Bills Digest No.
77, 2020–21
PDF version [582KB]
Don Arthur and Matthew Thomas
Social Policy Section
24
June 2021
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 27
May 2021
House: House of
Representatives
Portfolio: Education,
Skills and Employment
Commencement: Schedules
1, 3, and 6 commence on the later of 1 July 2021 and the seventh day after
Royal Assent; Schedules 2, 4, 5, 7 and 9 commence the day after Royal
Assent; Schedule 8 commences on 1 July 2022; and Schedule 10 commences on the
later of the day after Royal Assent and 1 January 2022 (when Schedule 7
of the Social
Services Legislation Amendment (Welfare Reform) Act 2018 commences).
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at June 2021.
Purpose of
the Bill
The purpose of the Social Security Legislation Amendment
(Streamlined Participation Requirements and Other Measures) Bill 2021 (the
Bill) is to amend the Social Security Act
1991, the Social
Security (Administration) Act 1999 (the Administration Act) and
the Farm
Household Support Act 2014. The amendments have a number of purposes
including better aligning legislation with the planned administration of the
New Employment Services Model (NESM), removing redundant and outdated
provisions, and providing legislative authority for expenditure on employment
programs.
Structure of
the Bill
The Bill consists of 10 schedules:
| Schedule 1 |
Streamlined participation requirements |
| Schedule 2 |
Arrangements and grants relating to assisting persons to
obtain and maintain paid work |
| Schedule 3 |
Compliance with participation payment obligations |
| Schedule 4 |
Amounts not counted as income |
| Schedule 5 |
Approved programs of work for income support payment |
| Schedule 6 |
Activities that do not give rise to employment under
certain industrial relations legislation |
| Schedule 7 |
Youth allowance ordinary income free area |
| Schedule 8 |
Start day for jobseeker payment and youth allowance |
| Schedule 9 |
Repeals of spent provisions |
| Schedule 10 |
Contingent amendments |
Background
In early 2018, in the lead-up to the expiry of the jobactive
Deed in 2020, and in the face of increasing criticisms of the system, the
Australian Government appointed an independent Employment Services Expert
Advisory Panel to ‘help shape the future design of employment services in
Australia’.[1]
The Panel’s report found that Australia’s
employment services system was not meeting the needs of many job seekers and
employers and recommended that the employment services system be restructured
to focus on helping those job seekers who most need assistance.[2]
To this end, it proposed that job seekers
who are job-ready and digitally literate should no longer use the employment
services provider network. Instead, these job seekers would self-service, using
online employment services. The resources saved and employment services providers
freed up through many job seekers self-servicing would then be dedicated to
providing intensive, face-to-face services and support to disadvantaged job
seekers.[3]
As a part of the 2019–20 Budget, the Government provided
funding for a trial of new employment service arrangements, under which job-ready
job seekers would be able to access employment services online, with the savings
being realised through moving away from face-to-face delivery of employment
services being redirected towards increased support for disadvantaged job
seekers.[4]
The New Employment Services Model (NESM) arrangements were
to be tested in Adelaide’s southern suburbs and on the NSW Mid-North Coast from
1 July 2019 to 30 June 2022 ahead of the national rollout of the NESM
in July 2022.[5]
Information on the NESM is available from fact sheets on
the Department of Education, Skills and Employment website.[6]
A report of the evaluation of the trial has yet to be released.
It should be noted that the Government had already begun
trialling online employment services in 2018. Under the Online Employment
Services Trial (OEST) job-ready job seekers were able to enter into an
Employment Pathway Plan (EPP) and report their job search activity and
compliance with mutual obligation requirements online.[7]
The findings
of the trial have been made available on the Department of Education,
Skills and Employment website.[8]
In response to the COVID-19 pandemic and an associated increase
in demand for online employment services. these services have been rolled out
nationally, with many job seekers now accessing employment services and
fulfilling their mutual obligation requirements online.
According to the Explanatory Memorandum to the Bill, the
amendments to social security law that the Bill would enable are necessary ‘to
better support the new model of employment service and its objectives while
still maintaining the protections for job seekers that currently exist in
social security law’.[9]
Committee
consideration
Senate
Education and Employment Legislation Committee
The Bill was referred to the Senate Education and
Employment Legislation Committee for inquiry. The Committee reported on 18 June
2021, recommending that the Bill be passed.[10]
Labor and the Greens issued dissenting reports, which are discussed below under
‘Policy position of non-government parties’.[11]
The Committee’s report, a transcript of public hearings
and submissions to the inquiry are available at the inquiry
homepage.
Senate
Standing Committee for the Scrutiny of Bills
In its Scrutiny Digest 8 of 16 June 2021, the
Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) raised
a number of concerns about the Bill. These concerns included:
- instruments
not subject to parliamentary disallowance (determinations under proposed
section 40T of the Administration Act[12]
and proposed subsections 8(8AC) and 40(3)) of the Social
Security Act[13]
- the
broad discretionary power for expenditure granted to the Secretary under proposed
sections 1062A and 1062B of the Social Security Act.[14]
The discretionary power includes grants to states and
territories authorised under section 96 of the Constitution. The Committee
suggested amending the Bill to include at least high-level guidance as to the
terms and conditions on which arrangements or grants can be made and including
a requirement that written agreements with states and territories made under section
1062A are tabled in Parliament and published on the internet.[15]
Policy position of non-government parties
In their dissenting report in the report of the Senate
Education and Employment Legislation Committee inquiry into the Bill, Labor
Senators raised a number of criticisms of the Bill and agreed with stakeholders
who called for more time for consultations. Labor Senators recommended:
- Schedule
8 of the Bill be opposed, noting it will leave many job seekers financially
worse off and
- the
Government engage in further consultation with both the Labor Opposition and
stakeholders before the other provisions proceed.[16]
Australian Greens Senators oppose the Bill and have made a
number of recommendations about employment services policy.[17]
Position of
major interest groups
Fifteen organisations made submissions to the Senate
Education and Employment Legislation Committee.[18]
The initial closing date for submissions was 4 June 2021, however the Committee
later extended the deadline to 9 June 2021.[19]
Many of the submissions were brief due to the short timeframe.
Interest groups raised a number of concerns including the
lack of time to consider the Bill, the changes to the start day for recipients
of jobseeker payment and youth allowance, and the discretionary power given to
the Employment Secretary. Other concerns are discussed under the relevant
schedules.
Lack of time
to consider the Bill
Many of the submissions raised concerns about a lack of
time to consider the amendments proposed in the Bill. For example, the
Australian Council of Social Service recommended that the Government for
consideration of the Bill by at least two months.[20]
Start day
for jobseeker payment and youth allowance
A number of submissions raised concerns about changes to
the ‘start day’ for jobseeker payment and youth allowance in Schedule 8. For
example, the National Employment Services Association (NESA) opposed the
measure, arguing:
… under the proposed arrangements job seekers in online
services would experience a change in their payment start date if they took
time to consider the appropriateness of their Job Plan before accepting it; and
as such it is considered that the proposed provision potentially creates
inequity.[21]
Secretary’s
discretionary power
A number of submissions raised concerns about the level of
discretion the amendments gave to the Employment Secretary. For example, in its
submission, Anglicare Australia wrote:
Anglicare Australia’s understanding is that this will give
more discretion to the Employment Department and Employment Secretary. It may
also give more discretion to employment service providers. This discretion is
likely to lead to fewer protections, and greater confusion about people’s
rights within the system.[22]
Financial
implications
The Government expects the measure in Schedule 8 to save
$191.6 million over the forward estimates. According to the Explanatory
Memorandum, none of the other amendments have any financial impact.[23]
The measure in Schedule 8 affects Jobseeker Payment and
Youth Allowance (other) claimants who receive employment services online.[24]
It makes savings by delaying the day for which the person’s payment becomes
payable. Instead of being payable at the date the person claims the payment, it
will be payable at the date they enter into an online EPP.
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.[25]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights
considered the Bill in its Human Rights Scrutiny Report 7 of 2021. The
Committee has not formed a concluded view on the human rights implications of
this Bill, and has sought the Minister's advice on a number of matters.[26]
At the time of publishing this Digest, the Minister’s
response had not been received by the Committee.[27]
Key issues
and provisions
Schedule 1–Streamlined participation requirements
Schedule 1 primarily gives effect to aspects of the New
Employment Services Model (NESM) which is to be rolled out nationally from 1
July 2022.
Current
participation requirements
Under the Social Security Act recipients of
participation payments must satisfy the activity test as a condition of their
payment, in addition to meeting other participation requirements.[28]
Collectively, these participation requirements are typically referred to as
mutual obligation requirements.[29]
To meet the activity test a person must be actively
seeking and willing to undertake paid work that is suitable for that person.
The general job search activity test applies at all times unless other specific
activities are required or the person is exempt from the activity test (if they
are sick, injured or unable to meet their activity test requirements because of
a personal crisis).
In most instances, job seekers have a specific requirement
to demonstrate that they are looking for work—for example, submitting a
fortnightly job search report that details contacts with prospective employers.
Requirements such as these are included in a job seeker’s EPP, along with other
activities that are deemed necessary to help them gain employment.[30]
Under the Social Security Act, the Secretary may
require a person to enter into an EPP, with different terms applying to the
EPPs associated with each participation payment type.
Currently, activity tested job seekers negotiate an
individually tailored EPP—typically with their employment services provider,
but potentially with Services Australia which has also been delegated with
relevant powers under the Social Security Act.
The EPP identifies the mix of vocational and
non-vocational activities that job seekers are likely to need to undertake to
gain employment. The EPP incorporates education, training, non-vocational
assistance, work experience, job search requirements and other support that is
based on the needs of the job seeker. A number of the requirements that are not
permitted to be included in an EPP are specified in the Social Security
(Employment Pathway Plan Requirements) Determination 2015.
Activities that are included in the EPP must not place
unreasonable demands on job seekers, having regard to their individual
circumstances. Job seekers are given two business days in which to consider the
terms of their EPP before agreeing to it.
While some of the activities that are included in a job
seeker’s EPP—such as attendance at various forms of assessment and assistance
and at specified training and work experience—may be optional, others will be
compulsory. As a result, job seekers are for the most part required to comply
not only with the activity test, but also with an EPP.
If a job seeker refuses to enter into an EPP then this may
result in compliance action, and, ultimately, the cancellation of their payment.
If a job seeker fails to comply with the compulsory terms of an EPP, this may
similarly result in compliance action.
Employment services providers are required to review a job
seeker’s EPP and to update it when there is a change in their circumstances.[31]
The activity
test—background
Following a substantial review of Australia’s social
security system conducted by Professor Bettina Cass from 1986 to 1988, the
Hawke Government introduced various reforms to the system, one of which was the
activity test. As Carol Ey notes, the activity test was ‘first introduced for
the young unemployed when Job Search Allowance was introduced in 1988’ and then
‘extended to all unemployment beneficiaries when Job Search and Newstart
Allowances were introduced in 1991’.[32]
The activity test effectively involved an extension of the
work test, which had been applied to unemployment benefit recipients since the
introduction of the unemployment benefit in 1944. Under the work test an
applicant for unemployment benefit ‘was required to show that he was capable of
undertaking and willing to undertake “suitable” work and had taken reasonable
steps to obtain such work’.[33]
The activity test imposed further requirements on the
beneficiary ‘to participate in programs to improve ‘job readiness’ and
subsidised employment programs’.[34]
This was in line with the Government’s general shift towards active labour
market policies—that is, policies that integrate more closely income support
arrangements and training and employment assistance.
Amendments
For the most part, the provisions in Schedule 1:
- remove
from the Social Security Act references to the activity test
- remove
from the Social Security Act references to payment-specific EPPs and
requirements associated with them, replacing them with references to the single
consolidated EPP being inserted into the Administration Act by the Bill
and
- insert
into the Administration Act requirements for a new, consolidated EPP.
The most substantive of the changes relate to the new EPP
arrangements, outlined below.
Item 123 inserts new Division 2A—Employment
pathway plans into Part 3 of the Administration Act. This Division
sets out requirements in relation to EPPs that are currently set out in
provisions in the Social Security Act and contained in Guidelines.
For the most part, the Division replicates and consolidates existing provisions
in the Social Security Act.
Proposed section 40A provides for the Secretary to
require a job seeker to enter into an EPP if they do not already have an EPP in
place and are either receiving or have made a claim for a participation payment
(proposed subsection 40A(1)). Where a job seeker does have an EPP in
place proposed subsection 40A(2) provides that the Secretary may require
the job seeker to enter into an alternative plan. Proposed subsection 40A(3)
provides that the Secretary must notify a person who is required to enter into
an EPP of the requirement, and give them the option of entering into a plan
under proposed section 40D (using
traditional means, that is, meeting and entering into a plan face-to-face with
an employment services provider) or proposed section 40E (using
streamlined arrangements, that is, using a digital self-service interface).
Proposed section 40B provides for the Secretary to
use technological processes in relation to job seekers entering into and
varying EPPs (both job seekers who are using traditional means to enter into
EPPs and those using streamlined processes).
Proposed section 40C provides for the Secretary to
administer a questionnaire, the purpose of which is to elicit from the job
seeker information that would allow the Secretary to establish their degree of disadvantage
and whether they are able to enter into an EPP using streamlined arrangements
(under proposed section 40E) or should do so in the traditional
manner—that is, meeting with an employment services provider (under proposed
section 40D). Some of the matters that are likely to be dealt with in the
questionnaire are set out at proposed section 40F.
The Job
Seeker Classification Instrument (JSCI) is currently used for the purposes
of determining job seekers’ barriers to employment, with the Job Seeker Snapshot
being the online version of the JSCI.[35]
If job seekers are able to fill out the Job Seeker Snapshot without any
guidance or assistance this may result in some being inappropriately directed
towards streamlined servicing arrangements, rather than Enhanced Services. The
National Employment Services Association (NESA) has expressed some concerns
along these lines, arguing that the JSCI and Job Seeker Snapshot are not validated
assessments of job readiness or independent job search capability, but rather
of relative disadvantage. As such, NESA has indicated that it ‘does not
consider that the assessment process is an acceptable assurance that job
seekers with inadequate capacity will not inadvertently be assigned to Online
Employment Services’.[36]
In Per Capita’s view:
Assessments of ‘job readiness’ should be made by a qualified
vocational counsellor, employed directly by the Commonwealth, to ensure that
people are not inappropriately ‘streamed’ into online-only service provision
when they are in need of more personalised support.[37]
Proposed section 40D provides for job seekers to
enter into an EPP using traditional face-to-face means (for job seekers in
receipt of Enhanced Services). Proposed section 40E provides for job
seekers who are in receipt of Digital Services to potentially self-service
entirely online—that is, not have to meet with an employment services provider
to develop and agree to an EPP.
Proposed section 40D provides for EPPs to be
developed by the Secretary. So long as the job seeker has communicated with the
Secretary one or more times in relation to the EPP that has been developed for
them, then they are able to accept the plan.
Currently, at points in the Social Security Act where
the requirement to enter into an EPP are stipulated, reference is made to EPPs
being ‘negotiated’.[38]
In proposed section 40D the term has been deliberately excluded.
According to the Explanatory Memorandum, this is to ensure that job seekers do
not ‘misunderstand the degree of latitude they have in determining their
employment pathway plan requirements’.[39]
While job seekers may discuss with delegates the content of their EPPs,
ultimately, the Secretary is empowered to ‘dictate, approve or disapprove’ the
EPP.[40]
Proposed subsection 40D(2) provides that an EPP
must contain one or more compulsory requirements. This requirement mirrors
current arrangements.[41]
Under proposed subsection 40D(4) the requirements
in a job seeker’s EPP must be approved by the Secretary (or their delegate) and
not through technological processes. This is to ensure that the EPP process
cannot be entirely automated for job seekers in Enhanced Services—for these job
seekers, human scrutiny must be involved.
Proposed subsection 40D(5) provides that the
Secretary must not approve requirements that are not suitable for the job
seeker.[42]
While the Bill does not contain any provisions specifically related to what may
be considered to be reasonable hours of activities, it is to be assumed that
this is covered under this proposed subsection.
Proposed subsection 40E sets out the streamlined
processes under which job seekers will be able to enter into an EPP. For job
seekers self-servicing online there is no requirement for a human delegate to
approve the content of an EPP. However, should a job seeker choose not to
accept an EPP that is generated online, they may enter into an EPP using
traditional means (Note 1 to proposed subsection 40E(1)). Further, if a
job seeker has entered into an EPP online which they do not want to accept then
they may enter into an EPP using traditional means (that is, under proposed
section 40D) (proposed subsection 40E(2)). In its submission to the
inquiry into the Bill the Antipoverty Centre emphasised that, in its view:
Information about the right to support from a ‘human
delegate’ within the department must be provided at multiple points throughout
the process, both before the person enters online services, during preparation
of their job plan and both before and after they have signed it. The option to
discuss a job plan with a person or to have it reviewed is insufficient on its
own—people must be regularly informed of their rights.[43]
Under proposed subsection 40E(1) job seekers are
required to be provided with information to inform them of the matters they
should consider in deciding whether to accept the EPP. According to the
Explanatory Memorandum, this could include ‘links to sites with further
information or the telephone number of the contact centre’.[44]
It is questionable whether or not this constitutes sufficient guidance for job
seekers who may not be aware of the possible range of options and pathways to
employment available to them. Under the current guidelines, job seekers may
request that a support person be brought with them to an appointment with their
employment services provider to review their EPP.
Proposed section 40G sets out examples of
requirements that may be included in EPPs.[45]
Other requirements may be included in EPPs (subsection 40G(5)), subject
to the limits on requirements set out at proposed Subdivision B. The
Australian Council of Social Service (ACOSS) has argued that the primary
legislation and related legislative instruments offer limited guidance on what
should be included in an EPP, beyond the job search and suitable work
provisions.[46]
It maintains that while proposed subsection 40G(2) goes some way towards
defining the range of activities that may be included in an EPP, proposed subsection
40G(5) provides for a range of other unspecified requirements to be
included. In ACOSS’s view, the scope of requirements should be reasonable and
‘limited to activities that improve people’s employment prospects’.[47]
The limits on requirements provide that EPPs must not
contain requirements to undertake unsuitable paid work (proposed section 40H),
as is currently the case under the activity test requirements at subsection
601(2A) of the Social Security Act, with the circumstances in which paid
work is unsuitable set out at proposed Division 2B of Part 3 of the Administration
Act, at item 123 of Schedule 1 to the Bill. The
unsuitable work provisions—discussed below—are largely unchanged.
Proposed section 40J provides that EPPs must not
contain requirements to participate in an approved program of work (such as
Work for the Dole or the National Work Experience Program) where specified
conditions are met. While these conditions differ for recipients of Parenting
Payment, Youth Allowance, Jobseeker payment and Special Benefit payment, the
main conditions are that an EPP cannot require a job seeker to participate in
an approved program of work if they are undertaking other approved activities,
have their income support payment reduced as a result of their participation in
paid employment, or are not eligible to be required to participate in Work for
the Dole due to their age.
As the Explanatory Memorandum notes, the conditions at proposed
subsection 40J are similar to those currently contained in the Social
Security Act, with the exception of the removal of a condition that a job
seeker cannot be compelled to participate in an approved program of work where
the Secretary determines that the work would either aggravate a medical
condition or constitute a risk to the job seeker’s health or safety.[48]
Such a condition is redundant given that EPPs are not able to contain requirements
that are unsuitable for a person (under proposed subsection 40D(5)).
The Bill also does not carry over provisions that enable
the Secretary to revoke the requirement for a job seeker to participate in an
approved program of work where their circumstances change such that they are no
longer required to participate in such a program. Proposed section 40V
provides for the Secretary to vary an EPP either on the Secretary’s own
initiative, or on the request of the job seeker.
Under proposed section 40K the Secretary is
required to specify by legislative instrument other requirements that EPPs must
not contain. This is consistent with current arrangements.
Proposed Subdivision C of new Division 2A of Part 3
of the Administration Act specifies the circumstances under which job
seekers may be exempted from EPP requirements. Under the Social Security Act
job seekers who are in receipt of participation payments and required to meet
mutual obligation requirements may be exempted from these requirements for a
number of specific reasons, but also in instances where they are experiencing
circumstances that are beyond their control. These exemptions are set out in
relation to each participation payment, and in relation to the activity test
and EPPs throughout the Social Security Act. The Explanatory Memorandum
notes that currently there is:
… duplication of the same provision across the four payments;
provisions which apply to only one or two of the participation payments without
a good reason for not applying to all four payments; different provisions
dealing with essentially the same subject matter in different ways; overly
lengthy provisions; and provisions which provide an exemption from the activity
test but not from employment pathway plan requirements.[49]
Proposed section 40L consolidates what are
currently described as special circumstances provisions.[50]
It provides for the Secretary to make a determination that a job seeker is not
required to satisfy the requirements of their EPP if the Secretary is satisfied
that the job seeker is subject to circumstances that are beyond their control
and that make it unreasonable to expect them to comply with their EPP
requirements. Examples of relevant circumstances—which include, among other
things, experiencing an emergency, disaster or public health crisis, such as
the COVID-19 pandemic—are included at proposed subsection 40L(5).
With the removal of references to the activity test from
the Social Security Act, exemptions are to be from all requirements
contained in a job seeker’s EPP (that is, job search requirements and all other
participation requirements).
As is currently the case, job seekers who are experiencing
circumstances that are beyond their control but wholly or predominantly
attributable to their misuse of alcohol or another drug will not be exempted
from their EPP requirements unless they are declared program participants—that
is, participating in the Community Development Program.[51]
Special circumstances exemptions are currently time
limited (generally, not to exceed 13 weeks)[52]
but under proposed subsection 40L(6) the Secretary may revoke a
determination when he or she is ‘satisfied in all the circumstances that it is
no longer appropriate for the determination to remain in effect’.
Proposed section 40L also contains a catch-all
provision (proposed subsection 40L(3)) that allows for the Secretary to
make a determination that a job seeker should not be required to satisfy their
EPP requirements if the Secretary is ‘satisfied in all the circumstances’ that
the job seeker should not be required to do so.
While the Bill includes provisions that detail specific
circumstances under which job seekers may be excused from their EPP
requirements, proposed subsection 40L(7) provides that these provisions
do not limit subsection 40L and the Secretary’s ability to make a determination
that a job seeker may be exempted from their EPP requirements due to
circumstances beyond their control. Under proposed subsection 40L(6) the
Secretary may end a job seeker’s exemption from EPP requirements where he or
she is satisfied that it is no longer appropriate for the determination to
remain in effect.
Proposed section 40L effectively expands the
Secretary’s discretionary powers. In its submission to the inquiry into the
Bill, the National Employment Services Association (NESA) expressed some
reservations about this expansion, stating:
NESA holds concerns that without some substance to understand
the intent which could include definitions or principles that there is a significant
risk of inconsistency and inequity. In addition without some indication of how
this protection may be called upon we have no indication if the process itself
may be too difficult and thus will not be of no protection or remedy. To
illustrate, an inability to purchase data to access OES [online employment
services] and accept a Job Plan may be attributed to the individual’s budgetary
decisions and therefore in their control. For example, it may be deemed they
could have gone to Services Australia, McDonald's or the library to use
computers/WiFi. In such a case, will the person have to prove they had
insufficient funds? In NESA’s experience when such matters are not well
outlined the outcome of processes are often dependent on the agency of the individual
and their capacity to advocate for themselves.[53]
Proposed sections 40M to 40T set out specific
circumstances in which job seekers may be exempt from their EPP requirements. Proposed
section 40M concerns exemptions relating to the death of a job seeker’s
partner. Job seekers may currently be exempted from activity test requirements
or, for Parenting Payment recipients, participation requirements, following the
death of their partner. Proposed section 40M essentially replicates and
consolidates the relevant current provisions.
Currently a Parenting Payment recipient may be exempted
from EPP requirements where the Secretary is satisfied that they have been
subjected to domestic violence in the previous 26 weeks and makes a
determination to this effect.[54]
The same situation holds for Youth Allowance, Jobseeker Payment or Special
Benefit recipients where they are the principal carer of one or more children.[55]
The Secretary may also grant an exemption where ‘there are special
circumstances relating to the person’s family that make it appropriate to make
the determination’. The period of exemption must be the lesser of a period of
16 weeks or a period that the Secretary considers to be appropriate but may be
either followed by further periods or ended earlier at the Secretary’s
discretion.
Under proposed section 40N the provisions
concerning exemptions relating to domestic violence have been changed and
simplified.
The section provides that the Secretary must, rather than may,
grant an exemption where he or she is satisfied that a job seeker has been
subjected to domestic violence in the previous 26 weeks. The Secretary no
longer has scope—under this section—to grant an exemption in the case of
special circumstances relating to the job seeker’s family. Such circumstances
may or may not result in an exemption being granted under proposed section
40L.
The proposed section also no longer includes a specific
timeframe for the period of exemption. This will be at the discretion of the
Secretary.
Job seekers with caring responsibilities may currently be
exempted from participation, activity test and EPP requirements. Proposed
section 40P provides for exemptions from EEP requirements due to caring
responsibilities in substantively similar terms.
Pregnant women and women who give birth to a child are
currently granted an exemption from participation requirements. In the case of
pregnant women, this is for the period that starts six weeks before the
expected date of confinement and ends on the day on which the woman gives birth
to the child (whether or not the child is born alive). The post-natal exemption
applies for six weeks from the day that the woman has given birth. [56] These exemptions
are replicated under proposed section 40Q.
Job seekers who are aged 55 and over may currently be
granted an exemption from participation, activity test and EPP requirements so
long as they are participating in approved voluntary work or a combination of
paid and voluntary work for a specified period.[57]
Proposed section 40R duplicates these exemptions in relation to EPP
requirements.
Currently, Jobseeker Payment recipients may be exempted
from activity rest requirements if they are undertaking a rehabilitation
program that is intended to enhance their ability to work.[58]
Proposed subsection 40S replicates the existing provisions in the Social
Security Act.
Proposed section 40T provides for the Secretary to
make a determination specifying a class of persons that may be exempt from EPP
requirements due to exceptional circumstances, such as an emergency, disaster
or public health crisis. Details of the class of persons and exceptional
circumstances must be published on the Employment Department’s website, as must
details of the revocation of the exemption.
Proposed section 40V provides for the variation,
cancellation and review of EPPs in broadly similar terms to existing provisions
under the Social Security Act.[59]
Whereas currently the Social Security Act specifies
that an EPP may be varied in negotiation with the job seeker, an EPP may, under
proposed changed arrangements, be varied after discussion with the job seeker.
The stated reasons for the shift from negotiation to discussion in relation to
EPPs are outlined above. The proposed section also provides that the Secretary
must make a decision on whether or not the plan is to be varied in response to
a job seeker’s request and notify the job seeker of the variation or refusal to
vary the plan.
The St Vincent de Paul Society has expressed some concerns
with regard to the absence of specified timeframes for the review of
EPP-related decisions in the Bill. The Bill would provide for job seekers who
are self-servicing and dissatisfied with their EPP to vary it online and to
have decisions about their plan reviewed by the Digital Services Contact
Centre, then, if necessary, by an authorised review officer or the
Administrative Appeals Tribunal or a court. However, until such time as the
review process is complete, the St Vincent de Paul Society observes that the
job seeker’s existing approved EPP will remain in place. As it sees it ‘this is
unsatisfactory mainly because a plan that presents issues for a job seeker is
likely to increase the risk of non-compliance and subsequent breaching’.[60]
The Social Security Act currently specifies a range
of circumstances in which particular paid work is unsuitable for job seekers.[61]
Broadly speaking, proposed section 40X reproduces the existing
provisions. Proposed subsection 40X(6) clarifies that paid work is not unsuitable
on the grounds that it is not the job seeker’s preferred type of work,
commensurate with their qualifications or remunerated in line with a job
seeker’s wishes or expectations. This is in line with current rules and
practice, which require that a job seeker should take any paid work that is
offered to them, as long as it is not unsuitable in the terms outlined in the Social
Security Act.[62]
Schedule 2— Arrangements and grants relating to assisting
persons to obtain and maintain paid work
Schedule 2 amends the Social Security Act to provide
a legislative basis for Australian Government spending on employment services.
Currently the Government relies on the Financial Framework
(Supplementary Powers) Regulations 1997 for legislative authority.
In a Committee hearing on the Bill, the Department of
Social Services explained the rationale for the schedule:
Currently we have a somewhat cumbersome process whereby, if
there's a need for a new program—let's just say there's a large-scale
redundancy or there's a cyclone or some other natural disaster—we have to go
through a process of making a regulation in the financial supplementary powers
regulations, which are the responsibility of the Minister for Finance. There
are a series of steps that have to be followed in order to make that
regulation, to ensure there's legislative authority for the expenditure on that
program. What schedule 2 does is to make clear that expenditure in categories
of employment programs has that legislative authority. In the unlikely event
that there is a program that's not covered by those general categories, then
there's an instrument-making power, which would sit within this portfolio
rather than the finance portfolio, and would allow speedier implementation of
such programs.[63]
The use of the Financial Framework (Supplementary Powers)
Regulations 1997 to provide legislative authority for spending on employment
services and other programs is relatively recent. Prior to 2012 the Australian
Government assumed that it could develop and administer spending programs
without the need for legislative authority.[64]
This assumption was overturned by the High Court’s decision in Williams v
Commonwealth (No 1).[65]
Proposed section 1062A introduces a list of
services and activities in relation to which the Employment Secretary may, on
behalf of the Commonwealth, make, vary or administer a grant of financial
assistance. This list also includes the authority to fund additional activities
by making an instrument (paragraph 1062A(1)(l)).
Proposed section 1062D requires the Employment
Secretary to include information about activities funded under section 1062A in
the Department’s annual report.
Schedule
3—Compliance with participation payment obligations
Division 3AA in Part 3 of the Administration Act
contains the compliance framework which applies to recipients of participation
payments other than declared program participants (namely job seekers
participating in the Community Development Program).
There are three categories of compliance failure under the
Administration Act, namely, mutual obligation failures, work refusal
failures and unemployment failures.
A person who is receiving a participation payment commits
a mutual obligation failure where they fail to comply with a range of
obligations, including things like attending appointments, entering into an
EPP, and undertaking adequate job search efforts.[66]
A job seeker commits a work refusal failure where they refuse or fail to accept
an offer of suitable employment.[67]
A job seeker commits an unemployment failure where they become unemployed as a
result of a voluntary act or misconduct.[68]
If the voluntary act is found to have been reasonable, then a failure is not
applied.[69]
Currently, if the Secretary determines that a job seeker
has committed a mutual obligation failure or a work refusal failure then he or
she must suspend the job seeker’s payment until they comply with a
reconnection requirement (usually attending a rescheduled appointment or
resuming a required activity—subsections 42AF(1) and 42AG(1) of the Administration
Act).
If the job seeker is found to have had a reasonable excuse
for not meeting the requirement or refusing work, then their payment is resumed
and they receive back-pay for the payment suspension period after they have
fulfilled their outstanding requirement.[70]
If the Secretary determines that a job seeker has
committed persistent mutual obligation failures without reasonable excuse, he
or she must either reduce an instalment of the job seeker’s payment and suspend
the payment for a period, or cancel the payment—subsections 42AF(2)(c) and (d)
of the Administration Act. Where the Secretary determines that a job
seeker has committed a work refusal failure without reasonable excuse then he
or she must cancel the job seeker’s payment (subsection 42AG(2) of the Administration
Act). Under subsections 42AF(3A) and (3B) the Secretary has the discretion
to waive penalties for mutual obligation failures under certain circumstances,
but there is no scope for them to waive penalties for work refusal failures.
Where the Secretary determines that a job seeker has
committed an unemployment failure, he or she is obliged to cancel their payment
(subsections 42AH(1) and (2)). As is the case for work refusal failures without
a reasonable excuse, the Secretary is unable to waive these penalties.
The main effect of items 1 to 13 in Schedule 3 is
to allow for the Secretary to not impose penalties in relation to mutual
obligation, work refusal, and unemployment failures, so long as the Secretary
is satisfied that the job seeker had a reasonable excuse for the failure.
As the Explanatory Memorandum indicates, the Government
has made a number of changes to the Targeted Compliance Framework recently.[71]
These include: allowing job seekers with a valid excuse for not meeting a
mutual obligation requirement to not have to meet the requirement in order to
have their payment suspension lifted; and allowing job seekers two business
days to contact their employment services provider before suspending their
payments for participation failures. These changes have been made largely in
response to the COVID-19 pandemic and the associated shift away from
face-to-face servicing of job seekers.
The Explanatory Memorandum points out that the increased
discretion allowed to the Secretary under the proposed changes in Schedule 3
may be necessary to ensure that job seekers are not unfairly penalised as a
result of the introduction of the NESM:
The amendments made by Schedule 3 are related to the
amendments to the social security law made by Schedule 1—for example where a
person enters into an employment pathway plan using the streamlined processes
but has trouble complying and decides to go back online to vary their plan but
in the meantime commits a failure, Schedule 3 makes clear that there is no
requirement for a payment suspension to occur.[72]
Schedule 4— Amounts not counted as income
The purpose of Schedule 4 is to ensure that payments and
benefits from Australian Government and state and territory government
employment-related programs are not treated as income for the purpose of social
security law.
Currently subsection 8(8) of the Social Security Act
provides that certain payments or benefits are not income for the purposes of
the Act. This means that they are not factored into income tests affecting
payability or rates of pensions and benefits under the Act. Item 2 inserts
proposed subsection 8(8AC) with the effect of allowing the Employment
Secretary to make a notifiable instrument determining that payments made by
Commonwealth programs (proposed paragraph 8(8)(zv)) or state and territory
programs (proposed paragraph 8(8)(zw)) are not income for the purpose of
the Social Security Act.
Schedule
5—Approved programs of work for income support payment
All job seekers have mutual obligation requirements—these
are the things that job seekers must do on an ongoing basis in return for the
receipt of income support payments. Following 12 months on payment, job seekers
are required to undertake additional activities for six months of every year.
This is described as an annual activity requirement.[73]
As a part of an eligible job seeker’s mutual obligation
requirements they may be required to participate in a work-focused program
delivered by a community or private enterprise organisation. This requirement
is typically in addition to the requirement to attend appointments with
employment service providers and other relevant third-party organisations and
to undertake job search, among other things. Participants in an approved
program of work may receive a supplement of $20.80 for each fortnight in which
they participate in the program. This is to assist with the additional costs
associated with program participation.
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 Safety, Rehabilitation and Compensation Act 1988, the Superannuation
Guarantee (Administration) Act 1992 or the Fair Work Act 2009.[74]
The Department of Education, Skills and Employment purchases personal accident
insurance and public and/or product liability insurance to cover job seekers
while they undertake their placements in the National Work Experience Program
or Work for the Dole (at present these are the only approved programs of work).[75]
Host organisations are also required to ensure that ‘the workplace and the
activity being carried out meets all work health 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’.[76]
Currently, under subsection 28(1) of the Social
Security Act, the Secretary may declare in writing that a particular
program of work is an approved program of work for income support payment. Item
1 amends this subsection so that any declaration by the Secretary will be a
legislative instrument. As a legislative instrument, the declaration would be
subject to Parliamentary scrutiny and potential disallowance.[77]
Schedule
6—Activities that do not give rise to employment under certain industrial
relations legislation
Social security law stipulates that job seekers who are
required to participate in an approved program of work or undertake an activity
(other than suitable paid work) as a condition for the receipt of income
support are not taken to be a worker or employee of the Commonwealth for the
purposes of certain Commonwealth industrial relations legislation (specified
above).[78]
The main effect of item 1—which inserts into the Social Security Act
proposed section 40—is to add to the existing categories of job seekers
not taken to be a worker or employee of the Commonwealth, participants in an
employment program determined by the Secretary by notifiable instrument.
The Australian Council of Trade Unions (ACTU) is strongly
opposed to the changes that would be enabled by Schedule 6 of the Bill. Its
stated concerns are twofold.
Firstly, the ACTU has argued that the addition of the
employment program category ‘further codifies a loss of rights for unemployed
Australians when they are engaged in work as part of their unemployment mutual
obligation requirements’.[79]
As the ACTU sees it, it is unacceptable for job seekers, when engaged in work
or work-like activities, and, in some cases, to the financial benefit of the
organisations in which they work, to be denied access to basic workplace
rights, minimum wages and the protection of occupational health and safety
legislation.[80]
While acknowledging that the Government does use insurance arrangements to
provide occupational health and safety cover for job seekers engaged in
work-like activities, the ACTU questions why tax payers should be required to
foot the bill for this cover when it is often employers who are the main
beneficiaries of job seeker participation in their organisations.[81]
Secondly, the ACTU is concerned that, by allowing the
Secretary to declare through a notifiable instrument that programs are
employment programs, the Bill would bypass the legislated restrictions that
apply to approved programs of work[82]
(see above) and EPP processes that provide some administrative restriction and
enable some degree of job seeker choice around the institution of work-like
activities.[83]
In the ACTU’s view, the change would both make it easier for the Secretary to
create programs that ‘do not provide job seekers with basic workplace
protections’ and allow the Government to avoid parliamentary oversight.[84]
In the context of the Senate Standing Committee on
Education and Employment inquiry into the Bill, Senator Rachel Siewert
questioned why employment programs need to be determined by legislative
instruments and not primary legislation.[85]
The Department responded that this was necessary to accommodate the increased
flexibility in meeting mutual obligation requirements that will be afforded to
job seekers under the NESM and its Points Based Activation System.[86]
Under this system, job seekers will be able to participate in work-like activities
that are not entered into their EPPs, but nevertheless gain credit (points) for
their participation in these activities. Hence, the Department argues:
Specifying employment programs in a notifiable instrument
reflects the need to be able to vary what programs people undertake; to
maintain flexibility in what job seekers may undertake as part of their mutual
obligation requirements, while allowing flexibility for the activity not to be
directly in a person’s Job Plan.[87]
The changes are to ensure that job seekers who participate
in work-like activities that are not an approved program of work or an activity
included in their EPP are similarly not to be taken as a worker or employee of
the Commonwealth for the purposes of certain Commonwealth industrial relations
legislation.
Schedule 7—Youth
Allowance ordinary income free area
The amendments in Schedule 7 affect Youth Allowance
recipients who are undertaking full-time study as a requirement of an EPP.
The amendments aim to prevent these recipients from
benefiting from income testing arrangements that apply to Youth Allowance recipients
who are deemed to be ‘undertaking full-time study’ for the purposes of the Social
Security Act (the term ‘undertaking full-time study’ is defined in section
541B of that Act).
This problem does not arise for JobSeeker Payment because
JobSeeker Payment does not have a separate set of income testing arrangements
for recipients deemed to be ‘undertaking full-time study.’ People 25 or older
who are deemed to be ‘undertaking full-time study’ are able to apply for a
separate payment—Austudy.
A single
payment administered as two separate payments
Youth Allowance is a single payment but the Government
seeks to maintain a clear distinction between two groups of recipients. In
administrative documents these two groups are referred to as ‘job seekers’ and
‘students and apprentices.’ According to the Explanatory Memorandum:
While administratively, and in long-standing policy, Youth
Allowance paid to students, to apprentices and to job seekers are treated as
separate payments, they are legally the same payment in social security law.[88]
This terminology can be confusing because some Youth
Allowance recipients classed as ‘job seekers’ are undertaking full-time study
and not all ‘job seekers’ are required to engage in job search.[89]
Youth Allowance was created in 1998 to replace five
separate payments covering people who are unemployed, sick or studying. The new
payment was designed to remove financial incentives for young people to choose to
be unemployed rather than participating in education and training.[90]
While social security law treats Youth Allowance as a
single payment, the Social Security Act applies different conditions to
‘students and apprentices’ and to ‘job seekers’. One example is income testing.
Income
testing and the ordinary income free area
Like most other income support payments, Youth Allowance
is income tested. Recipients can earn up to a certain amount (the ‘ordinary income
free area’) without it affecting their payment. Any income their receive over
this amount reduces their payment.
The income free area for job seekers is significantly
lower than the income free area for full-time students and Australian apprentices.
For job seekers, their payment is reduced when they earn over $150 a fortnight.
For students and apprentices their payment is reduced when they earn over $437
a fortnight.[91]
The
distinction between ‘job seekers’ and ‘full-time students’
To maintain this difference in treatment, the Government
needs to maintain a clear distinction between ‘job seekers’ and ‘full-time
students and apprentices’.
Youth Allowance paid to ‘students and apprentices’ is
known as Youth Allowance (student) or Youth Allowance (full-time students and
Australian Apprentices). Youth Allowance paid to ‘job seekers’ is known as
Youth Allowance (other) or Youth Allowance (job seeker).
‘Students and apprentices’ are those ‘undertaking
full-time study’ as this term is defined in the Act. The Social Security Act
defines the term ‘undertaking full-time study’ in section 541B.[92]
The definition excludes full-time study in courses that are not ‘determined,
under Section 5D of the Student Assistance
Act 1973, to be a secondary course or a tertiary course for the purposes
of that Act.’ Section 5D allows the Minister to make this determination using
an instrument. This is the Student Assistance
(Education Institutions and Courses) Determination 2019. The term ‘job
seeker’ is not defined in the Social Security Act.
In practice the distinction between the two groups of
Youth Allowance recipients is usually clear. Apprentices and people who are
intending to undertake full-time study in an approved course receive payment
under the conditions for Youth Allowance (full-time students and Australian
Apprentices).
Other claimants are paid under the conditions for Youth
Allowance (other). When coming onto payment, claimants are normally required to
engage with employment services before they can begin receiving payments. As
part of engaging with employment services ‘job seekers’ are required to enter
into an EPP which outlines their mutual obligation requirements.[93]
Under some circumstances a person’s EPP can include
undertaking full-time study. However, the course can only be approved if it is
less than 12 months in duration.[94]
Blurring the
distinction
According to the Explanatory Memorandum, an increase in
opportunities for ‘job seekers’ to engage in study risks blurring the
distinction between ‘job seekers’ and those deemed to be ‘undertaking full-time
study’:
Recent Government measures have also allowed greater
flexibility for job seekers to undertake study and training as part of their
mutual obligation requirements contained in their employment pathway plan. This
increases the potential that these job seekers could be considered as full-time
students and accessing policies designed for students who are undertaking
longer qualifications, and who are not required to meet mutual obligation
requirements.[95]
From September 2020 more flexible mutual obligation
arrangements will operate to encourage study in high labour demand areas.[96]
What
Schedule 7 does
The rules for calculating a Youth Allowance recipient’s rate
of payment are set out in Part 3.5 of the Social Security Act (the Youth
Allowance Rate Calculator).
The personal income test has three parts:
- an
income free area. This is the amount a recipient can earn before their payment
is reduced. This is set by point 1067G-H29
- a
lower range reduction. For every dollar earned over the income free area and
under the upper range, the person’s payment is reduced by 50c. This is set by
point 1067G-H32
- an
upper range reduction. For every dollar earned over the lower range the
person’s payment is reduced by 60c. This is set by point 1067G-H33.
Table 1:
current income free area, lower range and upper range for Youth Allowance
recipients
| |
Full-time study |
New apprentice |
Other |
| Income free area |
$437 |
$437 |
$150 |
| Lower range |
$438–524 |
$438–524 |
$151–$250 |
| Upper range |
$525 |
$525 |
$251 |
Source: Services
Australia, A guide to Australian Government payments: 1 April to
30 June 2021, Australian
Government, Canberra, 2021, pp. 36–37.
The amendments in Schedule 7 insert the words ‘other than
in compliance with a requirement contained in an employment pathway plan that
is in force in relation to the person’ into paragraphs 1067G-H29(a),
1067G-H32(a) and 1067G-H33(a). The effect of these amendments is to exclude
‘job seekers’ from the provisions that apply to recipients deemed to be
‘undertaking full time study’.
Schedule
8—Start day for Jobseeker Payment and Youth Allowance
Schedule 8 implements a savings measure announced in the
2021–22 Budget. This measure is part of the New Employment Services Model. The Government
expects savings of $191.6 million over the forward estimates.[97]
The provisions in Schedule 8 make savings by delaying the
payment start day for Jobseeker Payment and Youth Allowance (other) claimants receiving
Digital Services. Instead of receiving a payment calculated from the date they
claimed payment it will be calculated from the date they enter into an EPP
online.
The Government argues this will make the income support
system fairer because it will align the treatment of recipients in Digital
Services with those in Enhanced Services. Under the current provisions, the
start day for jobseekers receiving Enhanced Services will be either the day they
attend the interview with their employment services provider (if that occurs
within two business days of them being given notice of the requirement to
attend) or the day that they are given notice of the requirement to attend.[98]
What is a
‘start day’?
Jobseeker Payment and Youth Allowance (other) are paid in
arrears so Services Australia needs to work out the first day on which a person
became entitled to a payment. This is the person’s start day. According to the
Department of Social Service’s Social Security Guide: ‘The start day is
the first day for which a social security payment is payable to a person, and
hence the day from which the person is paid.’[99]
The rules for working out start days for payments and
health care cards are set out in Schedule 2 of the Administration Act.
Historical
background—RapidConnect
In 2005 the Government introduced RapidConnect, a policy
designed to make sure job seekers engaged with an employment services provider
before receiving income support.
Under the 2005 change, job seekers without an exemption
from RapidConnect could not receive their first payment until they had an
interview with an employment services provider. However, if they attended an
interview within 14 days, their payment start day would be the day they made
their claim (unless they were serving a waiting period). This meant that their
payment would be backdated.[100]
The Social Services
Legislation Amendment (Welfare Reform) Act 2018 changed the rules so
that the person’s start day became the day they attended an interview with an
employment services provider rather than the day they made their claim for income
support.[101]
This strengthened the incentive for job seekers to engage with employment
services quickly as well as delivering savings.
Part of the rationale for RapidConnect was to divert people
from the income support system—to push them into work before they received
their first income support payment. According to a 2005 Department of
Employment and Workplace Relations submission:
Directing people towards work and employment services prior
to entering the income support system is critical because evidence has shown
that once someone enters the welfare system, they are far more likely to use
the system again. Early intervention can be useful in two ways. It can help
reduce the time people stay on welfare (duration of spells). It can also reduce
the need for income support by motivating them to retain an existing job or
finding a new one before applying for benefits.[102]
In response to COVID-19, the Government ceased operating
RapidConnect in April 2020.[103]
The move to
digital self-servicing
In 2018 the Government began trialling Online Employment
Services.[104]
The Government’s experience with online servicing informed the Digital
Servicing component of the New Employment Services Trial.[105]
In April 2020 in response to COVID-19 the Government moved
to Online Employment Services for new entrants into the employment services
system.[106]
One of the consequences of the shift to online servicing was
that the provisions of Administration Act that delayed a claimant’s
start day until they had attended an interview with an employer no longer
applied.[107]
Participants in Online Employment Services complete their Employment Pathway
Plan online and are not required to meet with a provider. This means their
first payment can be backdated to the day they made their claim for income
support.
Under the Act’s current provisions, participants in the
New Employment Services Model’s Digital Services will be treated more
favourably than participants in Enhanced Services. Because participants in
Enhanced Services will be required to attend an interview with a provider their
start day will be the day of the interview (or in some circumstances, the day
they were notified that they were required to attend an interview). Their first
payment will not be backdated to the day they made their claim.
Amendments
Amendments in Schedule 8 of the Bill are intended to treat
participants in Online Employment Services and Digital Services in the same way
as employment services participants who are required to attend an interview. To
achieve this item 14 of Schedule 8 to the Bill inserts proposed clause
4B into Schedule 2 of the Administration Act.
For Jobseeker payment and Youth Allowance (other)
recipients, clause 4B sets the person’s start day as the day they
accepted their EPP online (subclause 4B(2)). However, under subclause
4B(3), if a person intended to enter a plan on a certain day and failed to so,
and they satisfy the Secretary that the failure was due to circumstances beyond
their control, then the person’s start date is either the date of notice to
enter the EPP or the day they made the claim.
Schedule
9—Repeals of spent provisions
The amendments in Schedule 9 are uncontroversial. They
repeal provisions relating to payments and programs that have ceased. These
are:
- the
training supplement
- Green
Army Allowance
- Green
Army Programme and
- National
Green Jobs Corps program.
Schedule 10—Contingent amendments
Schedule 10 makes minor amendments to the Social
Security Act that have no practical impact on recipients of income support.
The amendments remove items that will become redundant due to the operation of
amendments to the Act made by the Social Services
Legislation Amendment (Welfare Reform) Act 2018 and this Bill.
[1]. Department
of Education, Skills and Employment (DESE), New
Employment Services Model, DESE website; DESE, jobactive
Deeds and Deed Variations, DESE website; M Cash (Minister for Jobs and
Innovation), Reforming
future Employment Services, media release, 22 January 2018.
[2]. Employment
Services Expert Advisory Panel, I
want to work: employment services 2020 report, Department of Jobs and
Small Business, Canberra, 2018, p. 4.
[3]. Ibid.,
p. 24.
[4]. Australian
Government, Budget
Measures: Budget Paper No. 2: 2019–20, pp. 149–150.
[5]. Ibid.
[6]. DESE,
New
Employment Services Model, DESE website.
[7]. DESE,
Online
Employment Services Trial evaluation report, DESE, Canberra, [2020], p.
24.
[8]. Ibid.
[9]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 3.
[10]. Senate
Education and Employment Legislation Committee, Social
Security Legislation Amendment (Streamlined Participation Requirements and
Other Measures) Bill 2021 [Provisions], Senate, Canberra, 18 June 2021,
p. 31.
[11]. Ibid.,
pp. 33 to 47.
[12]. Item
123 of Schedule 1 to the Bill
[13]. Item
2 of Schedule 4 and item 1 Schedule 6 to the Bill
[14]. Item
2 of Schedule 2 to the Bill.
[15]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2021, 16 June 2021, pp. 40–44.
[16]. Labor
Senators, Dissenting
report, Senate Education and Employment Legislation Committee, Inquiry
into the Provision of the Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, The Senate,
Canberra, 2021, p. 40.
[17]. Australian
Greens Senators, Dissenting
report, Senate Education and Employment Legislation Committee, Inquiry
into the Provision of the Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, The Senate,
Canberra, 2021, pp. 46–47.
[18]. Senate Education and Employment Legislation Committee, Submissions
to the Inquiry into the Provision of the Social Security Legislation
Amendment (Streamlined Participation Requirements and Other Measures) Bill 2021,
The Senate, Canberra, 2021.
[19]. Senate
Education and Employment Legislation Committee, Social
Security Legislation Amendment (Streamlined Participation Requirements and
Other Measures) Bill 2021 [Provisions], Inquiry homepage.
[20]. Australian
Council of Social Service (ACOSS), Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Provision of the Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, [Submission no.
4], 9 June 2021, p. 2.
[21]. National
Employment Services Association (NESA), Submission
to the Senate Education and Employment Legislation Committee, Inquiry into
the Provision of the Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, [Submission no. 13],
2021, p. 7.
[22]. Anglicare
Australia, Submission,
Submission to the Senate Education and Employment Legislation Committee, Inquiry
into the Provision of the Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, [Submission no.
1], 9 June 2021, p. 1.
[23]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 15.
[24]. The
term Youth Allowance (other) and the distinction from Youth Allowance (student
and apprentice) is explained in the discussion for Schedule 7.
[25]. The
Statement of Compatibility with Human Rights can be found at page 16 of the
Explanatory Memorandum to the Bill.
[26]. Parliamentary Joint Committee on Human Rights, Human
rights scrutiny report, 7, 2021, 17 June 2021, pp. 27–49.
[27]. Parliamentary
Joint Committee on Human Rights, Ministerial
Responses, Australian Parliament website.
[28]. Participation
payments are Jobseeker Payment, Youth Allowance for persons who are not
apprentices or full-time students, Parenting Payment for persons who have
participation requirements and special benefit for certain visa holders.
[29]. For
an overview of mutual obligation requirements see Department of Social Services
(DSS), ‘3.11
Mutual obligation requirements’, Guide to social security law,
version 1.282, DSS website, 10 May 2021.
[30]. While
Social Security law uses the term Employment Pathway Plan, outside of the
legislation the EPP is referred to as a Job Plan. In the case of Disability
Support Pension recipients who are less than 35 years of age and who have
compulsory participation requirements, the plan is a Participation Plan.
[31]. For
further details on EPPs, see the Job
Plan and Scheduling Mutual Obligation Requirements Guideline.
[32]. C
Ey, Social
security payments for the unemployed, the sick and those in special
circumstances, 1942 to 2012: a chronology, Research paper series,
Parliamentary Library, Canberra, 2012, p. 3.
[33]. Ibid.
[34]. Ibid.
[35]. DESE,
Job
Seeker Classification Instrument (JSCI), DESE website; DESE, Job Seeker Snapshot,
DESE website. The JSCI is a questionnaire that is used to measure each job
seeker’s relative difficulty in gaining and maintaining employment and those
job seekers who have complex or multiple impediments to gaining employment. It
thus enables job seekers to be allocated to the most appropriate level of jobactive
assistance (stream A, B or C) or other services, but also enables the
identification of job seekers who may require a more comprehensive assessment
(that is, an Employment Services Assessment (ESAt)).
Job seekers are asked a series of questions
in relation to a range of factors (including things like Indigenous status,
disability/medical conditions, educational attainment and vocational
qualifications). The possible responses to each question are assigned points
depending on the relative contribution the related factor makes in determining
the likelihood of a person remaining unemployed for at least a year. The points
allocated to the job seeker’s responses are then added together to calculate
the JSCI score.
[36]. NESA,
NESA
response to questions on notice, Senate Education and Employment Committee
Legislation Committee Inquiry into the Social Security Legislation (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 8.
[37]. Per
Capita, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Social Security Legislation Amendment (Streamlined Participation Requirements
and Other Measures) Bill 2021 [Provisions], [Submission no. 11], June 2020
[sic], p. 2.
[38]. See,
for example, section 501 of the Social Security Act.
[39]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 59.
[40]. Ibid.
It is not clear how this sits with Government claims
that under the NESM job seekers will have more options and choice in how to
meet their obligations. Currently, it is difficult to determine just how
reasonable the requirement to enter into an EPP is in the case of job seekers
self-servicing online. It is to be assumed that job seekers will be largely
selecting from a drop-down list of fields (compulsory and voluntary activities)
and we do not know what this list looks like. To the extent that the list is
generated through reference to the job seeker’s JSCI details it may or may not
be reasonable. The point is that without scrutiny of the EPP, it is difficult
to know.
[41]. See,
for example, section 501A of the Social Security Act.
[42]. The
Guidelines
currently specify that activities in the EPP must not place unreasonable
demands on job seekers and that job seekers must be capable of doing any
activity and meeting all the requirements included in their EPP.
[43]. Antipoverty
Centre, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Social Security Legislation Amendment (Streamlined Participation Requirements
and Other Measures) Bill 2021 [Provisions], [Submission no. 9], p. 4.
[44]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 61.
[45]. Proposed
subsection 40G(1) essentially replicates the requirements of the work
test—that is, that a job seeker should be actively seeking and willing to
undertake paid work.
[46]. Australian
Council of Social Service (ACOSS), Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Social Security Legislation Amendment (Streamlined Participation Requirements
and Other Measures) Bill 2021 [Provisions], op. cit., p. 10.
[47]. Ibid.
[48]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 65. See also Social Security
(Employment Pathway Plan Requirements) Determination 2015.
[49]. Ibid.,
p. 67.
[50]. Arguably,
the word ‘special’ was always redundant given that there is a requirement under
the Social Security Act that the Secretary must be satisfied that the
job seeker is experiencing circumstances that are beyond their control. This is
effectively acknowledged in the Explanatory Memorandum (p. 66) which states
that ‘a range of commonplace adverse circumstances which are out of a person’s
control, for example illness or injury, may make it unreasonable to expect them
to comply with requirements. Analysis of whether the circumstances are
‘special’ or out of the ordinary is unnecessary in this context, therefore
section 40L does not require that circumstances be special’.
[51]. Proposed
subsection 40L(4) of the Administration Act. For the current
arrangements see, for example, subsection 502F(1A) of the Social Security
Act. CDP participants were granted an exemption from this rule on the basis
that Indigenous Australians—who make up a vast majority of CDP
participants—statistically experience higher levels of alcohol or drug
dependency compared with the Australian population generally. The Community
Development Program (CDP) is to be replaced by a new remote jobs program in
2023. See Australian Government, Budget measures:
budget paper no. 2: 2021–22, p. 176.
[52]. See,
for example, subsection 502F(2) of the Social Security Act.
[53]. NESA,
NESA
response to questions on notice, Senate Education and Employment Committee
Legislation Committee Inquiry into the Social Security Legislation (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 7.
[54]. Social
Security Act, section 502C.
[55]. Ibid.,
sections 542F (Youth Allowance); 602B (Jobseeker Payment) and 731DA (Special
Benefit).
[56]. See,
for example, section 502G of the Social Security Act.
[57]. See,
for example, section 603AA of the Social Security Act.
[58]. Ibid.,
section 602D.
[59]. See,
for example, subsection 606(5) of the Social Security Act.
[60]. St
Vincent de Paul Society, Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Social Security Legislation Amendment (Streamlined Participation Requirements
and Other Measures) Bill 2021 [Provisions], [Submission no. 2],
9 June 2021, p. 2.
[61]. See,
for example, section 541D of the Social Security Act.
[62]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 79.
[63]. Senate
Education and Employment Legislation Committee, Social
Security Legislation Amendment (Streamlined Participation Requirements and
Other Measures) Bill 2021, Official committee Hansard, (proof), 11 June
2021, p. 43.
[64]. Explanatory
Memorandum, Financial Framework Legislation Amendment Bill (No. 3) 2012, p.
1.
[65]. Williams
v Commonwealth of Australia [2012]
HCA 23; A Lynch, ‘Commonwealth
spending after Williams (no 2): has the new dawn risen?’, Public Law
Review, 26(2), 2015.
[66]. Administration
Act, section 42AC.
[67]. Ibid.,
section 42AD.
[68]. Ibid.,
section 42AE.
[69]. Ibid.
[70]. The
determination as to whether or not a job seeker has a reasonable excuse for not
meeting a requirement is based on matters set out in the Social Security
(Administration)(Reasonable Excuse - Participation Payments) Determination 2018.
These include things like whether or not the job seeker had access to safe,
secure and adequate housing; whether they were unable to comprehend a
requirement or instruction due to illness, injury, impairment, or disability;
and whether they were experiencing drug or alcohol misuse or dependency.
[71]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 90.
[72]. Ibid.
[73]. Australian
Government, Social Security Guide, ‘3.11.4
Annual activity requirement’.
[74]. Social
Security Act, section 120.
[75]. DESE,
Keeping
you safe at Work for the Dole - information for job seekers, DESE website;
DESE, National
Work Experience Programme, DESE website.
[76]. Department
of Education, Skills and Employment, ‘Answer to Question on Notice: Lack of
protections for workers undertaking employment programs’, [Questioner: R
Siewert], Question
IQ21-000057, Senate Standing Committee on Education and Employment, 11 June
2021.
[77]. Legislation Act
2003, section 42.
[78]. Social Security Act, section 120.
[79]. Australian
Council of Trade Unions (ACTU), Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Social Security Legislation Amendment (Streamlined Participation Requirements
and Other Measures) Bill 2021 [Provisions], [Submission no. 3], 9 June
2021, p. 2.
[80]. Ibid.
[81]. Ibid.,
p. 3.
[82]. Social
Security Act, section 28.
[83]. Australian
Council of Trade Unions (ACTU), Submission
to Senate Education and Employment Legislation Committee, Inquiry into the
Social Security Legislation Amendment (Streamlined Participation Requirements
and Other Measures) Bill 2021 [Provisions], op. cit., p. 3.
[84]. Ibid.,
p. 4.
[85]. Department
of Education, Skills and Employment, ‘Answer to Question on Notice: Lack of
protections for workers undertaking employment programs’, op. cit.
[86]. See
Department of Education, Skills and Employment (DESE), ‘New
Employment Services Model—information for job seekers, DESE website, 14 May
2021.
[87]. Ibid.
[88]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined Participation
Requirements and Other Measures) Bill 2021 p. 98.
[89]. For
example, a ‘job seeker’ may be exempted from job search requirements or be
deemed to be fully meeting their mutual obligation requirements without looking
for work. See: Department of Social Services, Social security guide, 3.11.5
Exemptions – overview, and 3.11.6 Fully
meeting requirements.
[90]. J
Newman, A Vanstone, Common
youth allowance, media release, 17 June 1997. Explanatory
Memorandum, Social Security Legislation Amendment (Youth Allowance) Bill
1997, p. 2.
[91]. Services
Australia, A
guide to Australian Government payments: 1 April to 30 June 2021,
Australian Government, Canberra, 2021, p. 36.
[92]. The
term ‘new Apprentice’ is defined by an instrument made under section 23(7) of
the Social Security Act—Social Security (New
Apprentice) Determination 2016.
[93]. Department
of Social Services (DSS), Social security guide, ‘3.11 Mutual
obligation requirements’, 10 May 2021.
[94]. DSS,
Social security guide, ‘3.11.3.10
Study & training’, 10 May 2021.
[95]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021 p. 98.
[96]. DSS,
Social security guide, ‘3.11.3.10
Study & training’, 10 May 2021.
[97]. Australian
Government, ‘Part 2: payment measures, Budget
measures: budget paper no. 2: 2021–22, May 2021, pp. 92–93.
[98]. Explanatory
Memorandum, Social Security Legislation Amendment (Streamlined
Participation Requirements and Other Measures) Bill 2021, p. 99.
[99]. DSS,
Social security guide, ‘8.3.1 Start
days - general provisions’, 10 May 2021.
[100]. Explanatory
Memorandum, Employment and Workplace Relations Legislation Amendment
(Welfare to Work and Other Measures) Bill 2005, pp. 43–44.
[101]. DSS,
Department of Employment (DoE) and Department of Human Services (DHS), Submission
to Senate Community Affairs Legislation Committee Inquiry into the Social
Services Legislation Amendment (Welfare Reform) Bill 2017, 4 August 2017,
p. 16.
[102]. Department
of Employment and Workplace Relations, Submission
to the Senate Community Affairs Legislation Committee, Inquiry into the
Employment and Workplace Relations Legislation Amendment (Welfare to Work and
other Measures) Bill 2005 and the Family and Community Services Legislation
Amendment (Welfare to Work) Bill 2005, p. 12.
[103]. DESE,
Online
Employment Services Trial evaluation report, op. cit., p. 14.
[104]. Ibid.,
p. 24.
[105]. Ibid.,
p. 26.
[106]. DESE,
‘Online
Employment Services’, jobactive website, 9 March 2021.
[107]. These
provisions are in clause 4A of Schedule 2 of the Administration Act.
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