I rise to take note of the answers given by Senator Ruston to questions asked by myself.
Senator McCarthy please resume your seat. Order. Please. Senator McCarthy has got the
right to be heard in silence. Thank you Madam Deputy President and I pick
up on the Minister's response and clearly, clearly this has been the problem with the
Government. It's about pick and choosing, pick and choosing the things that work for
you in the sloppiness of how this Government has brought forward the CDC legislation. You've
got a $2.5 million evaluation report, which you have not, have not provided to this Senate.
You had said you would do it before the legislation went through to the House and you did not.
Now let me go to the ASIC letter and we are going to disect this, Minister. You said in
response to my question that she did not agree with my “interpretation” of this letter.
And I think it is important to restate this: “it is clear that directing someone’s
Social Security payments to the Cashless Debit Card does not fall under the provisions which
Senator McCarthy referred to” Well I would very much like to see the advice
that you received from the Department on that because is certainly is not what this advice
from ASIC says. The Minister has not answered the questions
of legality raised by this ASIC advice because she has not done her job properly.
As well as the complete lack of independent evidence from 13 years of income management
in the Northern Territory and years of trials in places like Ceduna and the Kimberley, we
now know there are significant questions about the legal operations of this legislation.
Perhaps a Robodebt 2 issue right here for this Government.
Section 12DL of the Australian Securities and Investments Commission Act 2001 (ASIC
Act) provides that a person must not send another person a credit card or debit card
except in specified circumstances. These circumstance are, in summary, where
the person who will be liable to the issuer of the card in respect of its use has requested
the card, or in renewal or replacement of, or in substitution for, a card that has been
so requested or previously used for a purpose for which it was intended to be used.
These circumstances do not apply to the Cashless Debit Card, which of course is mandatory,
not voluntary and which the Government wants to impose on more than 23 000 Territorians.
So Labor wrote to ASIC last week asking for their advice on this legislation, that will
lead to thousands of cards being sent to recipients who have not asked for it. They have not asked
for it. That is the key to this response from ASIC.
The advice from the Australian Securities and Investments Commission about the Government’s
rollout of the Cashless Debit Card shows there are unresolved legal issues with the legislation.
In the letter they sent in response to our questions the ASIC Acting Chair Karen Chester
said - “If the eligible recipient has not given
a written request for the card to be sent to them, there may potentially be a contravention
of section 12DL.” The letter goes on to say, for the benefit
of Senators – “In 2016, an application was made to ASIC
for a no-action letter in relation to the initial trial of the CDC program.
A no-action letter granted by ASIC is a statement by ASIC that it does not propose to take action
in relation to the contravention or possible contravention identified in the letter in
the circumstances set out in the letter. It does not affect the operation of the law itself,
and does not affect the rights of other persons to take legal action in relation to a contravention
of the law. ASIC does not have the power to grant an exemption
from s12DL of the ASIC Act. The 2016 no-action letter granted by ASIC
was specified to apply to the trial of the program. Accordingly, it does not cover the
proposed ongoing and broader program to be enabled by the Bill.”
So ASIC advises the issues mainly rest with the sending of the cards.
And this is a key issue for potential recipients of the card in the Northern Territory and
other remote areas In many cases they would have to travel hundreds
of kilometres to get to the nearest Centrelink office to stand in line and sometimes wait
for days to be issued with the grey card What does the Minister and this Government
expect those people to do? Do none of you have any idea of the realities
of life for people on welfare, especially those who live in remote regions?
To get around this issue with section 12DL for the original trial, Indue, with the backing
of the Department of Social Services, was granted a no-action letter by ASIC in 2016.
It is illegal to send
the Cashless Debit Card.