Malarndirri McCarthy (NT, Australian Labor Party) Share this | Hansard source

Thank you, Madam Deputy President. I pick up on the minister's response, and clearly this has been the problem with the government: it's about picking 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 provided to this Senate. You had said you would do it before the legislation went through to the House, and you did not.

Let me go to the ASIC letter, and we are going to dissect this, Minister. You said in your response to my question that you did not agree with my interpretation of this letter, and I think it's important to restate this. You said:

… it's clear that directing someone's social security payment to the cashless debit card does not fall under the provision which Senator McCarthy referred to.

Well, I would very much like to see the advice that you received from the department on that, because it certainly is not the advice from what ASIC says. Minister, you have not answered the questions of legality raised by this ASIC advice, because you have not done your job properly.

As well as the complete lack of independence evidenced 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, the ASIC Act, provides that a person must not send another person a credit card or a debit card except in specified circumstances. These circumstances 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 is mandatory, not voluntary, and which the government wants to impose on more than 23,000 Territorians.

Labor wrote to ASIC last week asking for their advice on this legislation, which will lead to thousands of cards being sent to recipients who have not asked for them. They have not asked for them. 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.

For the benefit of senators, the letter goes on to say:

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 that the issues mainly rest with the sending of the cards. 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 do this minister and this government expect those people to do—just have no card? None of you have any idea of the realities of life for people on welfare. 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. But it is illegal to send these cards.