Purpose of the Bill
At the 2021-22 Budget, the Government announced that the Community Development Program (CDP) would be replaced in 2023. The Social Security Legislation Amendment (Remote Engagement Program) Bill 2021 (the Bill) intends to provide a framework for piloting new approaches to delivering employment services in remote communities in line with the Government’s Budget announcement.
The move to replace the CDP has been welcomed by the Australian Human Rights Commission, which has been critical of the CDP since it was introduced. The Commission has previously raised concerns that the CDP could be inconsistent with this country’s obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
This Bill purports to work collaboratively with communities to develop a flexible program that will build the skills and vocational capabilities of people in remote communities. However, many of the more detailed aspects of the approach, including any protections for people participating in any employment scheme will be set out in legislative instruments and policy guidance.
We are told that this is to allow flexibility for communities to implement the program locally through their own approach.
Establishes a new payment under the remote engagement program which will be set at a rate between $100 and $190 per fortnight, for a maximum continuous period of 104 weeks.
Establishes high-level qualifying criteria for the remote engagement program payment.
Establishes that participation in the remote engagement placement is voluntary and a person can volunteer to leave the placement at any time if they choose.
Enables the Minister to make legislative instruments that specify additional qualification criteria, determine circumstances in which the remote engagement program payment is not payable, and fix the rate of the remote engagement program payment.
The new payment will be made to participants in the remote engagement program pilot communities. The Government states that these pilots will be co-designed in partnership with these communities and that these communities will trial the new payment alongside other approaches to supporting people into work or training.
However, s661A of the Bill states that someone will only qualify for the new payment under the program if:
They are receiving a qualifying remote income support payment; and
They are receiving employment services from a remote engagement program provider; and
the Secretary is satisfied that the person has agreed to participate, and is participating, in a remote engagement placement for at least 15 hours per week under the remote engagement program; and
They satisfy other qualification requirements as determined.
This new payment will be ‘topping up’ other income support payments that participants may receive.
Concerns with the Bill
Co-design
The Government has not announced which communities will trial these programs, how they were selected, or if indeed they are freely choosing to participate at the time of writing.
Therefore, it is impossible to say at this stage whether the principle of free, prior, and informed consent as set out in the United Nations Declaration on the Rights of Indigenous Peoples has been met or followed.
In their submission, the Human Rights Law Centre and the Northern Australian Aboriginal Justice Agency noted that:
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 co-design process for the pilot programs or future national framework.
The Australian Council for Social Service (ACOSS), in its submission, noted that:
Under the National Agreement on Closing the Gap the Commonwealth Government committed to working in partnership with Aboriginal and Torres Strait Islander people. It committed to:
partnership and shared decision making with Aboriginal and Torres Strait Islander people;
building the Aboriginal and Torres Strait Islander community-controlled service sector; and
sharing access to data to support Indigenous communities to make informed decisions.
The Government has not followed this approach in developing the proposed Remote Engagement Program.
Significant matters in delegated legislation
At this stage it is difficult to fully assess the merits of the Bill as there are significant matters that will be in delegated legislation and do not appear in the Bill. The Government states that this is to provide administrative flexibility so as to allow for co-design with impacted communities.
Proposed subsection 661A(1) sets out the circumstances where a person will qualify for a remote engagement program payment. This includes that the person satisfies the qualification requirements determined by the minister, by legislative instrument, under proposed paragraph 661A(2)(c).
Proposed section 661C provides that the minister may, by legislative instrument, specify the circumstances in which a remote engagement program payment is not payable to a person.
The Standing Committee for the Scrutiny of Bills, in Scrutiny Digest 15/21, wrote that:
The committee's view is that significant matters, such as when a person will be eligible or ineligible for a payment, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.
The Standing Committee for the Scrutiny of Bills, in Scrutiny Digest 15/21, noted the Government’s desire for administrative flexibility in the design of the program and stated that:
The committee 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.
Human Rights Concerns
At the public hearing and through submissions many organisations raised concerns that this pilot program does not properly provide participants with appropriate wages or industrial protections.
ACOSS does not support the Bill because it replicates one of the main flaws of the CDP – requiring people to undertake work without proper pay and workplace protections – and is fundamentally inconsistent with the Fair Work Strong Communities model. This is especially important because this Bill is the beginning of a process in which the Government must demonstrate its genuine commitment to the goals of self-determination and community-based governance.
Further, the Australian Human Rights Commission submitted that:
The Commission broadly agrees that compensation should be equivalent to the minimum wage for the hours participating in work like activities. However, it is unclear to the Commission how this has been calculated by the Government. If 30 hours of work in a fortnight may result in a supplementary payment of $100, even factoring in income support payments, it is unclear how this is equivalent to the national minimum wage of $20.33 per hour for these hours.
And the Human Rights Law Centre and NAAJA submitted that:
The Bill creates a social security supplement framework (that will expire on 1 July 2024) that requires people to work at least 15 hours per week, while expressly stating that participants are not to be considered employees. In this sense, the Bill creates another work-for-the-dole framework and is a missed opportunity to trial genuinely alternative approaches based on creating jobs and promoting the right to fair and just conditions of work. The framework established by the Bill, predicated on the concept of conditional welfare, thus risks repeating many of the mistakes of the CDP.
Lack of opportunities in remote areas
There is nothing in the Bill that outlines how the Government will address the underlying issue underpinning under-employment or unemployment in regional, remote, and very remote areas of the country: the lack of economic and job opportunities.
The government should not only enable people to be ‘ready to work’ but also create good economic opportunities for people to be able to have a job that pays a living wage, a failure to do this will turn this program into another version of the failed and harmful CDP.
A different approach
First Nations communities, Elders, leaders and organisations have long demanded that all levels of government, Commonwealth, state/territory and local, work in true partnership to create sustainable jobs that pay a living wage in remote communities. Self-determination, sustainable jobs with living wages, social, cultural and economic empowerment have been at the heart of the calls to abolish the CDP.
The Aboriginal Peak Organisations of the NT have put forward their proposal Fair Work Strong Communities to address the lack of good, sustainable jobs in remote communities. Under this plan, 12,000 jobs in community-controlled organisations would be created while valuing the strength, resilience, cultural, environmental and community care work that is done every day in these communities.
Recommendations
The Australian Greens do not support the Bill in its current form and, given the above outlined concerns, recommend that:
Recommendation
The Government begin the process of negotiating a Treaty or treaties with First Nations people.
A Treaty, or treaties, between the Traditional Owners of the land – people of the oldest living cultures on earth – and the state that imposed its authority violently upon First Nations people without their consent, has never been negotiated. A Treaty or treaties with First Nations people will, among other things, address the underlying factors that cause under-employment and unemployment for First Nations people living on Country or on homelands.
Recommendation
The Government engage in a co-design process for the follow-on program of the CDP from the very beginning, including for any proposed trial programs, to ensure the program is community-designed and endorsed.
Recommendation
The Government to include significant matters, such as the eligibility and detailed program conditions in the primary legislation rather than delegated legislation.
Recommendation
The Government should ensure that participants of any employment or training program are at least paid the minimum wage, receive superannuation payments and leave entitlements and enjoy workplace protection according to the industry standard.
Senator Lidia Thorpe
Greens Senator for Victoria