Report - Family and community services legislation amendment (special benefit activity test) Bill 2002
THE INQUIRY
1.1
The Family and Community Services Legislation
Amendment (Special Benefit Activity Test) Bill 2002 (the Bill) was introduced into the Senate on 21 October 2002. On 16 October 2002, the Senate, on the
recommendation of the Selection of Bills Committee (Report No. 10 of
2002), referred the Bill to the
Committee for report by 11 November 2002. The reporting date was subsequently extended to 2 December 2002.
1.2
In recommending the reference of the Bill to the Committee, the Selection of
Bills Committee provided the following issues for consideration:
The Bill
will expose holders of temporary protection visas (TPV) to activity testing and
mutual obligation. Typically holders of TPVs have absent or poor English
language skills, high levels of poverty, unstable accommodation and few
resources, and the following issues need to be examined:
- the ability of people to
comply with complex mutual obligation requirements;
- the impact of breaching and
financial punitive measures on already disadvantaged people;
- the ability of job network
providers to provide language and culturally appropriate employment services;
and
- the ability of TPV holders to
access the review and appeals system.
Consideration of the
application of mutual obligation to the nominated special benefit recipients
with particular consideration of:
- language barriers and
availability of English language tuition;
- availability of Job Network
services; and
- practical implications for
administration by Centrelink.
1.3
The Committee considered the Bill at a public
hearing on 14 November 2002. Details of the public hearing are referred to
in Appendix 2. The Committee received 52 submissions relating to the Bill
and these are listed at Appendix 1 and may be accessed through the Committee’s
website at https://www.aph.gov.au/senate_ca
THE BILL
1.4
As part of the 2000-2001 Budget, the Government
announced a range of measures addressing the issue of unauthorised arrivals in
Australia. The Bill proposes to give legislative effect to one of these
measures.[1]
1.5
Under the Bill, from 1 January 2003, certain
recipients of special benefit who hold a visa of a type that has been issued
for temporary protection, humanitarian or safe haven purposes (a TPV) will be
subject to an activity test regime that is similar to the one that currently
operates in relation to Newstart allowance.
1.6
The Second Reading Speech explained that the
measures contained in the Bill aim to:
...encourage social and economic participation by treating work
force age holders of visas issued for temporary protection, humanitarian or
safe haven purposes in a similar way to Australian nationals of work force age;
that is, they will be required to be self-reliant and to fulfil a mutual
obligation to the Australian community. The measure also reinforces community
support for the humanitarian immigration program.[2]
1.7
Currently, there are approximately 8,800 TPV
holders, and 4,262 of those are special benefit recipients.[3]
ISSUES
Mutual obligation – activity testing
1.8
The concept of ‘mutual obligation’ underpins the
provision of income support for unemployed people in Australia. The concept is
based on the proposition that it is fair and reasonable to ask unemployed
people to participate in an activity (including job search), that improves
their employment prospects and makes a contribution to their community, in
return for financial support.[4]
1.9
The Bill proposes to formalise the current
administrative arrangements of imposing activity tests on certain recipients of
a special benefit.[5]
1.10
Under the new special benefit activity test,
nominated visa holders will be required to search for work, to participate in
vocational training, the Work for the Dole program and other prescribed
activities, and to enter into Special Benefit Activity Agreements. They will
also be subject to compliance testing, including fortnightly reporting
requirements, and to penalties for non-compliance with the activity test or with
the terms of their Special Benefit Activity Agreement.[6]
1.11
Nominated visa holders will also be subject to
other conditions relating to industrial action, seasonal work, and moving to an
area of lower employment prospects. These conditions are all comparable with
conditions that apply to Newstart allowees.[7]
1.12
The activity test and those other conditions
will only apply to nominated visa holders who, from 1 January 2003, apply for
special benefit and are of work force age, or who reach work force age after that
date. However, the Committee heard evidence that potentially anyone who has a
TPV could be affected by this measure. That is, a TPV holder who receives
special benefit before 1 January 2003 and after that date:
...get[s] a little bit of work that precludes their special
benefit for a period – even if it is for a few days, a week or six months – as
soon as they reapply, they will be affected [by the measure in this Bill].[8]
1.13
Several submissions expressed concern that the
current legislation does not permit full-time students to receive special
benefit payments.[9]
However, the Department of Family and Community Services (the Department)
advised the Committee that:
...the measure makes an important change to existing legislation
by allowing special beneficiaries to undertake full-time study without losing
their entitlement to special benefit.[10]
1.14
The Department also noted the various further
exemptions from the requirements of activity testing. It submitted that:
Provisions in the Bill also provide for exemptions from the
activity test where a person has caring responsibilities, is temporarily
incapacitated for work, and in special circumstances and other prescribed
situations.[11]
TPV holders’ ability to meet mutual obligation
requirements
1.15
A view expressed by many submissions to the
Committee was that TPV holders, without the adequate support of government,
would be ill-equipped to meet the bureaucratic requirements of an activity
agreement. For instance, the National Union of Students submitted that:
Language barriers not only mitigate against TPV holders finding
employment but also raise serious questions about the ability of such people to
successfully fulfil mutual obligation requirements.[12]
1.16
In particular, numerous submissions noted that
TPV holders would not be eligible for English classes funded by the Department
of Immigration and Multicultural and Indigenous Affairs and would not have
access to the full range of assistance under the Job Network.[13] For instance, the Refugee
Council of Australia submitted that when the Bill was first foreshadowed:
...the community sector was given the impression that the
imposition of activity testing would be introduced with certain compensatory
measures, in particular access to language instruction, job search assistance
and vocational training. This would have given the TPV holders a chance to meet
the requirements being imposed upon them.[14]
Language assistance
1.17
The Department acknowledged the particular needs
of customers from diverse cultural and linguistic backgrounds. It submitted
that Centrelink’s administration of special benefit is sensitive to these
differences, and its services include multi-language information products,
translation and interpreting services.[15]
1.18
The Department also advised the Committee that:
Centrelink will ensure that Special Benefit Activity Agreements
include activities that are appropriate for the customer’s individual
circumstances, focussing on activities that develop English language skills
where this represents a barrier to participation. The legislation specifically
requires that, in approving the terms of a Special Benefit Activity Agreement,
the Secretary (or delegate) must have regard to the person’s capacity to comply
with the proposed agreement and the person’s needs.[16]
1.19
To support TPV holders in meeting their
obligations under an activity agreement, the Department of Education, Science
and Training will provide access to the Language, Literacy and Numeracy
program. This will provide basic training for eligible job seekers whose skills
are below the level considered necessary to secure sustainable employment or
pursue further education and training. It is designed to help remove a major
barrier to employment and improve participants’ daily lives. The Department
stated that ‘this activity will be central to a Special Benefit Activity
Agreement where required and will be the preferred activity option in many
cases’.[17]
Job Network assistance
1.20
Currently, TPV holders have access to Job
Matching Only services under existing Job Network arrangements. Several
submissions noted that the wider range of assistance available to others under
the Job Network was not available to TPV holders.[18]
1.21
The Department advised that from 1 July 2003, TPV holders will have access to Job
Search Support services—including development of a vocational profile and
résumé to be matched to employment opportunities in the Job Search database.
However, the Department noted that:
TPV holders will not have access to long-term intensive support
employment services as it is not considered appropriate given the temporary
nature of their visas.[19]
Rate and impact of breaching
1.22
A further issue that arose during the
Committee’s inquiry was the incidence and effect of any penalties imposed for
failing to comply with an activity agreement.
1.23
Several submissions addressed this issue and
argued that the peculiar disadvantage and vulnerability of TPV holders made
them more likely to breach their obligations under an activity agreement.[20] For instance, the South
Australian Council of Social Services submitted that:
There is significant evidence that people with poor language
skills, temporary accommodation, and few personal resources or family support
are more likely to be breached. TPV holders would be at greater than average
risk of losing part or all of their Special Benefit as a result of being
breached.[21]
1.24
Similarly, the National Welfare Rights Network
and ACOSS, quoting from the Independent Review of Breaches and Penalties in the
Social Security System (the Pearce report), submitted that:
People with literacy and numeracy problems and people with poor
English comprehension were identified in the Report as being in the group
considered to be “especially vulnerable to particular difficulties in
receiving, understanding or being able to comply with official communications
about obligations such as attending interviews or returning forms”.[22]
1.25
In addition, a number of submissions warned that
the special circumstances of TPV holders meant that they would be more affected
by the penalties imposed for any such breach.[23]
For example, the Welfare Rights Centre (SA) suggested that:
...people who are already marginalised are not only more likely to
be breached, but the level of their disadvantage is significantly increased by
breaching policies.[24]
1.26
However, addressing this issue the Department
noted that:
Customers with language and cultural barriers do not necessarily
incur a higher rate of breaches. FaCS research shows that, with some
exceptions, people born overseas have a lower breach rate than people born in
Australia (in 1999-00, 12 per cent compared to 15.2 per cent).[25]
1.27
The Department also informed the Committee that
in circumstances where a customer has not complied with their activity test
requirements, the reasons for the failure to comply are assessed. If the person
has a reasonable excuse, taking into account the particular circumstances of
that individual, no penalty will apply. It submitted that:
When considering what is reasonable, the decision-maker will
take into account the circumstances that are specific to the particular job
seeker and also whether or not the requirement imposed on the customer was
reasonable – that is, whether compliance with the requirement was within the
customer’s capabilities.[26]
Access to appeal and review
1.28
TPV holders have the same legal rights to access
the review and appeals system as other recipients of special benefit.
Specifically, beneficiaries who are dissatisfied with a decision can seek a
review by the Centrelink officer who made the decision. If they wish to pursue
the matter further they may subsequently ask for a review by another Centrelink
officer. If the special beneficiary remains dissatisfied they can access a
process of external review to the Social Security Appeals Tribunal, the
Administrative Appeals Tribunal, the Federal Court and, ultimately, in rare
cases, to the High Court.[27]
1.29
However, several submissions to the Committee
suggested that language and cultural issues were a significant practical
barrier preventing TPV holders from accessing the appeal and review mechanisms.[28] For example, the South
Australian Council of Social Services submitted that TPV holders are:
...likely to have problems with fair access to the review and
appeals process. Language and other barriers will make it more difficult for
them to understand the legalistic and bureaucratic administrative system.[29]
1.30
In response to these claims the Department
advised that, for each of its internal review processes, Centrelink arranges
for an interpreter to be available as required. In respect of the external
process of review, the Department submitted that:
The Social Security Appeals Tribunal and the Administrative
Appeals Tribunal are sensitive to the needs of those from a diverse cultural
and linguistic background and will arrange for an interpreter to be present at
the person’s appeal hearing if required. Migrant resource centres and welfare
groups may also be able to assist the person with their appeal.[30]
1.31
The Department concluded that these efforts were
reflected in the statistics that indicate that special benefit recipients access
the review and appeals system more readily than others do. The Department
submitted that:
Centrelink data show that in the period January to September
2002 a total of 89 special benefit recipients lodged appeals with the Social
Security Appeals Tribunal. This represents 0.7 per cent of the special benefit
population, which is in comparison with 0.2 per cent (1089 appeals) for
newstart and 0.1 per cent for youth allowance (413 appeals). These figures
indicate that special benefit recipients use the appeals system considerably
more than those from other similar payments categories.[31]
RECOMMENDATION
1.32
The Committee reports to the Senate that it has
considered the Family and Community Services Legislation Amendment (Special
Benefit Activity Test) Bill 2002 and recommends that the Bill proceed.
Senator Sue Knowles
Chairman
December 2002
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