Introductory Info

Date introduced: 1 September 2021
House: House of Representatives
Portfolio: Indigenous Australians
Commencement: The day after Royal Assent or various dates as set out in the body of this Bills Digest.

Purpose of the Bill

The purpose of the Social Security Legislation Amendment (Remote Engagement Program) Bill 2021 is to:

• amend the Social Security Act 1991 and the Social Security (Administration) Act 1999 (the Administration Act) to establish a new remote engagement program payment to be paid to job seekers who participate in a remote engagement placement and
• amend the Age Discrimination Act 2004, the Social Security Act 1991 and the Administration Act to remove provisions that establish or refer to the now non-operational Community Development Employment Projects (CDEP) Scheme and related CDEP Scheme Participant Supplement.

Structure of the Bill

The Bill consists of one Schedule made up of four Parts.

Part 1 establishes the remote engagement program payment and Part 2 contains contingent amendments related to the new payment. Similarly, Part 3 comprises the main amendments that remove provisions relating to the CDEP Scheme while Part 4 is made up of contingent amendments relating to the end of the Scheme. 

Background

The Community Development Program (CDP)

The CDP provides employment services to those job seekers who fall outside the employment regions covered by the jobactive program—that is, in remote Australia.[1]

The program operates in over 1,000 communities and, as at 31 March 2020, there were 29,638 active CDP job seekers.[2] All people who are in receipt of income support, have participation requirements, and live in CDP regions are required to participate in the CDP as a condition of receiving income support.[3] While the program is not Indigenous-specific, a vast majority of participants identify as Indigenous.[4]

The program has been designed around the unique social and labour market conditions in remote Australia, where far fewer mainstream employment options are typically available, and Aboriginal and Torres Strait Islander peoples seek to retain elements of their traditional lifestyles (preserving Indigenous languages, histories and traditions).[5]

The CDP is essentially made up of two main elements—employment services and Work for the Dole participation. The employment services furnished under the CDP consist of personalised assistance from a service provider that are intended to help participants to build their skills and gain employment. The assistance can include ‘formal training, with the opportunity to gain qualifications, or foundational skills training, including language, literacy and numeracy and driver’s training’.[6]

Until relatively recently participation in Work for the Dole was a prerequisite for all CDP participants aged between 18 and 49 to meet their mutual obligation requirements.[7] Work for the Dole participation requirements were significantly higher for CDP participants than for social security recipients in non-remote areas (see discussion below). In light of the necessity to reduce COVID-19 viral transmission opportunities and promote social distancing, the Government lifted the requirement for Work for the Dole participation, along with other face-to-face meeting requirements, last year. CDP participants also benefited from the rise in social security payments during the first ‘wave’ of COVID-19. These factors, along with an increase in the population of remote communities as Aboriginal people returned to communities during enforced shutdowns, meant that the number of participants in CDP is believed to have risen during 2020, although data has not been released.[8]

From 12 May 2021 CDP participants have been able to participate in Work for the Dole activities on a voluntary basis but have been obliged to meet other mutual obligation requirements such as attending appointments with service providers and meeting job search requirements.[9] Mutual obligation requirements have been relaxed in the context of the development of a new remote jobs program, to commence in 2023.[10]

Origins of the CDP

After gaining office in 2013, the Government announced its intention to make major changes to the Remote Jobs and Communities Program (RJCP).[11] The RJCP was a single assistance provider that combined Job Services Australia (the national mainstream employment services program that was replaced by jobactive), Disability Employment Services, and the Community Development Employment Projects scheme (CDEP). The RJCP, which had been developed by the Rudd-Gillard Government and which commenced operations on 1 July 2013, effectively continued a general move towards the phasing out of CDEP arrangements and their replacement with an emphasis on private sector employment and mainstream income support and employment assistance services.

One of the main motivations behind the Government’s changes to the RJCP—which came into effect on 1 July 2015, along with the change of name to the CDP—was its judgment that the RJCP had involved a shift away from CDEP and ‘workfare’. This, it was felt, could lead to an increase in passivity, ‘sit-down money’, ‘welfare dependence’ and associated social ills, as work requirements were no longer attached to payments.[12] Then Prime Minister, Tony Abbott, who was previously part of the Howard Government that commenced the process of shutting down CDEP, subsequently said that ‘abolishing CDEP was a well-intentioned mistake and CDP is our attempt to atone for it’.[13]

The problem, as some commentators see it, is that while the CDP and CDEP may share similar titles there are key differences between the two programs—differences that have contributed to harms being caused to CDP participants, their families, kin, and communities.[14]

The CDEP and criticisms of the CDP

Under CDEP, the unemployment benefit entitlements of individuals were pooled and administered by a local Indigenous community or organisation, which used the money to employ participants at or around minimum wage rates, doing various forms of community work. As such, the scheme offered participants an alternative to receiving income support payments while also contributing to their communities. For most of its 40-year history CDEP operated on top of the safety net, meaning that participants who needed to meet other important obligations, or who were experiencing significant issues such as housing instability or mental or physical illness, were able to fall back on income support.

Because CDEP participants were paid at or around the minimum award wage, they could earn the equivalent of the Newstart allowance by working around 15 hours per week. Participants who wished to work more hours were able to ‘top up’ their income through the redirection of unspent wages and other sources of funds secured by the Indigenous organisations and communities that managed the scheme.

For most of its lifespan, CDEP was managed by Indigenous organisations and communities. These organisations and communities were given considerable discretion in the rules that they applied and the arrangements that they made, enabling them to be flexible with regards to things like cultural leave and the payment of variable wage rates.[15]

Centre for Aboriginal Economic Policy Research (CAEPR) scholar, Lisa Fowkes has pointed out that, by contrast, under the CDP participants are paid income support rather than a wage and are subject to relatively inflexible income support and compliance system rules. These rules are enforced by employment service providers under the CDP Funding Deed and social security legislation, with decision making having been taken out of Indigenous hands.[16]

One of the main criticisms levelled at the CDP was that the mutual obligation requirements for program participants were more onerous and inflexible than those for jobactive participants.

When the CDP was introduced all participants aged between 18 and 49 were required to participate in Work for the Dole activities for each day of the working week for up to 25 hours a week throughout the year, immediately upon qualification for payment.[17] This participation continued indefinitely while participants were in receipt of income support. Similarly, aged job seekers under jobactive are not required to participate in an annual activity—which can include approved activities other than Work for the Dole—until they have been on payment for 12 months. This requirement is for six months of each year rather than the full year. While the required hours of participation vary by age, they do not exceed 50 hours per fortnight.[18]

Many commentators have argued that CDP arrangements were both racially discriminatory and damaging, having resulted in a disproportionate number of non-compliance penalties being imposed on CDP participants.[19] This led to a class-action lawsuit being brought in 2019 by some CDP participants alleging that the CDP breached the Racial Discrimination Act 1975.[20] On 1 October 2021, the NIAA announced that they had reached an out-of-court settlement with the applicants.[21]

According to modelling undertaken by Fowkes, from the introduction of the CDP in 2015 to 2018, participants in the program received more than 50 per cent of all penalties applied to job seekers and over 80 per cent of serious penalties for persistent non-compliance.[22] This was despite the fact that CDP participants made up ‘at most, 5% of the total job seeker population’.[23] Fowkes attributed the increased penalties to both the more demanding requirements imposed on CDP participants, which presented them with ‘more opportunities to fail’, but also to their inflexible nature, with CDP participants breaching their obligations due to ‘social, familial, cultural and community obligations which take priority over work commitments’.[24]

In response to such criticisms the Government argued that nearly all sanctions on CDP participants were overturned, and that participants were back-paid when they reconnected with employment service providers.[25] Controversy over the disproportionate number of sanctions imposed on CDP participants led to a Senate Finance and Public Administration References Committee inquiry into the program.[26]

Other commentators have argued, relatedly, that the CDP is responsible for rising rates of poverty and financial stress in Indigenous households in many remote areas.[27]

Changes made to the CDP and attempts at reform

Over the life of the CDP the Government has made various changes to the program, as well as a number of attempts at reforms.

At the end of 2015, the Government put forward legislation to alter the CDP, namely, the Social Security Legislation Amendment (Community Development Program) Bill 2015 (the 2015 Bill). Had it passed, the 2015 Bill would have raised the income threshold at which income support payments began to taper for CDP participants; enabled CDP service providers to become the managers of income support payments; and, given the Minister the power to alter the operation of the Social Security Act in declared CDP areas through legislative instruments.

A number of policies were advanced in the Explanatory Memorandum for the 2015 Bill that might be enacted through those legislative instruments, including: weekly payments; penalties levied in proportion to the number of hours of CDP missed; increased provisions for cultural business and illness; and a new community investment fund.[28]

Various aspects of the 2015 Bill were strongly criticised by Indigenous stakeholders and service providers, in particular the lack of consultation before the 2015 Bill was drafted and announced, and a lack of clarity over whether community approval would be sought before the community became a declared area.[29] The 2015 Bill subsequently lapsed with the prorogation of Parliament in 2016 and was not reintroduced.

Following the negative response to the 2015 Bill, in December 2017 the Government issued a discussion paper canvassing three options for CDP reform: a new wage-based scheme, a slightly tweaked version of the 2015 Bill scheme, or continuing with the existing scheme with some adjustments.[30] Responses to the paper generally favoured the concept of a wage-based scheme (which would be similar to the former CDEP).

As a part of the 2018–19 Budget, the Government announced a new policy to bring CDP participants under the mainstream demerit-point Targeted Compliance Framework (TCF), and to create a subsidised employment scheme with 6,000 participants.[31] CDP participants had previously been explicitly excluded from the TCF.[32] This proposal met with sharply negative reactions from stakeholders when it was put forward as another Bill in 2018. This Bill also lapsed at the prorogation of Parliament.[33] However, a number of administrative changes were made to the CDP in 2019 which subsidised 1,000 employment positions and which may have resulted in a reduction in the number of penalties levied against CDP participants.[34] Also at the 2018–19 Budget, the Government reduced the number of required Work for the Dole hours from 25 hours per week to 20 hours per week.[35]

The Government regarded the CDP program as a success, claiming that it had significantly higher rates of engagement in activities and job placement than the RJCP program.[36] However, as noted above, the program was also criticised for the extremely high rates of sanctions and breaches issued against participants.

The Government funded an independent evaluation of the CDP, the final report of which was released in February 2019. The evaluation found that: the CDP was only delivering slightly higher 26 week employment outcomes than the former RJCP (an improvement of one percentage point, from 5.7 per cent to 6.7 per cent of participants achieving a 26 week employment outcome); more participants thought the program had been bad for their communities than good for their communities; high penalty rates were discouraging participation; and, despite very high levels of ill-health in remote Indigenous communities, the percentage of participants receiving medical exemptions from activity requirements was lower than that in the jobactive program.[37] Participants also complained about the lack of ‘top-up’ work, a reference to a feature of the former CDEP, mentioned above.

In light of these findings, the Government announced a number of administrative changes to the CDP to enable medical and other barriers to participation to be more easily recognised and decrease penalties levied on participants.[38] These changes appear to have had some effect on penalty rates and the recognition of CDP participants with vulnerabilities (see Table 1).

Table 1: summary of CDP participation and penalties

CDP Quarter ending:	September 2018	December 2018	March 2019	June 2019	September 2019
Active CDP job seekers	23,929	26,058	24,542	25,251	25,431
CDP job seekers w vulnerability	1,411 (6%)	1,691 (6%)	1,852 (8%)	2,270 (9%)	2,539 (10%)
Total Financial Penalties (n)	43,860	46,544	35,282	31,821	30,544

Source: Quarterly CDP Compliance reports

New remote jobs program

As a part of the 2021–22 Budget, the Government announced its intention to replace the CDP with a new remote jobs program.[39] The new program is to commence in 2023.[40]

The new program is to be ‘co-designed with Indigenous Australians to support remote communities by targeting job creation and skills development’.[41] Pilot sites in which ‘new ways of engaging job seekers and building skills that respond to the unique circumstances job seekers experience in remote Australia’ are to be trialled and will be announced ‘over the coming months’.[42]

The Government says it has ‘heard what communities and stakeholders have said about the CDP, and calls from remote communities for changes to the program’.[43] It maintains that ‘the design of the new remote jobs program model will better tailor the support job seekers need to find and secure work as the economy recovers’.[44]

The Government has released a discussion paper ‘to support the development of the new program’.[45] The closing date for submissions is 30 November 2021. A second consultation phase is to be run from late 2021 to April 2022, based on a discussion paper that shares findings from the pilot projects. A third and final consultation phase is to run from July 2022 to the commencement of the new remote jobs program, focusing on communicating the details of program implementation.[46]

In the preface to the discussion paper, Minister for Indigenous Australians, Ken Wyatt states:

We want to collaborate with stakeholders to develop a new remote engagement program that will better enable participants to contribute to goods and services that will strengthen the economic and social and cultural life of communities; build in-demand skills; and prepare to compete effectively for available jobs. But we also recognise that, in some of the most remote parts of Australia, there are not enough jobs available for all the people who want to work. Overall, there are fewer jobs available in remote areas, with less than two per cent of actively trading businesses located there. Approaches that focus only on participants moving into sustained employment in the open market are unlikely to be sufficient to meet the needs of people without jobs or job opportunities in these communities. We would like to identify and trial new approaches to engage people in this situation.

We want to design a new program with enough flexibility for employment services providers to tailor the supports they offer to meet participants’ needs. The overall design and management of the new program will continue to support progression into jobs where they are available, but will include alternative pathways for those who are ready to work but cannot find a job in their community, and for those facing ongoing participation barriers.[47]

Committee consideration

Finance and Public Administration Legislation Committee

The Bill was referred to the Finance and Public Administration Legislation Committee (the Committee) for inquiry. The Committee reported on 14 October 2021, recommending that the Bill be passed.[48] Labor made additional comments on the Bill and the Greens issued a dissenting report, which are discussed below under ‘Policy position of non-government parties’.[49]

Twelve organisations made submissions to the Committee.[50] Several concerns were raised in relation to the Bill, in particular, a lack of consultation on the Bill itself and the proposed remote engagement program, and the fact that the program is welfare-based and does not provide for the payment of award wages or legislated workplace protections.

In relation to the first of these concerns, the North Australian Aboriginal Justice Agency and the Human Rights Law Centre have stated:

The Bill dishonours the Federal Government’s commitment to formal partnerships and shared decision-making in the National Agreement on Closing the Gap. The introduction of the Bill itself demonstrates a concerning lack of commitment to partnership—we understand that key organisations, such as the Coalition of Peaks and APO NT, only learnt about the Bill when it was tabled in Parliament. While co-design is referred to in the Explanatory Memorandum, the Bill does not itself guarantee a codesign process for the pilot programs or future national framework.[51]

With regards to the second main concern, the North Australian Aboriginal Justice Agency and the Human Rights Law Centre maintain:

The Bill would pre-determine a welfare-based framework for the pilot programs, with payment of a small supplement for at least 15 hours of “work-like activities” per week. It is not a framework for proper jobs and wages, as proposed by the Fair Work Strong Communities model. If people are working, they should be employed and receive all the normal protections and benefits of employment. Anything less risks undervaluing the labour of First Nations peoples in remote communities and repeating wage injustices of the past.[52]

Further comments of stakeholders are canvassed under the heading ‘Key issues and provisions’ below.

Senate Standing Committee for the Scrutiny of Bills

In its Scrutiny Digest 15 of 16 September 2021, the Senate Standing Committee for the Scrutiny of Bills raised concerns over the Bill’s leaving significant matters for delegated legislation—namely, the qualification requirements for a remote engagement program payment (under proposed new subsection 661A(2)(c) and the circumstances in which a remote engagement program payment is not payable (under proposed new section 661C).

While noting the Explanatory Memorandum’s justification for the proposed use of delegated legislation—namely, that this would allow for flexibility in the context of a pilot program that is under development—the Committee nevertheless argues that it:

… has generally not accepted a desire for administrative flexibility to be a sufficient justification, of itself, for leaving significant matters to delegated legislation. It is unclear to the committee why at least high-level guidance in relation to additional qualification requirements and the circumstances in which a remote engagement program payment will not be payable to a person cannot be provided on the face of the bill. Additionally, the committee considers that providing the minister with the ability to determine that a remote engagement program payment is not payable in circumstances where there is no guidance on the face of the primary legislation provides the minister with a broad discretionary power. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.[53]

The last sentence of this quote recognises that a legislative instrument can only be allowed or disallowed (in whole or in part). Parliament does not have the capacity to amend a legislative instrument, and a legislative instrument is only subject to parliamentary debate where there is a motion for disallowance.

The Committee sought advice as to ‘why it is considered necessary and appropriate to leave matters relating to when a person will be eligible or ineligible for the remote engagement program payment to delegated legislation’, and, whether the Bill can be amended to include ‘at least high-level guidance’ on qualification requirements for the payment and the circumstances under which a payment will not be payable that may be specified in a legislative instrument.[54]

Position of major interest groups

As noted above, a dozen submissions have been made to the Finance and Public Administration Legislation Committee inquiry into the Bill, most of them by Aboriginal organisations.

The main concerns raised in relation to the Bill are:

• neither the Bill nor the remote engagement program it seeks to enable have been designed in collaboration or consultation with Aboriginal people, communities, and representative bodies and
• participants in the remote engagement program will not be paid at the rate of the national minimum wage or receive other employee entitlements.

Some submitters have also criticised the Bill on the grounds that it contains no commitment to reforms that would help to create employment opportunities in remote areas.

Policy position of non-government parties

While Labor Senators did not explicitly oppose the Bill, they flagged various concerns and argued that:

… the trial provided for in this legislation will not support nor create quality, long-lasting jobs in remote Australia. Neither does it transform the way Governments work with Aboriginal and Torres Strait Islander people, as laid out in the National Partnership Agreement on Closing the Gap. It is a missed opportunity to fundamentally reform CDP, or trial models that will genuinely contribute to job creation.[55]

Australian Greens Senators opposed the Bill in its current form and recommended that, among other things:

• the Government engage in a co-design process for the CDP replacement program in its entirety
• significant matters be included in the primary legislation rather than delegated legislation and
• remote engagement program participants be treated as employees, being paid at least the minimum wage, receive superannuation and leave entitlements, and enjoy workplace protections.[56]

Financial implications

The Explanatory Memorandum states that the costs of the measure will be absorbed within the Indigenous Advancement Strategy.[57]

If the measures result in higher participation levels, and lower levels of penalties being levied, than the current CDP, it could be expected to increase the total amount of social security payments made to participants.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[58]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights reported on the Bill on 16 September 2021.[59]

The Committee has observed that the new remote engagement program payment may help to promote the right to work and the rights to social security and an adequate standard of living. It has argued that in the absence of further detail regarding the specifics of the program—including who may qualify for the program, the qualifying conditions for the payment, the rate of pay, and the circumstances in which the payment will not be payable, all of which are to be set out in legislative instruments—it is difficult to determine whether this will be the case.

Key issues and provisions

Subsections 94(1), 500(1), and 593(1) and section 540 of the Social Security Act set out the criteria for qualification for the Disability Support Payment (DSP), Parenting Payment, Jobseeker Payment and Youth Allowance, respectively. Items 3, 4, 5 and 6 insert notes at these sections and subsection to specify that participants in a remote engagement placement may qualify for a remote engagement program payment whilst also qualifying for the receipt of the abovementioned income support payments.

Item 7 inserts new Part 2.13 – Remote engagement program payment into the Social Security Act. This proposed part specifies the general qualification criteria for remote engagement program payment at section 661A. More specific criteria in relation to qualifying remote income support payments—namely, DSP, Parenting Payment, Youth Allowance and Jobseeker Payment—are set out at proposed new section 661B.

Essentially, these criteria are that the job seeker must qualify for the relevant payment and be required to meet participation requirements in the case of DSP and Parenting Payment recipients, or to satisfy the activity test in the case of Youth Allowance and Jobseeker Payment recipients. Job seekers may still qualify for the remote engagement program payment if they are covered by a participation exemption for things like illness or accidents, as set out in the Social Security Act. In the case of Youth Allowance recipients, they do not qualify for a remote engagement program payment if they are satisfying activity test requirements through full-time study.

While item 7 of the Bill inserts into the Social Security Act references to the activity test, Schedule 1 of the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021, which is currently before the House of Representatives, proposes to remove from the Social Security Act all references to the activity test.[60] The Explanatory Memorandum of the latter Bill explains that the Bill seeks to discard ‘the unnecessary phrase “activity test”, which causes excessive complication in current provisions, and combining the requirement to seek and accept suitable paid work with the provisions dealing with employment pathway plan requirements. This is consistent with the longstanding practice that the requirement to seek and accept paid work is included in employment pathway plans’.[61]

Should Schedule 1 of the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021 commence before the Bill, then item 9 will repeal and substitute the table at proposed new subsection 661B(1) under item 7. The effect of this would be to ensure that references to the activity test and other changed participation requirements are not inserted into the Social Security Act by the Bill.

Proposed new subsection 661B(2) provides for the Minister to determine by legislative instrument a class of persons in receipt of another income support payment that may also qualify for a remote engagement program payment.

Proposed new subdivision B—Payability specifies conditions under which the remote engagement payment may be paid. It allows for the Minister to specify by legislative instrument circumstances under which a payment is not payable (proposed new subsections 661C(1) and (2)) and specifies that a payment may not be payable for a period over 104 weeks (proposed new subsection 661D(1)) or on or after 1 July 2024 (proposed new subsection 661D(2)).

Lack of protections and the promotion of insecure work

Proposed new section 661E provides for the rate of the remote engagement program payment to be that specified by the Minister by legislative instrument, so long as this is not less than $100 or more than $190 per fortnight. The Explanatory Memorandum points out that the aim of setting the payment at this level is to approximate the minimum wage when combined with the job seeker’s income support, assuming that the job seeker participates in a placement for between 15 and 18 hours per week.[62]

The Explanatory Memorandum stresses that the payment ‘will not be at a level high enough that people avoid taking up paid employment opportunities’.[63] This was an ongoing concern for some critics of the CDEP; namely that the relatively high incomes that could be secured through a combination of CDEP and welfare payments acted as a disincentive for participants to consider study, training or mainstream employment opportunities.[64]

In its report on the Bill the Parliamentary Joint Committee on Human Rights has argued, after the UN Committee on Economic, Social and Cultural Rights, that the right to just and favourable conditions of work is a right of everyone, including unpaid workers. As such, it maintains that:

… depending on the nature and hours of work performed in accordance with the placement, if such work were to constitute a form of employment for the purposes of international human rights law, there could be a risk that the amount of social security payable to the individual (of $100–$190 per fortnight for 15–18 hours work) may not amount to fair renumeration, particularly where participants perform work of equal value to work performed by actual employees of the remote engagement program provider.[65]

As the North Australian Aboriginal Justice Agency and Human Rights Law Centre see it:

… even if the supplement does equate to the basic minimum wage, people will still be worse off on the supplement than if they were employed to work 15–18 hours because if they were part-time employees, they would be able to claim partial payment of unemployment benefits, as well as being entitled to superannuation and other employee benefits.[66]

While the Bill specifies a minimum amount of hours per week that must be worked under the program, it does not stipulate a maximum number of hours (proposed subsection 661A(1)(c)). This raises the potential for the exploitation of participants, whether this be deliberate or inadvertent.

Neither the Bill nor the Explanatory Memorandum provide any indication as to what will happen to a participant’s supplement if they do not work the requisite 15 hours per week. (It is to be assumed that these arrangements are to be specified by legislative instrument made under proposed new subsection 661C(2)).[67] The Australian Human Rights Commission has expressed the concern that participants may not receive any supplementary payment if they fail to meet the minimum work hours requirement, ‘even if they have valid reasons for not doing so’.[68] Both the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights noted concerns regarding the absence of detail in the Bill and Explanatory Memorandum regarding qualification requirements for the payment and the circumstances under which a payment will not be payable.[69]

Relatedly, the Australian Council of Social Service (ACOSS) has argued that it is not clear from the Bill whether volunteers who receive the supplement will be subject to Targeted Compliance Framework requirements in relation to their participation. If this were the case, then ‘the base part of the allowance—if it is activity-tested as are the Jobseeker and Youth Allowance payments—could be reduced when, for example, someone does not attend without what is accepted as a ‘reasonable excuse’’.[70] As ACOSS sees it, ‘just as people undertaking work should be paid proper wages, any issues of non-attendance should be dealt with using workplace relations disciplinary procedures, not income support penalties’.[71] In public hearings on the Bill, ACOSS senior policy advisor Simone Casey reiterated this position, stating ‘we [ACOSS] certainly don’t think that the current measure to introduce an income support supplement should be linked to any kind of income support compliance program at all’.[72]

Proposed new section 661F provides that remote employment program participants are not to be treated as though they were workers for the purposes of relevant Commonwealth legislation. As noted above, this is a highly contentious aspect of the Bill.

As part of a job seeker’s mutual obligation requirements they may be compelled to participate in a work-focused program delivered by a community or private enterprise organisation. Job seekers who participate in approved programs of work are not taken to be employees for the purposes of the Work Health and Safety Act 2011, the Rehabilitation and Compensation Act 1988, the Superannuation Guarantee (Administration) Act 1992 or the Fair Work Act 2009.[73] The Department of Education, Skills and Employment purchases personal accident insurance and/or product liability insurance to cover job seekers in currently approved programs of work and Work for the Dole host organisations are required to ensure that ‘the workplace and activity meet all work and safety obligations under relevant legislation and program requirements, and must maintain insurances as outlined in their relevant Deed and understand the coverage available to them under their own insurance policies’.[74] Presumably, similar insurances will be taken out and required in relation to the remote engagement program. In the course of public hearings on the Bill a representative from the Department of Social Services indicated that ensuring such protections would be a matter for the National Indigenous Australians Agency, which is responsible for managing the policy and the remote engagement program.[75]

Unions have consistently argued that it is unacceptable for job seekers who are engaged in work or work-like activities as a part of their mutual obligations to be denied access to basic workplace rights, minimum wages and the protection of occupational health and workplace legislation. As they see it, participation in such programs can pose risks to participants as well as helping to undermine Australia’s wage system—potentially dragging down pay and conditions for all workers.[76]

Participation in remote engagement program placements is to be voluntary for eligible job seekers in pilot sites.[77] However, the Explanatory Memorandum points out that any participant in work‑like activities in a remote engagement placement ‘regardless of whether or not the participation is required in accordance with a term of an employment pathway plan’ will not be taken to be an employee or worker for the purposes of Commonwealth industrial legislation.[78]

Submissions to the Finance and Public Administration Legislation Committee inquiry into the Bill have echoed the concerns of unions expressed in relation to approved programs of work. For example, Aboriginal Peak Organisations Northern Territory has argued:

In effect the Bill would enable the Government to create another class of worker whose income support is benchmarked against the minimum wage, but who would not have access to the normal entitlements of minimum wage employees. It may be argued that the scheme is voluntary. But it would be operating in an environment where there are very few job options and many live in poverty. In any event exploitation of workers cannot normally be justified on the basis that these workers agreed.[79]

Similarly, the North Australian Aboriginal Justice Agency and the Human Rights Law Centre maintain:

While the intent behind the Bill appears genuine, it risks creating a model of disempowerment and difference. Ultimately, two classes of ‘worker’ will be created and may work alongside each other in a government or community organisation—one will receive a decent wage, superannuation, protections from workplace injury and have the freedom to spend their wage as they see fit and to potentially claim part payment of social security benefits. The other will be working for a social security supplement and have none of those rights and protections.[80]

Need to create increased employment opportunities

Another related concern is that there is no clear pathway from remote employment program participation into paid employment. Jon Altman, Elise Klein, Francis Markham and Zoe Staines have argued that ‘even if volunteers participate in the trials for two years and can build important skills and experience, there is no guarantee provided by the REP Bill that they will have a paid job at the trial’s completion’.[81] As Altman, Klein, Markham and Staines—along with a number of other submitters to the Finance and Public Administration Legislation Committee inquiry into the Bill—see it, a greater emphasis needs to be placed on demand-side interventions and the creation of employment opportunities in remote communities. ACOSS argued:

Neither shortages of jobs nor the mismatch between people’s skills and qualifications will be addressed unless there is direct investment in job creation and workforce development strategies. These require a long-term commitment to, and investment in, remote communities, that must be determined and governed by the communities themselves.[82]

The Explanatory Memorandum indicates that remote engagement program placements ‘will not be a job, but will aim to give jobseekers experience that will enable transition to paid employment’.[83] It also points out that the time limits placed on the payability of the remote engagement program payment are being imposed because ‘the remote engagement placement is not intended to be a long-term arrangement, but has been developed to improve jobseeker skills and job readiness as well as to assist the transition to paid work’.[84] As such, the placements may largely constitute what Minister Wyatt has referred to as a ‘new approach’ or ‘alternative pathway’ to engaging people in contexts where there are insufficient employment opportunities in the open market.[85]

Lack of consultation and collaboration

In the introduction to the discussion paper on the new remote engagement program, Minister Wyatt indicated that the Government wishes to ‘collaborate with stakeholders to develop a new remote engagement program’.[86] Similarly, the Explanatory Memorandum to the Bill suggests that the Government is committed to co-designing the remote engagement program pilots with remote communities, and that it views this cooperation as being critical to the pilots’ success.[87]

The Bill is presented as a means to ‘give effect to the Government’s commitment to work in partnership with Indigenous communities’.[88] However, many Aboriginal and welfare organisations think the Government got off to a bad start in this process through its failure to consult and collaborate on the Bill and the remote engagement program payment that it seeks to enable.

For example, while the Northern Territory Council of Social Service has welcomed the Government’s decision to abolish the CDP and develop a replacement scheme in cooperation with Aboriginal people and communities, it argues:

… despite this commitment, the proposed Bill has not been designed in collaboration or consultation with Aboriginal people, communities, and representative bodies, and it falls short of addressing the lack of access to paid employment in remote communities. Under the National Agreement on Closing the Gap, the Australian Government committed to partnership and shared decision making with Aboriginal and Torres Strait Islander people. The Bill falls short of this commitment. In order to meet Closing the Gap targets, it is essential that genuine engagement and shared decision-making processes and principles are adhered to.[89]

The North Australian Aboriginal Justice Agency and the Human Rights Law Centre are particularly concerned about the lack of consultation on the Bill because, as they see it, the Bill establishes a welfare-based approach to the development of the new remote engagement program:

While the Government states that it will engage in co-design at a local level in relation to the pilot sites, this Bill sets the scene for welfare-based pilots only. At the very least, it does not create a legislative basis for an alternative approach. Whether people are employed or kept on social security is a crucial question, with significant implications for the rights of people in remote communities to fair and just conditions of work, to social security and to non-discrimination and equality. It is a question that should be approached through shared decision-making between the Federal Government and Aboriginal and Torres Strait Islander peoples, as required by the Closing the Gap Agreement. Given that this Bill will set the scene for the future national framework, the Government should have engaged broadly with Aboriginal and Torres Strait Islander peoples and representative organisations.

The Government’s stated commitment to engage in co-design in relation to the pilot sites and a future national framework is not reassuring in light of the breach of trust that the abrupt introduction of this Bill represents. Significantly, co-design, partnership and shared decision-making in the development, implementation and evaluation of the pilot sites and the future national framework are not enshrined in the Bill at all.[90]

In its report on the Bill the Parliamentary Joint Committee on Human Rights acknowledged the importance of the Government’s aim to co-design the remote jobs program with Aboriginal communities. It also pointed out that Australia has an obligation under international law to consult with Indigenous peoples in relation to actions that may affect them. It then goes on to note:

… it is unclear whether communities have been genuinely consulted about the proposed measure prior to the introduction of this bill, noting that the obligation to consult under international human rights law includes the right of indigenous peoples to ‘influence the outcome of decision-making processes affecting them, not a mere right to be involved in such processes or merely to have their views heard’.[91]

Evidence from the National Indigenous Australians Agency suggests the Government sees the proposed use of delegated legislation and the flexibility this enables as allowing for co-design of the program.[92] On this view, the potential to negotiate matters such as the precise amount of the supplementary payment and requirements associated with participation in different sites, to be presented to the Parliament in legislative instruments, constitutes co-design.

The amendments at Part 1 are to commence on a day to be fixed by Proclamation. However, if the provisions do not commence within six months of the Act’s receiving Royal Assent, they will commence on the day following the end of that period.

End of the CDEP Scheme

As noted above, the CDEP scheme was shut down some years ago. In order to help Northern Territory CDEP participants to manage any changes in income involved in the transition to income support, the Rudd-Gillard Government introduced the Northern Territory CDEP Transition Payment.[93] The provisions in this fund have been expended.[94]

In the interests of ‘modernising and streamlining the social security legislation’[95] Parts 3 and 4 of the Bill repeal from the Age Discrimination Act 2004, the Social Security Act 1991 and the Social Security (Administration) Act 1999 provisions that establish or refer to the CDEP scheme and the CDEP Scheme Participation Supplement Transition Payment.

The provisions at Part 4 will commence only if the provisions at Part 3 are enacted and commence before Schedule 1 of the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021 commences. The provisions at Part 3 commence the day after Royal Assent.