By Dr Allan Ardill
Griffith Law School
Unemployment in Australia has not fallen below 5 per cent since March 2009 and is not predicted to fall below that level before 2023. Together with technological disruption to traditional forms of work, contracting-out and casualization, the bleak future for sustainable job creation has seen some scholars and business leaders debate the merits of introducing a universal basic income. At the same time those agencies who have traditionally worked with the unemployed together with business leaders have called for an increase to the unemployment benefit itself which currently stands at $550.20 per fortnight. Despite the systemic nature of unemployment and the limited agency in those subjected to poverty from unemployment, the Australian government has persisted with plans to introduce drug testing trials to tackle long-term unemployment, encourage greater individual responsibility, and to help with ‘budget repair’.
Plans for a two year trial involving mandatory drug testing for 5,000 randomly selected recipients of Newstart Allowance and Youth Allowance (other) are currently before the Senate in the Social Services Legislation Amendment (Drug Testing Trial) Bill 2018. Unlike the paucity of evidence in favour of the cashless welfare debit card (see Dr Shelley Bielefeld’s Technologising the Poor) after years of trials, the proposed welfare drug testing trial actually has a substantial body of evidence against it suggesting it is not viable (see especially Lebron v Secretary, Department of Children and Families (Fla), 772 F 3d 1352, 1366 (11th Cir 2014)). The evidence is based on the experience of similar programs in Canada, England, New Zealand and the United States. Research from these jurisdictions has shown that the high cost of testing for drugs is not justified by positive outcomes (see eg Ontario Income Security Reform Working Group 2017, and Pérez-Muñoz 2017). It also shows that mandatory random drug testing is likely to offend basic human rights in terms of breaching privacy, imposing compulsory medical treatment, and removing civil liberties (see eg Wincup 2014). Yet the Australian government view reported in May this year by its members on the Senate Community Affairs Legislation Committee is that this overseas evidence ‘suggests the Australian context may be different.’
According to the Explanatory Memorandum the government rationale is that drug ‘abuse is a major barrier to social and economic participation and is not consistent with community expectations around receiving taxpayer funded welfare payments.’ The aim of the trial ‘will test the effectiveness of decreasing substance abuse through random drug testing, in an effort to improve employment outcomes for trial participants.’ Putting aside the question of whether the aim matches the rationale, a program of random and mandatory drug-testing is likely to drive illicit drug users away from state welfare to other services resulting in cost-shifting. The government has form when it comes to measuring the efficacy of its welfare “reforms”. In particular the Auditor-General’s Report into the effectiveness of the cashless debit card found, ‘its approach to monitoring and evaluation was inadequate’ and so ‘it is difficult to conclude whether there had been a reduction in social harm and whether the card was a lower cost welfare quarantining approach.’
Mechanics of the program
The Drug Testing Bill 2018 provides for trials in three locations: Canterbury-Bankstown, Logan, and Mandurah. Testing will be administered by private contractors ‘either in a private space at the Centrelink office or on the provider’s premises nearby’, and recipients will be selected for testing based on a ‘data-driven profiling tool’ to ‘identify relevant characteristics that indicate a higher risk of substance abuse issues’. Drug tests will assess whether a ‘testable drug’ is present in a sample of the person’s saliva, urine or hair. A ‘testable drug’ means ‘methamphetamine, methylenedioxy-methamphetamine, tetrahydrocannabinol, opioids or another substance prescribed by the drug test rules for the purposes of this definition’.
Recipients who test positive will be subject to income management for a 24 month period. In addition to income management, they will be subject to further random tests, the first of which will occur within 25 working days of the initial positive test. Recipients who test positive to more than one drug test in the 24 month period will be referred to a Department of Human Services’ contracted medical professional for assessment. If the medical professional recommends treatment, the recipient will be required to complete the recommended treatment activities designed to address their substance abuse as part of their Employment Pathway Plan (also known as a Job Plan).
The cost of testing will be recovered from the recipient and ‘will be no more than the lowest cost that any test is available to the Department of Human Services under their contract with the drug testing provider.’ The cost will be deducted from future benefits ‘at a rate percentage set by the Secretary, capped at a maximum of 10 per cent.’ The Secretary will also have discretion ‘to vary the person’s repayment rate’ on grounds of ‘financial hardship’ or to increase the rate at the request of the person.
The May 2018 Senate Community Affairs Legislation Committee Report noted ‘that some human rights are impacted,’ referring to a March 2018 Report by the Parliamentary Joint Committee on Human Rights which expressed concerns that drug testing may interfere with and limit ‘the rights to privacy, bodily integrity, social security and equality and non-discrimination.’ Yet both the Explanatory Memorandum and the government members’ contribution to the May Senate Committee Report decided that ‘to the extent that it may impact human rights, the impact is for a legitimate objective, and is reasonable, necessary and proportionate.’ The Government also discounted the tendency of international research to show mandatory welfare drug testing is not cost effective relying instead on two peer reviewed literature surveys indicating some success with mandatory drug treatment programs. The majority report also relied on an Australian Institute of Health and Welfare’s 2016 National Drug Strategy Household Survey alleging that unemployed people were three times more drug likely to have recently used drugs such as ice and other amphetamines than those who were employed. This survey was at odds with research from other jurisdictions finding that unemployed people tend to use illicit drugs less frequently than those who are employed.
Although Ontario enacted welfare drug testing laws in 2001 it has never used them due to the reach of the Ontario Bill of Rights, the Canadian Charter of Rights, and Ontario Human Rights Commission policy which have acted as a brake on laws seen as excessive in terms of discrimination against people suffering addiction. New Zealand only tests welfare recipients if it is necessary as a safety measure for specific jobs and training. Where it has tested welfare recipients for drugs only 0.5% have failed. This has meant the cost of testing to the government far outweighs any benefit. It also suggests that unemployed people use illicit drugs less often than those in the general population.
Mandatory drug-testing and treatment trials had broad political support in the UK between 2008 and 2015 but floundered following formal consultation and sustained criticism. The Department of Work and Pension’s own independent Report cautioned against welfare drug-testing based on the experience of stakeholders. In December 2016 the Black Report commented ‘we doubt whether mandation of treatment … should be the first response to the evident problems for the cohorts under discussion,’ ‘there is a strong consensus that mandating treatment would lead to more people hiding their addiction than reveal[ing] it’, and ‘[w]e also heard from health professionals serious concerns about the legal and ethical implications of mandating treatment and whether this would be a cost effective approach.’
In the USA random drug-testing of welfare recipients tends to be unconstitutional because a search without suspicion violates the Fourth Amendment prohibition on unreasonable searches and seizures. However, this has not stopped many states enacting or trying to enact laws requiring some form of welfare drug-testing. According to the peak body, National Conference of State Legislatures, by March 2017, ‘at least 20 states have proposed legislation requiring some form of drug testing or screening for public assistance recipients’. Despite the political desire for these schemes the Centre for Law and Social Policy points out that the laws are rarely implemented. Laws are rarely implemented because there is virtually no evidence supporting the effectiveness of drug-testing programs. What little evidence is available shows that welfare drug-testing is not cost effective. In Lebron 772 F 3d 1352, 1366 the Court of Appeal recognised that ‘rates of drug use in the [welfare recipient] population are no greater than for those who receive other government benefits, or even for the general public,’ resulting in the irony that it cost Florida more to run the program of welfare drug screening than to provide benefits to those tested.
Similar results have followed in the few other jurisdictions that have experimented with welfare drug-testing. For these reasons courts have noted that drug testing schemes, whether applied to candidates for public office or welfare recipients, are more ideological than evidence-based and ‘are merely symbolic’ (see eg Lebron v Secretary, Department of Children and Families (Fla), 710 F 3d 1202). This explains why states have tried to enact laws of this kind without delivering any actual programs. Welfare drug testing is kept in check in the USA by the Fourth Amendment and the cost ineffectiveness of implementing it.
Unlike other jurisdictions that were forced to limit their drug-testing programs to comply with laws guaranteeing privacy and freedom, Australia has no body of formal rights law. Therefore, any brakes here on welfare drug testing will be contingent on the strength of public information, debate, the legislative process and the political composition of the Senate.