By Adam Fletcher

Last year mining magnate Andrew Forrest was commissioned by the Australian Government to conduct a review of Indigenous jobs and training. One of Forrest’s recommendations was a ‘Healthy Welfare Card,’ an idea which might be more familiar to readers in the form of the previous Government’s ‘BasicsCard’ (perhaps a new name was suggested due to bad press these cards received, including from members of the present Government when they were rolled out several years ago). To be fair, the new card is significantly different in that it is a proper debit card issued by banks, unlike the old one which required retailers to opt in to a special system.

The idea is that a certain proportion of people’s welfare payments is paid as value on these cards, which may only be used for food and other ‘essential’ items. The theory is that this will prevent welfare dollars being squandered on harmful (but legal) vices such as alcohol and gambling. Obviously, the fact that this initially only applied to Indigenous welfare recipients and those in certain geographic areas raised the spectre of discrimination, but (as with other aspects of the infamous NT Intervention) a public health argument was put forward to justify the rights imposition.

Now the Forrest Review has suggested a special debit card for all welfare recipients, regardless of race, which is one step towards making such a system more rights-compatible. Forrest also proposed that 100% of welfare be assigned to the Healthy Welfare Card, because the BasicsCard trials paid up to half of all benefits in cash, which was (so Forrest’s report finds) still spent on things like alcohol and illicit drugs. However, the Government has not accepted this recommendation, arguing sensibly that there remains a need for emergency cash, especially in remote locations (and proposing 20% of benefits remain available in real currency).

Parliament’s Joint Committee on Human Rights (JCHR) has conducted a detailed examination of the Social Security Legislation Amendment (Debit Card Trial) Bill 2015 which would enable trials of the new Healthy Welfare Card. Apart from its rather obvious paternalism, you would expect such a Bill to raise human rights concerns, and the JCHR found that it does. The Bill also leaves much (in fact most) of the attendant detail to a future Legislative Instrument, including which businesses will be banned from accepting the cards in payment (though presumably bottle shops will be included in line with Forrest’s recommendation), where the trials will take place and who will be subject to it.

The JCHR finds that the policy measure possibly breaches the right to a private life under article 17 of the International Covenant on Civil and Political Rights (a right which the Statement of Compatibility with Human Rights prepared by the Government skips over), and might also lead to indirect discrimination.

On privacy, the JCHR’s report spells out the potential impact:

Restricting how a person can access, and where they can spend, their social security benefits, interferes with the person’s right to personal autonomy and therefore their right to a private life. In addition, being able to only access 20 per cent of welfare payments in cash could have serious restrictions on what a person is able to do in their private life. There are many instances where a person would only be able to use cash to purchase goods or services, such as at markets, for public transport, to give to family members, services which require cash payments, buying second-hand goods and at stores that have minimum purchase requirements. For those on the single rate of Newstart, restricting the cash availability of the allowance to 20 per cent would mean that just over $50 is available per week to be spent in cash. This restriction undoubtedly impacts on how a person is able to conduct their private life and represents the extension of government regulation into the private and family lives of the persons affected by these trials.

The JCHR points out that the UN Special Rapporteurs on Extreme Poverty and Human Rights and on the Rights of Indigenous Peoples have already written to the Australian Government (in 2012) about the implications of excessive restrictions on access to social security benefits for article 17. The JCHR acknowledges the legitimacy of aims such as reducing deprivation and violence and encouraging socially responsible behaviour, but it questions the evidence on income management (of which this is arguably a form), which has been implemented and studied in various places around Australia, but which has yet to make a convincing case that it can achieve its aims. The JCHR also questions the lack of a legislative commitment (as opposed to a political commitment) to monitor and review the operation of the Healthy Welfare Card scheme, and a provision in the Bill which would let financial institutions share welfare recipients’ personal information with the Government.

In terms of discrimination, the JCHR laments that the Government’s Statement of Compatibility makes no mention of possible impacts of this scheme on women or people with a disability, even if it assures us that ‘the trial locations will be chosen based on objective criteria.’ This is relevant because, as the JCHR notes, women and people with a disability are statistically more likely to be receiving welfare. In addition, despite further assurances that the distribution of the Card will not be race-based, the JCHR points out that Ceduna in SA and the East Kimberley region have been chosen as the first likely implementation sites (after Moree refused to take part). Both of these areas have a high proportion of Indigenous inhabitants. In short, there is a real possibility of indirect discrimination through disproportionate impact on certain groups with this policy.

The JCHR has written to the responsible Minister (Scott Morrison, who has since been replaced by Christian Porter), but given that the current Government has yet to change a Bill due to JCHR concerns, the best response the committee is likely to get is a revised Statement of Compatibility.

The human rights impact of the proposed Healthy Welfare Card hasn’t had much of a run in the media. In fact, since the JCHR’s report was tabled early last month, only the Guardian and News.com.au seem to have picked up on it. The Bill is currently before the Senate, having passed through the House of Representatives with no one except Philip Ruddock, the Chair of the JCHR even mentioning the evident concerns about compatibility with Australia’s international human rights obligations. To his credit, Mr Ruddock did highlight the Bill’s problems in no uncertain terms (on tabling the relevant JCHR report):

I note that some of the statements of compatibility accompanying bills considered in this report have fallen well short of the committee’s expectations. In particular, a number of these provide simple assertions with no supporting evidence. One example is the statement of compatibility for the Social Security Legislation Amendment (Debit Card Trial) Bill 2015, which provided no empirical evidence of how the proposed measures are likely to be effective in achieving their objective. This is necessary due to the fact that income management schemes, while clearly well-intended, necessarily involve limitations on a number of human rights, such as the right to a private life and the right to equality and to non‑discrimination.

It is great to have a parliamentary committee examining Commonwealth legislation for human rights compatibility, but it would be even better if the Government responded meaningfully to the JCHR’s concerns. Without the sort of pressure that comes from widespread media (and therefore public) attention, the Government is unlikely to do that any time soon.