Submission of the
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (HREOC)
to the
AUSTRALIAN GOVERNMENT DEPARTMENT OF HUMAN SERVICES
on the
EXPOSURE DRAFT OF THE HUMAN SERVICES (ENHANCED SERVICE DELIVERY) BILL 2007
21 August 2007
Human Rights and Equal Opportunity Commission
evel 8, 133 Castlereagh St
GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600
TABLE OF CONTENTS
B. THE REGISTRATION PROCESS MUST BE ACCESSIBLE FOR INDIGENOUS AUSTRALIANS
C. THE EXEMPTION PROCESS SHOULD TAKE INTO ACCOUNT THE DISADVANTAGES FACING INDIGENOUS AUSTRALIANS
E. YOUNG PEOPLE SHOULD BE AUTOMATICALLY ELIGIBLE FOR AN ACCESS CARD AT AGE 15
F. REVIEW THE IMPACT OF THE ACCESS CARD ON INDIGENOUS AUSTRALIANS
A. SUMMARY OF SUBMISSION
- The Human Rights and Equal Opportunity Commission (HREOC) makes this submission to the Australian Government Department of Human Services Office of Access Card (the Office of Access Card) in response to the exposure drafts of the Human Services (Enhanced Service Delivery) Bill 2007 (the 2nd Exposure Draft) and the Human Services (Enhanced Services Delivery) (Consequential Provisions) Bill 2007.
- HREOC believes that the Office of the Access Card needs to carefully consider the impact of the access card on Indigenous Australians.1 This is because:
- As a result of their disadvantaged socio-economic status, most Indigenous Australians will be required to register for the access card in order to gain or maintain access to social welfare payments, Medicare services, and the Pharmaceutical Benefits Scheme;
- A potentially significant number of Indigenous people will have difficulty meeting one or more of the requirements of the registration process for the access card, as a result of cultural reasons or their disadvantaged socio-economic status. Special consideration should be given to their circumstances in making special arrangements for registration or granting appropriate exemptions.
- HREOC is also concerned that a young person aged under 18 can not be issued with an access card unless that person receives an exemption from a minister to obtain his or her own access card. HREOC believes this may jeopardise children’s access to social services and health care and interfere with their right to privacy. HREOC recommends that the 2nd Exposure Draft be amended to make everyone aged 15 and above eligible for an access card but allow children aged 15-18 to remain on their parents’ card if they wish.
- HREOC notes that some of its recommendations are matters for the Office of Access Card to take into account in implementing the legislation rather than recommendations that result in substantive changes to the bills. HREOC recommends:
RECOMMENDATION ONE: When the Minister is developing Administration Rules relating to the means by which alternative processes may be used to determine the identity of an Indigenous person, the Minister should consult with Indigenous peoples and their representative organisations to ensure the provisions are fair, reasonable and culturally appropriate.
RECOMMENDATION TWO: When determining exemptions under clauses 15, 16, 191 or 192 relating to Indigenous people, the Administration Rules should require the Minister to give special consideration to Indigenous cultural protocols, languages and literacy ability, location and the disadvantaged status of Indigenous peoples.
RECOMMENDATION THREE: The government should undertake an information campaign for Indigenous Australians well in advance of the introduction of the access card.
RECOMMENDATION FOUR: The 2nd Exposure Draft should be amended to make persons aged 15 and above are automatically eligible for an access card. It should still allow children aged 15-18 to remain on their parents’ card if they wish.
RECOMMENDTAION FIVE: Clause 198 should be amended to require the annual report on the operation of the Access Card prepared by the Secretary of the Department of Human Services to include specific details about the impact of the operation of the access card on Indigenous Australians.
B. THE REGISTRATION PROCESS MUST BE ACCESSIBLE FOR INDIGENOUS AUSTRALIANS
- HREOC notes that the Explanatory Memorandum to the Bill intends that the registration process for the access card is ‘thorough, robust and secure.’2 The Explanatory Memorandum states that ‘the documents that will be required will be specified in the form approved by the Minister (after consultation with the Privacy Commissioner) but will be documents that establish the individual’s identity and the use of that identity in the community. These will include documents such as birth certificates, passports, immigration documents, drivers’ licences and similar documents’.3
- The documents a person will be required to provide are likely to be the documents required to prove a person’s legal name. Upon registration, the person’s legal name must be entered in the Access Card Register unless the person is covered by a legal name exemption provided for by clauses 191 or 192. The definition of a person’s legal name in cl 4 includes:
- the name on the individual’s Australian birth certificate; or
- the name on the individual’s Australian passport; or
- the name on a certificate of citizenship granted under the Australian Citizenship Act 1948; or
- the name on a certificate or record of the individual’s marriage kept by the relevant Australian Registrar of births, deaths and marriages; or
- a name effected by way of a change of name of an individual kept by the relevant Australian Registrar of births, deaths and marriages; or
- the name on the individual’s foreign passport
- if none of the above apply, a name on a document prescribed by the regulations.
- For some Indigenous Australians, particularly those who are elderly, living in more remote areas or who are homeless, it may not be possible to provide any of these forms of proof of identity. 4
- The Explanatory Memorandum recognises that there will be some cases where individuals will not be able to provide the types of documents required to process their application. The Exposure Draft addresses this situation by providing:
- That the Secretary can specify an alternative process to deal with such special or exceptional circumstances (cl 19(1)(b));
- That the Minister can make regulations to list an alternative document that may be used to establish a legal name (cl 4 (g) of the definition of ‘legal name’).
- Relevantly, the 2nd Exposure Draft gives the Minister power to make Administration Rules for the purposes of the Bill (cl 182) and requires the Minister to make Administration (Identification) Rules about how persons performing functions or duties under the Bill are to exercise various discretions relating to the identity of individuals (cl 184). These discretions relate to decisions about establishing proof of identity, including: what proof of identity forms should be required in registration forms; whether to request additional information relating to an individual’s identity; and whether the Secretary is satisfied of an individual’s identity.5
- HREOC is therefore concerned that any Administration Rules take into account the fact that parts of the Indigenous population may face difficulty meeting one or more of the requirements of the registration process for the access card, as a result of cultural reasons or their disadvantaged socio-economic status.
- RECOMMENDATION ONE: When the Minister is developing the Administration Rules relating to the means by which alternative processes may be used to determine the identity of an Indigenous person, the Minister should consult with Indigenous peoples and their representative organisations to ensure the provisions are fair, reasonable and culturally appropriate.
C. THE EXEMPTION PROCESS SHOULD TAKE INTO ACCOUNT THE DISADVANTAGES FACING INDIGENOUS AUSTRALIANS
- HREOC anticipates that many Indigenous peoples will find themselves in a situation where they require an exemption from some of the requirements to enable them to obtain an access card. For example, an Indigenous person may not be able to:
- attend a face-to-face interview for registration because of their remote location, lack of transport, ill-heath or disability;
- provide a ‘legal name’ because of a lack of documents;
- sign their name; or
- be prepared to have their photo taken.
- HREOC notes that persons who are homeless may also face difficulties in attending registration interviews or providing proof of identity documents.
- HREOC recognises that the Exposure Draft provides that:
- the Minister can, by way of legislative instrument, grant registration exemptions and access card exemptions for classes of individuals (cl 15);
- the Secretary can, in the cases of specific individuals, grant registration exemptions and access card exemptions, if ‘hardship would be caused to the individual if the exemption was not granted’ (cl 16);
- the Minister, can by legislative instrument, grant an individual or individuals included in a specified class an exemption from the requirements of registration, including a legal name exemption (cl 191-192).
- HREOC believes that the particular cultural, economic and social circumstances of Indigenous peoples in Australia should be taken into account in determining any exemptions.
- RECOMMEDATION TWO: When determining exemptions under clauses 15, 16, 191 or 192 that may relate to Indigenous people, the Minister should be required by the Administration Rules to give special consideration to Indigenous cultural protocols, languages and literacy ability, location and the disadvantaged status of Indigenous peoples.
D. THE NEED FOR AN EARLY INFORMATION CAMPAIGN FOR INDIGENOUS AUSTRALIANS
- It will be necessary to develop an information campaign for Indigenous Australians to ensure they clearly understand the changes and what action they will need to take to ensure they can continue to access their entitlements without disruption. It is also important to ensure that Indigenous Australians can provide informed consent about the use of their personal data.6
- An information campaign should explain:
- how to register for the card;
- how the access card system will work compared to the current system
- what data persons registering for an access card are required to provide;
- what personal data about access card holders is going to be included, stored and shared within the access card system;
- who will be able to access this data, for what purposes and the rights of access card holders to know who has access to the data;
- access card holders rights to ensure data is updated and corrected when necessary;
- where persons who may need to register for access cards or who have already registered can seek further information and assistance; and
- how people can seek administrative review of decisions under the access card system that affect them.
- This information campaign should take a variety of forms, including plain English guides, oral briefings and DVD. The campaign should be delivered in formats that use Indigenous languages wherever possible and are sensitive to the issues of literacy, location and the disadvantaged status of Indigenous peoples.
- RECOMMENDATION THREE: The government should undertake an information campaign for Indigenous Australians well in advance of the introduction of the access card.
- Recommendation Three should also be considered in relation to ethnic and low socio-economic status Australians, Australians with a disability, homeless people and young people.
E. YOUNG PEOPLE SHOULD BE AUTOMATICALLY ELIGIBLE FOR AN ACCESS CARD AT AGE 15
- Clause 40 of the 2nd Exposure Draft provides that only persons over 18 years of age are eligible for an access card. Generally, persons under 18 years of age will be listed on the access cards of their parents or guardians. People under 18 will need to obtain an exemption from the Minister to have their own access card.
- HREOC is concerned that requiring people under 18 years of age to obtain an exemption from the Minister in order to have their own access card may jeopardise young people’s right to access to social services and health care and interfere with their right to privacy.
- HREOC recognises that the Explanatory Memorandum states that ‘it is intended that, after the Bill commences, people under 18 will have the same access to health benefits as they have currently’.7 The Explanatory Memorandum also envisages that cl 191 and cl 192 will be utilised to grant access card exemptions to young people and classes of young people (for example, individuals under 18 who can currently receive Medicare card). 8 The Minister has also issued the following Criteria for people under 18 years of age applying for their own Access card. The Criteria provide:
- A person 15 years and over will be issued with his or her own access card if they apply.
- A person under 15 years may be issued with his or her own access card, if eligible for Medicare, with the consent of a parent or guardian.
- A person under 15 years may be issued with his or her own access card, if eligible for Medicare, without the consent of a parent or guardian where:
- The person is homeless;
- The person is in foster care or a ward of the state;
- Other personal circumstances of the person warrants the issue of his or her own card; or
- The person is in receipt of, or entitled to receive, Commonwealth payments or pensions in their own right.9
- While the Minister has stated the above Criteria will not change10, without legislative incorporation there is the possibility that future governments may change the criteria without adequate legislative scrutiny.
- HREOC recognises that some young people who are living independently or accessing medical services may require an exemption from the access card because their parents retain proof of identity documents necessary for registration. However, HREOC is of the view that young people aged 15 and over should automatically be eligible for their own access card. If an exemption from registration requirements is necessary, special consideration should be given to their particular circumstances.
- In a 1997 report, Seen and Heard: Priority for Children in Legal Process, by HREOC and the Australian Law Reform Commission (ALRC) found that young people generally find it difficult to deal with government departments, and that difficulties in negotiating legal processes for social services can have ‘serious consequences for young people from low socio-economic backgrounds or for those who have inadequate family support’.11
- HREOC believes that making young people aged 15 and over automatically eligible to register for an access card is a simpler, better option that recognises that many young people require independent access to health benefits and social services. In HREOC’s view, young people between 15 and 18 who have their own proof of identity documents should not have to rely on a ministerial discretion to obtain access to Commonwealth government benefits. This is consistent with current policy: the Health Insurance Commission can issue young people with a Medicare card from the age of 15 years without their parent’s consent and young people who are 16 years or older and living away from home can receive direct Youth Allowance payment.
- RECOMMENDATION FOUR: The 2nd Exposure Draft should be amended to make persons aged 15 and above are automatically eligible for an access card. It should still allow children aged 15-18 to remain on their parents’ card if they wish.
F. REVIEW THE IMPACT OF THE ACCESS CARD ON INDIGENOUS AUSTRALIANS
- HREOC recognises that the 2nd Exposure Draft contains important review mechanisms to monitor the operation of the Access Card, namely: an annual report Parliament by the Commonwealth Ombudsman (cl 176); an annual report prepared by the Secretary and tabled in Parliament by the Minister (cl 198) and an annual report by the Privacy Commissioner (cl 199).
- However, HREOC is concerned that the reporting requirements for these review mechanisms do not require any assessment of the impact of the access card Indigenous Australians.
- RECOMMENDATION FIVE: Clause 198 should be amended to require the Secretary’s annual report on the operation of the Access Card to include specific details about the impact of the operation of the access card on Indigenous Australians.
- Recommendation Five should also be considered in relation to the impact of the access card on ethnic and low socio-economic status Australians, Australians with a disability, homeless people and young people.
Footnotes
[1] It is noted HREOC has previously expressed concerns about the impact of the access card on Indigenous Australians to the Senate Finance and Public Administration Committee on the Inquiry into the Human Services (Enhanced Delivery) Bill 2007 in March 2007. The Committee report on the original bill was released on 15 March 2007. The Committee’s report stated that the Committee had not considered the implications of the Bill on Indigenous Australians, the blind or vision-impaired, or women.
[2]Exposure Draft, Human Services (Enhanced Service Delivery) Bill 2007 Explanatory Memorandum, p 28.
[3] Exposure Draft, Human Services (Enhanced Service Delivery) Bill 2007 Explanatory Memorandum, p 28.
[4]HREOC notes the finding of the Access Card Consumer and Privacy Taskforce that a disproportionate number of Indigenous people (100, 000 plus) may have been registered with the office of Births, Deaths and Marriages but do not hold any birth certificate. See further Access Card Consumer Privacy Taskforce, Discussion Paper no.3: Registration, 23 March 2007, p 39.
[5] Exposure Draft, Human Services (Enhanced Service Delivery) Bill 2007 Explanatory Memorandum, p 128.
[6]Access Card Consumer Privacy Taskforce, Discussion Paper no.3: Registration, 23 March 2007, p 12.
[7] Exposure Draft, Human Services (Enhanced Service Delivery) Bill 2007 Explanatory Memorandum, p 43.
[8] Exposure Draft, Human Services (Enhanced Service Delivery) Bill 2007 Explanatory Memorandum, p 43.
[9] Department of Human Services, ‘Media Release: Business as for teens access to SmartCard’, 27 February 2007, available online http://www.accesscard.gov.au/media/070227_business_as_usual_for_teens_to_access_smartcard.html
[10] Department of Human Services, ‘Media Release: Business as for teens access to SmartCard’, 27 February 2007, available online http://www.accesscard.gov.au/media/070227_business_as_usual_for_teens_to_access_smartcard.html
[11] Australian Law Reform Commission (ALRC), Seen and Heard: Priority for Children in Legal Process, ‘Chapter 9 – Administrative Decision making service delivery for children’, Report no. 84,(1997), [9.15-9.16].
