Human Rights and the Cashless Debit Card: Examining the Limitation Requirement of Proportionality

The Cashless Debit Card Symposium was held at both the University of Melbourne and the Alfred Deakin Institute on Thursday, the 1st of February 2018. The Power to Persuade is running a series of blogs drawn from the presentations made on the day. In this piece, Shelley Bielefeld from Australia National University analyses the Cashless Debit Card initiative to ascertain whether the concept of proportionality can justify the curtailing of certain human rights for communities subjected to the CDC.

Like other forms of income management that preceded it, the Cashless Debit Card (CDC) has a disproportionate impact on Indigenous peoples, and this raises concerns about racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (‘the ICERD’), which Australia has ratified.

Although human rights violations can be difficult to redress in Australia due to limited domestic implementation of international human rights, they represent one of several possible strategies for placing pressure on the government. This can occur at an international level, through bodies such as the Committee on the Elimination of Racial Discrimination, and also at a national level with NGOs and others taking up these arguments in their dialogue with Government in the quest for accountability over these unjust measures.

The language of human rights therefore has a role to play and the concept of proportionality is another avenue to ensure that due attention is paid to the need for a solid evidence base rather than conducting endless poorly designed social policy experiments on Indigenous communities.

Proving that limits on human rights satisfy the requirement of proportionality is not an easy undertaking. Essentially, where evidence indicates that trial programs have not been ‘definitively positive’ the threshold for proportionality is unlikely to be met. In terms of the CDC trials, Orima’s 2017 evaluation reports a range of adverse effects for numerous people forced to use the CDC.

There must be a compelling reason to curtail human rights with government policy, as the Cashless Debit Card does for primarily Indigenous people and communities. Photo credit: Pixabay.

There must be a compelling reason to curtail human rights with government policy, as the Cashless Debit Card does for primarily Indigenous people and communities. Photo credit: Pixabay.

The Parliamentary Joint Committee on Human Rights (PJCHR) has regularly pointed to proportionality problems with income management. This federal Committee examines the compatibility of bills, legislation and legislative instruments with human rights. The Committee has concluded that income management via the BasicsCard and the CDC limit rights to social security, privacy, equality and non-discrimination.

Even so, the Federal Government has asserted that the CDC regime is compatible with the international human rights instruments to which Australia is a signatory. The government maintains that any limitations placed upon human rights via the CDC are ‘reasonable, necessary and proportionate to achieving the objectives of the welfare quarantining measures.’ These claims warrant further scrutiny, paying particular attention to the requirement of proportionality.

Limitations can be placed on human rights in some circumstances. Such limits must ‘be in pursuit of a legitimate objective’, ‘be rationally connected’ to that stated objective, and ‘be a proportionate way to achieve that objective’ (PJCHR, 2016 Review of Stronger Futures Measures: v). Legislation that limits human rights requires an ‘evidence-based assessment of the measures against these limitation criteria’ (ibid). A favourable evidence base is therefore an important consideration in justification for placing limitations on human rights. This has not occurred with the passage of the initiating CDC legislation—the Social Security Legislation Amendment (Debit Card Trial) Act 2015 (Cth), nor the Bill proposed to extend the scheme—the Social Services Legislation Amendment (Cashless Debit Card) Bill 2017 (Cth).

The PJCHR found that threshold requirements for permissible limitations on human rights were not satisfied by the government’s assertions in the Human Rights Compatibility Statement accompanying the 2017 Amendment Bill. They pointed to problems with the criteria of rational connection and proportionality, noting the lack of ‘definitively positive’ evidence in relation to the CDC trials (PJCHR, Report Number 9 of 2017, 37).

A large number of cardholders have reported that the CDC has made their lives worse because they have been prevented from paying essential bills, unable to purchase desired personal items, and lacked access to sufficient cash. The evidence base to date suggests that the CDC has led to social and financial exclusion problems for many people coerced to use the card — from difficulties buying products which are meant to be permitted expenditure on the card to difficulties engaging in a range of social settings that require cash.

Assessing the proportionality of limitations on human rights requires consideration as to whether the measures are ‘the least rights restrictive way’ of ensuring any legitimate objectives (PJCHR, Report Number 9 of 2017, 37). The blanket application of the measure regardless of individual circumstances is deeply problematic in terms of sustaining a proportionality rationale.

The PJCHR noted that while evidence on voluntary income management indicates that it may have some perceived benefits, the same cannot be said for compulsory cashless welfare measures. They suggested that voluntary income management or an easily accessible exemption process would be a less rights restrictive measure for achieving the government’s trial objectives. Other genuinely supportive voluntary programs are alternatives worthy of exploration (see further Bielefeld, Submission No 55 to the Senate Standing Committee on Community Affairs, Social Services Legislation Amendment (Cashless Debit Card) Bill 2017).  

The fact that the federal government has persistently refused to countenance alternatives in favour of compulsory measures says something about bipartisan fears and beliefs about the character and capacity of welfare recipients. Yet these perceptions about widespread addiction amongst people in receipt of government income support are ill founded. Australian Bureau of Statistics (ABS) data reveals that government income support recipients spend a smaller proportion of their total funds on alcohol than all other Australian households.

Mandatory income management schemes involve the government implementing the most coercive possible measures for people irrespective of their behaviour and regardless of consequent harm. This does not honour Australia’s international human rights obligations to people in need of government income support. Australia needs to do better, and provide social security that allows people to live with dignity rather than pilloried ‘in kind’ support.

 -------------------------------------------------------------------

To read more from the Cashless Debit Card Symposium, see:

The mounting human costs of the Cashless Welfare Card

Straightjacketing evaluation outcomes to conform with political agendas - an examination of the Cashless Debit Card Trial

My experiences of the Cashless Welfare Card