Tuesday, 20 March 2018
Social Services Legislation Amendment (Welfare Reform) Bill 2017; In Committee
The committee is considering the Social Services Legislation Amendment (Welfare Reform) Bill 2017 and the amendments moved by Senator Siewert on sheet 8288. The question is that amendment (1) on sheet 8288 be agreed to.
When the adjournment was proposed last night, we were just in the middle of a question and answer process, and I had at that stage said this was my last question, but unfortunately the adjournment was proposed before it could be answered, and I was a bit premature, because depending on the answer I actually may wish to ask another question specifically on that.
No, of course.
The TEMPORARY CHAIR: So debate can continue.
I was asking about the appeals process for the one-week penalty, the two-week penalty and the four-week penalty. You will recall that we had had significant discussion around when people could appeal, and I was asking what happens with those penalties in terms of income support.
Thank you, Senator Siewert, for restating the question. Under the new compliance framework, while jobseekers are able to appeal any financial penalty, they will not receive payment pending the outcome of the appeal or payment pending review. However, jobseekers will be paid back pay if their appeal is successful. Under the current compliance framework, in practice, payment pending review is only available for eight-week serious failure penalties and unemployment non-payment periods, which will no longer exist under the new framework. Payment pending review is currently not available for the majority of penalty types.
Before a jobseeker faces any financial penalty under the new framework, they will have missed a minimum of five requirements in six months without reasonable excuse, or will have refused work and therefore be demonstrably capable of obtaining work. The jobseeker's capabilities will also generally have been assessed twice, by both their provider and Human Services, before any penalties are applied. These arrangements are intended to ensure that only those jobseekers who are fully capable of meeting their requirements, but deliberately choose not to, will lose payment. The intention is to provide such jobseekers with a strong incentive to change their behaviour or find work. Allowing payment pending review for such jobseekers would significantly undermine this incentive effect.
The issue here, as I articulated yesterday, is that we still may have vulnerable jobseekers who get to this point if they haven't disclosed. In effect, what we've got is people being able to access the first appeals process, the departmental appeals process and then the AAT. For a start, we know the AAT takes quite a long period of time—certainly more than the four weeks. Well, it's seven weeks, but the maximum one-time suspension is four weeks, and it certainly takes longer than that.
I've got a couple of questions. What is the time it takes for the departmental review? Following that, if somebody has appealed and they do their four weeks—say it's the four-week one—what happens if they're still under appeal? Do they still go back? If they are still appealing—say it's an AAT or departmental one, but it's more likely AAT because they take longer—do they go back to the start of the process? What happens if they are still under appeal? Is that clear? So they've appealed and they've actually done their four weeks off income support—you've just said they would not be receiving income support. Do they then go back to the start, as everybody else does? What happens there?
Senator Siewert, I'm advised they go back to where they were in the intensive compliance phase.
I've also managed to get you some additional information in terms of another question you were asking about last night, which was around what happens if a jobseeker is already in the penalty phase and they develop issues affecting their capacity to comply, or they reveal previously undisclosed issues. If a jobseeker had no issues when they underwent their compliance assessment, but their circumstances change while they're in the penalty phase, they will remain in the penalty phase but will have their requirements adjusted, if necessary, to ensure that they can meet them. They do not return to the demerits phase because they were capable of meeting the requirements when they incurred their demerits and underwent their capability assessment. However, if the jobseeker does fail to meet a requirement, Centrelink will not apply a penalty if the jobseeker's barriers provide a reasonable excuse for failure. Also, providers would continue to monitor jobseeker requirements and take personal circumstances into account following any further noncompliance. If a jobseeker reveals a previously undisclosed barrier whilst in the penalty phase, and it results in the retrospective application of an activity test exemption, any demerit incurred within the exemption period will be removed and they will return to the demerits phase. I hope that gives you a little bit more in terms of what we were discussing last night.
Given that there are a number of amendments, can I take that one on notice and provide you with information when we return after question time? I assume we will be coming back after question time.
Sorry, I realise I asked that question last night. I think I should rephrase it to say 'the last group of questions', because the minister's answers have led to other queries. Can we just go back to the point that you made when I was asking what happens when someone has appealed? You said that if they've done their compliance of four weeks, their suspension for four weeks, they go back to the intensive phase, not to the—
Two circumstances: yes, in relation to the question you have just asked; however, what we were also talking about last night was if you then have a three-month period in which there is no noncompliance then you reset; you start again.
I want to ask questions in relation to schedule 17, with respect to information management. We've expressed our strong opposition to this schedule. We've expressed our concern that the schedule limits the privilege against self-incrimination, which we see as a basic and substantive common law right. We're concerned that your changes to this schedule provide—
No, but we have varied around each particular set of amendments.
The TEMPORARY CHAIR: We should deal with each amendment. Have we completed the debate in relation to it?
Yes, I would be happy to vote on that now.
The CHAIR: The question is that amendment (1) on sheet 8288, moved by Senator Siewert, be agreed to.
I want to ask some questions with respect to information management, schedule 17. We've very firmly put our opposition to this schedule. As we understand it, it seeks that the secretary of the department will be able to get from a person information that can be used as evidence to investigate and prosecute that person for criminal offences. We're concerned that it limits the privilege against self-incrimination, which, in our view, is a basic common law right.
You're putting forward to this place a schedule that means that a person subject to the coercive information-gathering power will not have the right to refuse to provide information or documents on the basis that it may be incriminating or will expose a person to a penalty. What you're doing, as we understand it, is to effectively allow the department to circumvent the need to obtain admissible material by search warrants pursuant to section 3E of the Crimes Act 1914. We're extremely concerned that, in practice, this means that a person can be asked to provide information to prove that they've not complied with their obligations as a welfare recipient, and any information provided can be used as evidence against them. You have to ask yourself where the onus of proof is here. I've certainly seen, in relation to robo-debt, a considerable reversal of that onus within DHS. I'm very concerned that the information can also be used as evidence that a person has not fully complied with the requirements to give information or documents, or has provided false or misleading information or has engaged in forgery.
Importantly, the Social Security Rights Network, whose advice I very much respect, has expressed their significant concerns about this schedule. They're very concerned that it limits the privilege against self-incrimination and can be used to gather information from welfare recipients that can be used against them in criminal proceedings. Minister, does the government believe that this schedule limits the privilege against self-incrimination, which is a basic and substantive common law right?
In relation to the measure itself, what the measure actually does is streamline the process of referrals for welfare fraud prosecution by allowing information or documents obtained in the course of an administrative action by the Department of Human Services to be used in subsequent investigation and criminal prosecution.
You raised a number of issues in the statements that you just made. In relation to the amendments and their impact on the debtor's right to silence, I can advise that this amendment does not change any rights to silence, as the common law right to silence has been retained, other than in proceedings for the provision of false information. Third parties do not currently have a right to silence.
In relation to your questions around self-incrimination, the proposed changes retain the common law right to silence, preventing the use of information or documents against the person providing them. That is retained in the bill. Again, the exception to this is in relation to proceedings for the provision of false information. Therefore, the only way that the information provided by a person could be used against them is if that information were false. If the person provides correct information, it logically flows that that information would not be able to be used against them. This is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which deals with the privilege against self-incrimination. The guide states that the privilege against self-incrimination does not apply where it is alleged that a person has given false or misleading information.
Thank you. I want to ask now whether this schedule means that information can be gathered from welfare recipients that can be used against them in criminal proceedings?
I'll just take you through how the bill actually deals with self-incrimination. For example, a new section 197A will be inserted into the Social Security (Administration) Act to clarify the effect of the privilege against self-incrimination on a person's obligation to respond to a statutory demand. Subsection 197A(1) provides that a person is not excused from giving information or producing a document or record that may incriminate them or expose them to a penalty. In short, that person cannot refuse to provide the information or document on the grounds that it may incriminate them. Well-established law dictates that a person cannot be compelled to convict themselves from their own words, and subsection 197A(2) section applies to this principle. Section 197A(2) provides for what is called use or derivative use immunity for an individual providing information or documents in response to a statutory demand to produce. The subsection sets out that any information given or any document or record produced by an individual may not be admitted in evidence against the individual in criminal proceedings, with only limited exceptions.
The rationale for abrogating the privilege against self-incrimination is that the information requested is often essential to maintain the integrity of the social security system—for example, through fraud prevention and detection—and is rarely, if ever, used against the person providing it. Generally, only information that is relevant to another person's social security payment under the social security law is sought from persons. For example, information may be sought from an employer about cash-in-hand income received by a social security recipient or from a financial institution about a social security recipient's financial assets, incomes and outgoings. Section 197A(2) ensures that only limited criminal consequences flow from the person's inability to refuse to provide information. The use and derivative use immunity in subsection 197A(2) is subject to certain exceptions. Essentially information or documents given by an individual are admissible in criminal proceedings against that individual that relate to the falsity of the information.