Referral
1.1
On 1 September 2021, the Social Security Legislation Amendment (Remote Engagement Program) Bill 2021 (bill) was introduced and read a first time in the House of Representatives by the Minister for Indigenous Australians, the Hon Ken Wyatt MP.
1.2
On 2 September 2021, pursuant to a recommendation of the Senate Selection of Bills Committee, the Senate referred the provisions of the bill to the Senate Finance and Public Administration Legislation Committee (committee) for inquiry and report by 14 October 2021.
Conduct of the inquiry
1.3
Details of the inquiry, including links to the bill and associated documents, were placed on the committee’s website at: www.aph.gov.au/senate_fpa.
1.4
The committee wrote to a number of relevant organisations to notify them of the inquiry and invite submissions by 20 September 2021. The committee received 13 submissions, as listed at Appendix 2.
1.5
The committee held a public hearing for the inquiry in Canberra on 23 September 2021. Witnesses that appeared at the hearing are listed at Appendix 3.
1.6
The committee thanks the organisations that assisted the committee’s inquiry through written submissions and by providing evidence at the public hearing.
Context of the bill
1.7
Remote communities face unique and complex employment challenges, including having fewer businesses, less employers and being located away from larger job markets. Less than two per cent of Australian businesses are located in remote areas, and many people are unable to relocate to areas with more work opportunities for ‘cultural, family and financial reasons’. Many people in remote areas have the ‘skills and experience needed obtain long-term employment’ but remain underemployed or unemployed.
1.8
In introducing the bill, the Minister recognised the ‘lack of employment opportunities that people, including Indigenous Australians, face in some of the most remote parts of Australia’. The Minister highlighted the need for collaboration with remote communities on the design of the Remote Engagement Program (REP):
Achieving sustainable change in remote communities can only be done by working together, including by listening to Indigenous experience and expertise to develop a new approach. Working in partnership to pilot innovative approaches, learn and review, and develop the new program will be key to our future shared success.
1.9
The Minister also stated that the government had heard stakeholders’ views on the current Remote Employment Program and acknowledged ‘remote communities want changes so that future employment services better match place based economic circumstances and labour market opportunities’.
Community Development Program
1.10
The Community Development Program (CDP) is Australia’s current remote employment and community development service which was introduced on 1 June 2015 to support:
…job seekers in remote Australia to build skills, address barriers to employment and contribute to their communities through a range of flexible activities.
1.11
Approximately 40 000 Australians participate in the CDP. The CDP operates across 60 remote regions, and in over 1000 communities, that have ‘weak labour markets’ which makes it hard for job seekers to find work and develop skills. In some CDP communities there are ‘fewer than 20 residents’.
1.12
While the CDP is not specific to Aboriginal and Torres Strait Islander people, a high proportion of CDP participants identify as Indigenous Australians. In October 2017, over 80 per cent of the then approximately 33 000 CDP job seekers identified as Aboriginal and Torres Strait Islander people, and 65 per cent of CDP providers were Indigenous organisations.
1.13
Under the CDP, a person becomes a ‘declared program participant’ if they have claimed or are receiving a relevant payment and are serviced by a CDP provider. CDP participants are bound by mutual obligation requirements (MORs), which include:
attending appointments and interviews;
meeting job search requirements;
accepting suitable paid work when offered; and
not voluntarily leaving suitable employment.
1.14
For CDP participants engaged in work for the dole activities, it was previously required that they engage in 20 hours’ activity per week. CDP participants who fail to comply with MORs face penalties, including, in certain circumstances, having their income support payment withheld. As part of the 2021−22 Budget, MORs for the CDP were modified to make CDP activities voluntary for participants, while retaining the abovementioned MORs.
2021−22 Budget update
1.15
On 11 May 2021, the government announced that its 2021−22 Budget would include reforms to support:
…Indigenous Australians into quality and long-lasting jobs, strengthening Indigenous businesses and community organisations, and backing its commitment to transform the way governments work with Aboriginal and Torres Strait Islander people.
1.16
Central to the Budget announcement was the introduction of the REP to ‘ensure employment services fit the changing job market in remote Australia and meet the unique needs of job seekers in remote communities’. The Budget confirmed that the REP would replace the CDP in 2023, and provide funding for four REP pilots to commence in 2021.
Purpose of the bill
…provide a framework for piloting new approaches to delivering employment services in remote communities ahead of implementing the Government’s Budget announcement that the Community Development Program (CDP) will be replaced in 2023.
1.18
It is intended that the bill will build on Priority Reform One of the National Agreement on Closing the Gap by creating ‘stronger partnership arrangements and joint decision making authority’ between Indigenous Australians and the Government.
1.19
The National Indigenous Australians Agency (NIAA) advised the committee of the complex employment challenges facing remote communities, and noted that communities wanted to co-design an employment service for remote areas, in partnership with the Government. The NIAA continued that the bill would enable:
… the piloting of new approaches to delivering employment services in remote communities. The Bill is not pre-empting the outcomes of a co-design process, but instead is providing one building block that communities can choose to use as they design their program with Government. Other building blocks will include access to non vocational support, like family or mental health services; vocational skills and training; support in finding jobs and apprenticeships.
1.20
If enacted, the bill will support the establishment of the REP to build the ‘skills and vocational capabilities of people in remote communities’.
Co-design and pilot programs
1.21
Pilots of the program will be co-designed with remote communities. The Explanatory Memorandum (EM) to the bill outlines the government’s commitment to co-designing the pilots with communities, viewing this process as critical to the success of the pilots. The EM states that:
The Government will take the time to work together and listen to communities in the pilot sites about what they think could work in their community in relation to the amount of payment to be provided, the hours of engagement to be undertaken in return and what eligible job seekers are required to do to continue to receive the payment. This will also better allow for adjustments during the pilots as lessons are learned.
1.22
Mr Ryan Bulman, Group Manager of Economic Policy and Programs Group at the NIAA, advised that the structure of the bill was unique, in that can apply flexibly in a pilot area. Mr Bulman made clear that:
Having an option for pilots, as we co-design, to fill in legislative instruments to work with us on the next step of the bill. If parliament passes this bill, it will be quite a unique framework for co-design groups to put in place arrangements for their regions to test and trial only up until 2024 into the social security system. I don't think we've ever had that, as far as I can recall, in our history.
1.23
The EM also notes the importance of trialling different approaches in different sites. Lessons from pilot communities will then inform the design of the REP and legislation will be revisited prior to a national rollout of the program in 2023. The scheme will initially run under a voluntary model for two years.
Payment
1.24
The bill provides for a new, supplementary payment which will be available for eligible jobs seekers in pilot communities who engage in an REP placement. It is estimated that around 200 eligible job seekers across the pilot sites will volunteer for the REP payment. Placements will be in roles that provide participants a pathway to employment and that deliver ‘public goods or services to benefit local communities’ (for example, a teacher’s aide or park ranger).
1.25
The NIAA advised that eligible job seekers will voluntarily participate in a role in government services or community organisations for between 15 and 18 hours per week, to build important skills and experience. Participants will be able to voluntarily leave the REP at any time.
1.26
The EM advises that:
To give effect to the Government’s commitment to work in partnership with Indigenous communities, the Bill sets out the basic parameters of the payment, with other elements such as the qualification criteria and the exact rate of payment to be set out in detail in legislative instruments and policy guidance. These legislative instruments will be informed by the outcomes of a co-design process in the pilot sites.
1.27
The new payment would be paid at a fixed fortnightly rate and would be additional to certain primary income support payments and other supplements for eligible job seekers. The new payment would not be subject to the income test in the Social Security Act 1991 (Social Security Act).
1.28
Specific details provided for by Parts 1 and 2 of the bill include, that it will:
establish the new REP payment, of between $100 and $190 per fortnight, for a maximum continuous period of 104 weeks;
establish the high-level qualifying criteria for the payment;
establish that participation in the REP is voluntary, and that a person can opt to leave a program placement; and
enable the Minister to make legislative instruments relating to the program’s qualification criteria and the program payment.
1.29
The EM explains that the REP payment will be time-limited under the bill’s provisions, meaning that the legislation will need to be revisited ahead of the national roll out of the new Remote Engagement Program. This will ensure continuing Parliamentary scrutiny. To this end, the bill provides that the REP payment will not be payable after 30 June 2024, which allows sufficient time to test and trial the approach.
1.30
The bill also includes provisions that remove obsolete provisions in the Social Security Act relating to former jobs programs.
1.31
The policy intent and monetary benefit of the REP is illustrated in Appendix 1.
Discussion paper
1.32
On 26 August 2021, the NIAA published a discussion paper that provided the first opportunity for consultation on the REP, and called for submissions by 30 November 2021.
1.33
The paper identified key issues in relation to the REP’s design for discussion:
program placements―including the types of placements that assist participants gain ‘in-demand skills’ in their local communities and how placements can be designed to encourage participation;
rob-ready participants―including how to assist job-ready participants in the jobs application process and assist applicants to succeed in the workplace;
vocational training―including how vocational training can best support participants to obtain work and opportunities for providers to increase their cultural awareness; and
MORs―including effective approaches for supporting participants to meet their MORs, and ways that providers can take to assist participants to meet MORs.
Consultation
1.34
The discussion paper noted that a second phase of consultation on the REP –focusing on the early learnings from the program pilots – was proposed to be conducted from late-2021 to April 2022. A third, final phase of consultation, focusing on communicating the details of the REP’s implementation, is anticipated to be conducted between July 2022 and the commencement of the program in 2023.
Key provisions of the bill
1.35
The bill’s provisions are presented in one schedule which is divided into four parts. Parts 1 and 2 of the bill make provisions for the REP framework and Parts 3 and 4 remove provisions relating to discontinued jobs programs.
Part 1―Main amendments relating to the Remote Engagement Program
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The bill’s main provisions are contained in Part 1 which proposes amendments to the Social Security Act and the Social Security (Administration) Act 1999.
Amendments to the Social Security Act
Item 1 – definitions
1.37
Item 1 of the bill inserts definitions relating to the new, supplementary REP payment (i.e. the Remote Engagement Placement payment), as follows:
qualifying remote income support payment―defined as the payments listed at proposed section 661B of the bill;
remote engagement placement―defined as part of the program determined by the Minister by legislative instrument (proposed subsection 661A(2)). For a participant to receive an REP payment, the Secretary ‘must be satisfied that the person has agreed to participate, and is participating for at least 15 hours per week’ in a placement;
remote engagement program―meaning an arrangement determined by the Minister by legislative instrument (proposed subsection 661A(2)); and
remote engagement program provider―meaning a person or organisation in an agreement with the government, or receives government funding, to deliver the REP.
Item 2 – specified provision
1.38
Item 2 provides that the REP payment is deemed a ‘specified provision’ to extend the period that a person may receive a social security payment. This provision ensures a participant’s entitlement to an REP payment is not impacted by changes in their employment income for a period of up to 12 weeks.
Items 3 to 6 – notes on income support payments
1.39
Items 3 to 6 insert notes at the end of relevant sections of the Social Security Act to state that a person in receipt of a certain income support payment, and also in receipt of employment services from an REP provider, may qualify for the REP payment.
Item 7 – Remote Engagement Program payments
1.40
Item 7 makes provisions for the REP payment in three divisions:
Division 1―provides for the REP payment qualification criteria (Subdivision A) and the payability provisions (Subdivision B);
Division 2―provides for the rate of the REP payment; and
Division 3―provides for miscellaneous matters.
Qualification criteria
1.41
Division 1, Subdivision A provides that a person qualifies for the REP payment if all of the following criteria are satisfied:
(a)
the person is receiving a qualifying income support payment;
(b)
the person is receiving employment services from an REP provider;
(c)
the Secretary is satisfied the person has agreed to participate, and is participating in an REP placement for at least 15 hours per week; and
(d)
the person satisfies any criteria determined by the Minister by legislative instrument (per proposed subsection 661A(2)).
Qualifying income support payments
1.42
Income support payments that qualify a person to receive the REP payment, i.e. the qualifying remote income support payment, are the:
Disability Support Pension;
Youth Allowance (excluding recipients in full time study);
any other income support payments as determined by the Minister by legislative instrument (per proposed subsection 661A(2)).
1.43
The bill provides that the inclusion of each qualifying income support payment in the REP is contingent on the existing participation requirements, and exemption provisions, of those payments in the Social Security Act. Participation in the REP will be limited to people who are able to work.
‘Payability’ of the Remote Engagement Program payment
1.44
Division 1, Subdivision B provides that an REP payment is not payable to a person:
in circumstances determined by the Minister by legislative instrument―to imbed ‘flexibility’ in the design of the REP;
who has received the payment for a continuous period of 104 weeks―to time limit the REP payment, as the payment ‘is not intended to be a long-term arrangement’; and
after 1 July 2024―to limit the timeframe of the pilots, inclusive of a one-year grace period ‘to accommodate any delay’ in the start of the REP.
Rate of the Remote Engagement Program payment
1.45
Division 2 provides that the Minister may determine, by legislative instrument, the fortnightly rate of the REP payment of an amount between $100 to $190. The Minister’s power to make such a determination is discretionary, and is intended to ‘allow flexibility’ in determining the rate of the REP payment. This is in response to feedback received during the community co-design process.
Miscellaneous matters
1.46
Division 3 makes consequential amendments to ensure that a person who undertakes an REP activity is not taken to be a worker or employee for the purpose of certain Commonwealth laws.
Amendments to the Social Security (Administration) Act 1999
Item 8 – Participants not required to make a claim
1.47
Item 8 provides that an REP participant is not required to make a claim for the REP payment. The REP payment will be paid in addition to a participant’s existing income support payment.
Part 2―Contingent amendments to the Remote Engagement Program payment
1.48
Item 9 makes a contingent amendment to give effect to the REP payments provisions proposed at Item 7. In the event that the Social Security Legislation Amendment (Streamlined Participation Requirements and Other Measures) Act 2021 (Streamlined Participation Act) commences before the bill, subsection 661B will repeal and substitute the qualifying remote income support table in Item 7.
Part 3―Main amendments relating to the CDEP scheme
1.49
Part 3 of the bill, containing items 11 to 54, proposes amendments to the Social Security Act, the Social Security (Administration) Act 1999 and the Aged Care Discrimination Act 2004 to repeal provisions relating to the former Community Development Employment Program (CDEP) and the Northern Territory CDEP transition payment. As the provisions of the CDEP are ‘spent’ they are required to be removed from the legislation to ‘avoid confusion over their status’
Part 4―Contingent amendments relation to the end of the CDEP scheme
1.50
Part 4 of the bill, containing items 55 to 57, make contingent amendments to the Social Security Act that will apply if part 3 of the bill is enacted prior to the Streamlined Participation Act.
Commencement dates
1.51
The proposed commencement dates for the bill are as follows:
Sections 1 to 3―will commence the day after the bill receives Royal Assent;
Schedule 1, Part 1―will commence on a day to be fixed by Proclamation, however if the provisions to do commence within a period six months after the bill receives Royal Assent then Schedule 1, Part 1 will commence the day after that period;
Schedule 1, Part 2―will commence immediately after the later of:
(a)
the commencement of Schedule 1, Part 1; or
(b)
the commencement of Schedule 1 to the Streamlined Participation Act. Note, the provisions in Schedule 1, Part 2 will not commence if Schedule 1 to the Streamlined Participation Act does not occur;
Schedule 1, Part 3―will commence the day after the bill receives Royal Assent; and
Schedule 1, Part 4―will commence at the same time as Schedule 1, Part 3 (i.e. the day after the bill receives Royal Assent). Note, the provisions of Schedule 1, Part 4 will not commence if Schedule 1 to the Streamlined Participation Act does not occur on or before the date the bill receives Royal Assent.
Financial implications
1.52
The EM states the cost of the measure ‘will be absorbed within the Indigenous Advancement Strategy.’
Human rights considerations
1.53
The Statement of Compatibility with Human Rights identifies that the following five human rights are engaged by the bill:
right to social security;
right to an adequate standard of living;
right of equality and non-discrimination; and
right of persons with disabilities to work on an equal basis with others.
1.54
The EM concluded that the bill is compatible with human rights as the bill promotes the rights it engages, and to the extent that any rights are limited those limitations are ‘reasonable, necessary and proportionate’.
Consideration by the Parliamentary Joint Committee on Human Rights
1.55
The committee received a submission from the Australian Human Rights Commission (AHRC), which drew attention to concerns it had previously raised in relation to the CDP, regarding the rights to social security, equality and non-discrimination.
1.56
The Parliamentary Joint Committee on Human Rights (PJCHR) reviewed the bill and drew its human rights concerns to the attention of the Minister and the Parliament. The key aspects of the review of the PJCHR are summarised as follows.
Potential promotion of human rights
1.57
To the extent that the bill introduces a new, supplementary social income support payment, and provides work-related opportunities for REP participants, the PJCHR considered that the bill may promote the rights to work, social security and adequate standard of living.
Rights potentially limited
1.58
The PJCHR also considered that the bill could limit human rights. The PJHCR noted the bill specifies certain income support payments as REP qualifying payments, and that the REP may therefore disproportionately impact people with certain protected attributes, such as people with disability. This engages the right to equality and non-discrimination and the PJHCR noted there may be a risk of discrimination if the REP lacks reasonable mechanisms to engage people that traditionally have difficultly accessing social security.
1.59
The PJHCR also considered it likely that the bill will have a disproportionate affect on Aboriginal and Torres Strait Islander people and noted the view of the former Special Rapporteur on the right of indigenous peoples that the CDP is ‘discriminatory’ towards Indigenous Australian job-seekers.
Assessment of potential limitations on human rights
1.60
The PJCHR observed that the bill’s objectives ‘may be capable of constituting legitimate objective for the purposes of human rights law’ but that it ‘must be demonstrated’ that a limitation on a right has a rational connection to the measure’s objective.
1.61
The PJCHR considered that, as many of bill’s detailed aspects will be determined by legislative instruments, it is not possible to conclude that the bill would be effective in achieving its objects, nor is it possible to conclude the bill ‘would permissibly limit’ certain human rights, such as the right to equality and non-discrimination.
Consideration by the Standing Committee for Scrutiny of Bills
1.62
The bill was considered by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) which made comment on the bill’s provision for significant matters to be addressed in delegated legislation.
1.63
The Scrutiny of Bills Committee noted that the bill provides for the following circumstances to be determined by the Minister by delegated legislation:
the qualification requirements for a person to receive the REP payment (proposed paragraph 661A(2)(c)); and
where an REP payment is not payable to a person (proposed section 661C).
1.64
While the EM provides explanations for the delegated legislation provisions, which were broadly based on providing flexibility in co-design of the REP, the Scrutiny of Bills Committee stated it has generally not considered ‘administrative flexibility’ as a sufficient justification for leaving significant matters to delegated legislation.
1.65
The Scrutiny of Bills Committee considered it was ‘unclear’ as to why high-level guidance on the qualifications requirements, and the circumstances where an REP payment is not payable, could not be included in primary legislation. The Committee also considered 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.
1.66
The Scrutiny of Bills Committee sought advice from the Minister regarding the delegated legislative provisions in the bill, however at the time of reporting a response from the Minister had not been received.