those experiencing a vulnerability indicator and subject to eIM’; and the risk that ‘information available to the Secretary may not adequately provide a full picture of a person’s circumstances’.
2.45The AIMN recommended that the ‘indicators of vulnerability’ be either removed or ‘revised to ensure that the language used is appropriate and aligns with the above recommendation [Recommendation 10.1 of the Robodebt Royal Commission]’.
Committee view
2.46The committee notes that the concerns raised by inquiry participants echoed the evidence received by the Senate Community Affairs Legislation Committee in past inquiries on income management, including the 2023 inquiry into the Social Security (Administration) Amendment (Income Management Reform) Bill 2023 [Provisions].While taking into consideration the limited amount of consultation on the matter, the committee notes that many stakeholders continue to support a transition away from compulsory income management.
Consultation
2.47It appears that no specific consultation was undertaken in relation to any of the six legislative instruments under review. More broadly, very little information is available about the consultation process on income management undertaken by the Department of Social Services (the department) since the end of 2022. While the department has stated it has consulted with communities subjected to income management, the outcomes of those consultations are unclear. The committee is of the view that the findings to date of the consultation undertaken since late 2022 should be publicly released. The committee agrees with submitters that genuine consultation is paramount and must be a two-way process involving people on income management, First Nations advocates, communities, and organisations.
Explanatory material
2.48The committee is of the view that the material provided to the Parliament in association with the six legislative instruments is inadequate and lacks critical and relevant information. In particular, the committee notes with concern that for each of the six legislative instruments the impact analysis segment of the explanatory statement consisted of an outdated document that was prepared for another purpose and did not refer to the legislative instrument in question.
2.49The committee expects adequate explanatory material, in line with drafting requirements, to be tabled together with each legislative instrument. This is essential to facilitate appropriate Parliamentary scrutiny.
2.50The committee recommends that for any future legislative instruments made under Part 3B or Part 3AA of the Social Security (Administration) Act 1999 (the Act) the Australian Government give consideration to:
undertake genuine consultation;
provide adequate and relevant explanatory material to Parliament to enable appropriate scrutiny; and
provide a detailed report on the consultation process and outcomes regarding the proposed Determinations.
Senator Janet Rice
Chair